The Diary of Thomas Burton: 26 December 1656

Friday, December 26,1656.

Judge Lawrence came this day in, to serve for the Isle of Wight.

We stayed one hour in the House before Mr. Peters (fn. 1) came to pray with us.

Mr. Speaker. Here is a short Bill which concerns a member. I desire it may be read.

Colonel Sydenham. There is a Bill concerning augmentations, which was to be read the first time this day.

An Act for the establishing of divers lands in the counties of Dublin and Kildare, settled by letters patent upon John Blackwell, (fn. 2) his heirs, and assigns. Read the first time.

Mr. Robinson. I am against reading this Bill again. I could like it better if a General Bill came in to confirm these purchases and adventures, than by particular Bills. It may haply be against the General Bill. Again, in my judgment, the letters patent ought to have been recited; for aught we know it may be against the former settlement. It may be made high treason, for aught we know, to come into this gentleman's lands. We see nothing of the letters patent, what they are.

Sir John Reynolds. This gentleman is mistaken. The letters patent are recited as much as need be. Surely, it has been so debated in the council, they are so faithful as not to suffer any such clause, as to make any such thing high treason, as is alleged. We have more confidence in them than so. Nor is this against the General Bill.

Per Captain Baynes. Resolved, that this Bill be read the second time on Monday next.

Captain Baynes. It is proper to put all private business upon that day, and not take up your time.

Resolved, that a petition of Sir Hardress Waller, touching some adventurers in Ireland, be referred to the former Committee for the like petitions.

Resolved, that two more members (fn. 3) be added to that Committee.

Per Captain Baynes. Resolved, that the Bill for Yorkshire Cloth (fn. 4) be read on Friday next, the second time.

Per Colonel Sydenham. An Act for the raising of maintenance for a minister at Newport, in the Isle of Wight, was read the second time.

Colonel Sydenham. There are some blanks to be filled up I desire it may be committed.

Mr. Downing seconded the motion.

Mr. Nathaniel Bacon. I except, because no provision is made for repairing the church; otherwise it is a good Bill.

Sir Christopher Pack. It is a good Bill. I wish there were more of them; but I would have it provided in the Bill whether the tenant or landlord shall pay the tax.

Colonel Hewitson. I except against the clause, for imprisonment of such as have no distress.

Resolved, that this Bill be committed to a Committee to meet to-morrow afternoon in the duchy chamber.

Mr. Speaker. Here are five or six up, I cannot hear all together; but I must acquaint you with a letter from the Lord Protector. (fn. 5)

" Having taken notice of a sentence by you, given against one James Nayler, albeit we do abhor such wicked opinions and practices, we, being interested in the Government, desire to know the grounds and reasons how you proceeded herein without our consent."

Mr. Nathaniel Bacon. I move that the Report before you (fn. 6) might be sent to his Highness, for his satisfaction therein.

Mr. Highland. That will not answer the end. The desire of the letter is that he might be satisfied with the grounds and reasons why you passed this sentence upon him, without his consent. Being equally entrusted with the Government, he ought to be satisfied.

Major Audley. You ought not to have denied this person to have spoken when he desired it at the bar. (fn. 7) Were he never so wicked, you ought to give him the liberty of an Englishman. I am satisfied, that though you have passed this sentence upon him, there may be much said against it. If he had been left to the law, it had been better. I fear the danger of such a precedent. A very fierce speech he made on Nayler's behalf against the judgment, &c.

Mr. Lawrence, a judge from Scotland for the Isle of Wight, questioned the jurisdiction. He said there were but three powers; arbitrary, we would not own; legislative, is upon a joint authority by the Instrument. If by a judicatory power, we must have a law; otherwise our proceedings are not justifiable.

It was the first day he came into the House, but, I doubt, at the rate of such distractions, it may be thought soon enough.

Mr. Rouse. It is true what this gentleman has said, the question is only about the jurisdiction. The justice is clear enough. I would have this debated in a Grand Committee, and the records looked into, whether the House of Lords could de jure pass such a sentence. Either you have done what you ought to have done in executing part of your sentence, or you have not. This will remain upon your records, and if you have done what you cannot justify, you must be whipped for whipping James Nayler. It was but a mock punishment, as they say. I would have you tender in your honour, and be careful how you violate your jurisdiction. I know it is not his Highness's intentions to offer the least injury to it.

