Friday, December 26,1656.
Judge Lawrence came this day in, to serve for the Isle of
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
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
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
It was the first day he came into the House, but, I
doubt, at the rate of such distractions, it may be thought
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
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
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
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
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
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
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
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
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
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
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