Colonel Holland. A merchant's wife told me that there was no skin left between his shoulders and his hips. It was no mock punishment. I could wish the business were ended amongst you, that the remainder of the punishment might be remitted, and that would give his Highness satisfaction.

Sir Christopher Pack. I shall acquaint you with what the gaoler told me. There were but three places where the skin was any way hurt or broken, and it was no bigger than a pin's head. This gentleman is surely misinformed.

Colonel Hewitson proposed, that a Committee might be appointed to find out a way how to give his Highness an account in this business. If the person was favoured in the punishment, it was the lenity of the executioner, not of the sentence. I was against it in my opinion.

Sir William Strickland. It is not possible for us to stop the foul mouths of such a wicked generation. We are convinced of the justice of our proceedings, such as, I doubt not, but will, in spite of them and all their foulest aspersions, be made out to the world. I doubt the ministers (fn. 8) are able to give but a very small account of him.

Mr. Downing. I am sorry we have such a person in England as James Nayler, to give us all this trouble. Those that think his Highness's letter seems to question why we passed this sentence without his consent, are mistaken. The only desire of it is, an account of the grounds and reasons whereupon we proceeded to this sentence. The grounds are the papers and records before you. As to the jurisdiction, I suppose it is no less than the power of a Parliament, the House of Lords united. We have no need of them I hope. Such like things as these have been done by the House of Lords. We have not proceeded to life and member, but only to a corporal punishment, which we have frequently done upon several other occasions, and may, I hope, do.

Sir John Reynolds. Seeing these gentlemen of the long robe are silent, I shall venture my opinion. I gave my judgment freely in it before, that we ought first to have stated our jurisdiction. 1 would have it referred to a Committee to consider of our jurisdiction, how far the House of Lords and House of Commons are united, and how far this sentence may stand with the Instrument of Government. I observe the gentlemen of the long robe divided in their opinions, and well may we be divided.

I think there was nothing of the punishment spared, but what fell by. That is not the dispute before us. I would have us seriously to debate this matter, that we may give his Highness an account of it. The consequence is dangerous, if we should draw these things into precedent.

Captain Baynes. I was against bringing this business into the House at the first, as being not satisfied how we had a law to punish him; but as it is now, I would it debated freely in the House how far the jurisdiction will extend. The legislative power is not to be taken up but upon an extraordinary score. This precedent may be of dangerous consequence.

Mr. Solicitor-General. To the order of your proceedings:— The whole question before you is, why a judgment, without my Lord Protector ? The letter says, why a judgment without us. " We desire," saith the letter, " to know the grounds and reasons whereupon you made such a judgment." I desire that we might have leave to speak against your judgment.

Mr. Godfrey. This gentleman moves very properly to have leave to speak against the judgment. If you give this leave I cannot but tremble to think of the consequence. I am sorry this happens, for you to go about to arraign your own judgment, which you have assumed to yourselves, asserted it upon a solemn debate, not passed sub silentio. Hitherto you have declared your judgment upon it. If you revoke this, you must not only cry peccavi to James Nayler for what is passed, but to his Highness also, and also to the nation. Here is your power asserted on one hand; the supreme magistrate, on the other hand, desiring an account of your judgment. Where shall there be tertius Arbiter. It is a hard case. No judge upon earth. I shall humbly move that a Committee might be appointed to acquaint his Highness with the sad consequences of such a dispute, and to desire him to lay aside the further questioning of this judgment.

Mr. Altorney-General. We are bound up by our own judgment. We cannot now speak against it, nor against the fact. You have asserted your judicatory power. This is the first case. It is good it were now settled. I hear his Highness plead nothing for the fellow. I think it were best first to whip him and then bring in a Bill to hang him. (fn. 9) I would have this business freely debated how to give my Lord Protector an account in this matter, wherein, no doubt but he will be satisfied with what is for the honour and good of the nation. That judgment upon Noble (fn. 10) was for breach of privilege, which was ever allowed the House of Commons.

Mr. West. This is a business of great concernment, and great time spent in it. I wish it had not. I must differ from that last honourable person to give leave to dispute the jurisdiction. I understand no such desire in the letter, to inquire into your jurisdiction. If his Highness were acquainted with the matter of fact, and appoint a Committee to this purpose, I hope it would give satisfaction to his Highness; but if you begin to dispute your jurisdiction, I know not when you will end. Besides greater affairs will be ousted.

Major-General Kelsey. That gentleman is mistaken. The letter does as well desire an account of the jurisdiction. I know not what to say to it, till you first put the question to speak against your judgment.

Mr. Fowell. I was for proceeding upon the legislative power, for I would have had him die for the crime. But it is not hard to find a precedent, several precedents, wherein not only the House of Lords, but the House of Commons have, by their judicatory power, liberty to pass greater sentences than this. The court of the upper bench might have done as much against him as a riotous disturber of the peace, &c. There was a case in the latter end of King James's time where one Floyd abused the Queen of Bohemia, and said she was a whore, &c. The House of Commons, of their own jurisdiction, proceeded to sentence him to ride backwards on a horse, with a paper, &c. The House of Lords questioned it, but it was to no purpose. (fn. 11) I would have a Committee to inquire of the precedents, and no doubt but it will give his Highness satisfaction.

Lord Chief-Justice. It is fit that leave should first be given to speak against this judgment, and, no doubt, when the business is fully debated, about the judicatory power, but a way may be found out to preserve a right understanding between his Highness and us, without the need of a tertius Arbiter. We assert our power, and he asserts his; no doubt but, in a fair way, by a meeting, this may be understood.

Mr. Robinson. This is the most unfortunate business that ever came into this House. I was against it, at first. I understand not what is meant, to give leave to speak to the jurisdiction. It is surely meant to give leave to speak against the jurisdiction of this House; for no man need have leave to speak to or for the jurisdiction. It is every man's duty to assert that.

When there happened any difference between the jurisdiction of the House of Lords and the Commons, they always appointed Committees of both Houses to meet and dispute their jurisdiction, and so convince one another. If this House have no judicatory power, I doubt we have no foundation. This is the essence, the life of our being.

I am sorry it happens upon this case. I was as much against this business as any man, but I am not satisfied to give way to speak against the judgment. If we should give leave, and upon the debate it be found that we have exceeded our jurisdiction, where are we then ? We must, every individual, go to my Lord Protector for a pardon. We are in a premunire, which may extend far.

I like not such a debate. It is not impertinent that you should resort to your precedents in this case. The Protector does declare in the Instrument, that he will maintain the laws and customs of this nation, and I take these records to be the laws and customs of this nation.

This demurrer to your jurisdiction puts all your business to a stop. It doth it virtually if not essentially. I must be forced in this to speak against my judgment, and contradict myself. I am against the thing, yet cannot admit any dispute upon the judgment, but that we ought to assert it. I would have a Committee appointed to seek out the precedents, and give his Highness satisfaction, and to adjourn the debate upon this business, till we can have further time to satisfy one another.

Mr. Goodwin. I doubt this will come under the question whether you be a Parliament or no. If you be a Parliament you have judicatory power to pass this sentence. I know no reason why you should appoint a Committee to examine your jurisdiction. You ought to assert it, and not to admit any debate against it. If you arraign your own judgment, what shall we be called ? 1 have heard of a Parliament called Insanum Parliamentum. (fn. 12) I wonder what his Highness will think of us, if we should not assert our jurisdiction. If we should rise without asserting our power, James Nayler may have his action against every individual member. Let us behave ourselves like wise men. We have passed a judgment, and owned the jurisdiction. Let us not part with it.

Mr. Rouse. We should return this short answer to his Highness's letter, " We had power so to do." I doubt not you will satisfy my Lord Protector with it. I think it. altogether improper to admit any debate upon your jurisdiction.

Sir William Strickland. If you arraign the jurisdiction of your Parliament, I shall desire to go home. I. cannot stay to serve my country with freedom of my conscience. What can the Cavaliers say, but to deny our jurisdiction, or the sectaries abroad. I hope we shall be able to dispute and assert our jurisdiction. This is the essence and being of a Parliament. If we have such a power, let us assert it. I desire a Committee may attend his Highness, to satisfy him of the reasons of our proceedings, and that we have done nothing but what former precedents do warrant.

Lord Whitlock. It is no new thing, in these extraordinary judgments, upon matter ex post facto, to examine even the self-actions of a Parliament; and if at any time they had occasion to take up the legislature, it was with great caution.

The case of Minns and Weston, in Richard II., where the House of Lords demurred to their own judgment; arid so Hacklyt's case and Thorpe's, for taking a bribe, adjudged to death: The Lords have said they would go no more in that way, and so the. Hpuse of Commons; but when the Parliament has given a judgment, and executed part of it, I hope no person that tenders the honour of a Parliament, will speak against it. I would have provision for the future made, to appoint how far jurisdiction in these cases shall extend.

I humbly move you would appoint a Committee to look into the precedents concerning this business, and find out a way to give his Highness satisfaction.

Lord Fleetwood. If I thought you were fit for a question, I should not trouble you. I think this business should now be ascertained, for the ease of the people; for your jurisdiction ought to take measure from what is for the good of the people. It is fit the people should know how far it should extend. I desire a Committee may be appointed to attend his Highness, to satisfy him of the grounds and reasons of this judgment, and to confer with him about a way for the future, that we might not walk without a rule.

Mr. Downing. My heart is very full in this business. I wish I could propound an expedient to heal this business. We need not dispute our jurisdiction ourselves. There are enough to dispute it. The Instrument of Government is but new, and our jurisdiction is but new too. It is dangerous either for him to question our power, or for us to question his, in matters that are for the public safety: we must both wink. If we should enter upon such a moot point, I dread the consequence. What bred all the former differences, but points of jurisdiction. I would have us to return a short answer to the letter, for I understand not that my Lord Protector does at all question, or desire an account of our jurisdiction. I shall presume that this is no inclination of his Highness to give the least encouragement to the crime. I know it is drawn from him by importunity, rather than any intention to dispute the authority of Parliament. As I said before, we must wink at one another. Should we look into every thing that is done in the council ?

Mr. Ashe, junior. Return this short answer to the letter, " that the Parliament have discharged their consciences, by what sentence they have passed upon James Nayler." It was usual, in former disputes of jurisdictions, to return this answer, " that they have done nothing but what was warrantable by former precedents. I agree it to be of a very dangerous consequence to debate it.

Lord President. If you refer this business to a Committee, what can they do but assert your jurisdiction, and what you have done? They can but say it in other words; but you must give a liberty to speak to the jurisdiction. Otherwise you will neither satisfy the ends of his Highness, nor of the people, to ascertain what may be done for the future in these cases. As to the matter of fact, I suppose the report is sufficient to satisfy his Highness. Your calling it blasphemy, is not the business the letter inquires into.

Major-General Jephson. Appoint a Committee to inquire of the grounds and reasons of your judgment, and to consult former precedents, and then, having something before you, you may debate it; and no doubt but a way will be found out to give his Highness an account according to the letter.

Mr. Briscoe. It is not for your honour to derogate from your jurisdiction. You have passed your judgment, and ought not to recede from it. Non datur vacuum. Surely your jurisdiction must be asserted; else you overthrow your being and essence, the very life of a Parliament. A Parliament cannot subsist without a judicatory power, as well as a legislative.

Mr. Recorder. This ie a precedent primæ impressionis. Let us consider upon what bottom we are. Though we have jurisdiction, I shall readily assert it as any man, yet I hope this has its non ultra. It is not infinite, for then all other powers are swallowed up in the legislative. I conceive, before you are fit to refer this to a Committee, you should give every member liberty to speak to the jurisdiction.

Mr. Bodurda. Suspend your debate upon this business, till weightier matters be over. Though it come by letter, yet other business may be of more concernment to his Highness; and, in the mean time, the punishment may be suspended, and, not executed till further order from the Parliament.

Mr. Speaker offered four or five questions, and desired to know which he might put. Going to put it for a Committee to examine the precedents, and prepare an answer.

Lord Lambert. This is a business of great consequence, and I doubt not but it will be so well managed, as that you shall be called no less than a Wise Parliament, as was hinted behind.

It is not without good reason that his Highness should be satisfied in the grounds. He knows not by what way you have proceeded, whether upon the judicatory or legislative. He is under an oath to protect the people, both in freedom of their consciences, and persons, and liberties. He is bound to inform himself in whatsoever he finds encroaching on any of them. As you are constituted, your power is joined with his in the jurisdiction. I would that you went hand in hand in your judgments.

I hope there will be no danger, if you give every man liberty to speak to the whole matter; to the jurisdiction, and to the thing itself. Not that I would recede from any thing we have done, nor that his Highness should retract any thing that he has offered; but that we might candidly understand one another after the business is fully debated.

Sir Gilbert Pickering. If his Highness had been acquainted with it before, it had been no worse. It was offered by a learned judge, (fn. 13) at the beginning of this debate. It is very fit this jurisdiction should be debated. It seems, though the judicatory power of Parliament cannot extend to life, yet, by this means, by a vote of to-day, you may pull out a man's eyes to-morrow; slit his nose, or cut off his hands, ears, or tongue. This is very hard, and ought to be considered.

I could wish you would go as slow a pace as may be, in this business, fully to debate the business, that you may give his Highness a clear account, who, being under the obligation of an oath, ought certainly to have satisfaction in this matter.

Lord Whitlock. If you refer it to a Committee to prepare reasons to answer the Lord Protector's letter, it tends too far to a concluding yourselves as to your jurisdiction. The question should rather be, that a day may be appointed to debate this business, without mentioning any thing of giving leave to speak to your jurisdiction. I conceive this encroaches less upon your power than the other question.

Mr. Bond proposed to rise, and take this business up to morrow morning.

Sir William Strickland. It is not for your honour to part without coming to some resolution in this business. It will cause people to talk strangely abroad.

Mr. Highland. I am sorry that you are at so great a loss in this business; whether you will assert the judgment and sentence which you have passed. If you assert not your own power, you will be matter of laughter, both to wise men and fools. I had rather that you would appoint a day to debate this business at large, and assert your judgment, so far as it may stand with law and satisfaction of your consciences.

Major-General Packer. If you appoint a day freely to debate this business, you do less subject your judgment than by referring it to a Committee. This is a putting a demur or stop upon yourselves, as if you were at a loss what answer to give.

Sir Charles Wolseley. This constitution is new, and this is the first case. It will not be enough to return this answer, that we have passed this judgment because we have passed it. The question is, whether this House has jurisdiction to pass such a sentence as this. This House cannot put any thing but an affirmative upon a law or a judgment. The negative lies in his Highness. I would have a day appointed fully to debate this business.

Mr. Bacon. I know no other grounds and reasons, that we can give his Highness, but those that we have already before us. If we go to seek new reasons, we shall but deceive his Highness and the people in what we have done. Let God and the world judge if you ought not to assert what you have done. Let what you will be done for the future, in such cases, but never dishonour yourselves. I hope it will never be done, to alter this sentence that you have passed.

Men's lives and liberties, estates, &c. are in the power of the Parliament. I would have us assert our own power."

Colonel Sydenham. Grant this position, that the Parliament has power of men's lives, liberties, &c., then I confess no man can speak against your judgments. Will you give this power to a Committee, which you will not take yourselves, to debate your judgment. Unless you give liberty to debate it freely here, I know not what can be done. I would have it freely considered here, what may be the rights of Englishmen, what due bounded liberty we shall have. It will concern us all to look about us. But if you intend such an answer, as in plain terms to assert your jurisdiction, and say you have done it because you have done it, this will neither stand with the honour nor wisdom of a Parliament.

Major-General Boteler. I am satisfied that this House had a judicatory power to pass this judgment. I wish this letter had come sooner, before any part of our punishment had been executed. I desire that we should appoint a time to assert our power, and that, in the meantime, the corporal punishment might go on.

Mr. Berkeley. You are not ripe for any question. I desire you would adjourn this debate, till to-morrow.

Mr. Robinson. Adjourn the debate, but suspend the corporal punishment, till you have debated the business.

Lord Lambert. I would not have you rise without a question, or adjourn this debate. I doubt this cannot so easily be laid aside as the petition was. (fn. 14) I wish it could be laid aside with satisfaction to all parties. I desire you would adjourn this debate till to-morrow.

Colonel Holland. Suspend the punishment for a week. In the interim, you may debate the matter. It is a business of great consequence.

Mr. Attorney-General. If you suspend the punishment, you grant the question; and, upon the letter, demur to your judgment, without further examination. For that reason, I would have the punishment go on. I doubt not but full satisfaction may be given of the grounds and reasons of your proceedings therein.

Upon a full debate of the matter, no question was put. Some only moved to adjourn the debate till to-morrow morning. We sat till two, and dined at court.

No Grand Committee to-day; nor any other but one for Bibles, (fn. 15) and Captain Ned Lister's Committee adjourned till Thursday fortnight.