The Diary of Thomas Burton
29 May 1657

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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: 29 May 1657', Diary of Thomas Burton esq, volume 2: April 1657 - February 1658 (1828), pp. 148-159. URL: http://www.british-history.ac.uk/report.aspx?compid=36843 Date accessed: 24 November 2014.


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Friday, May 29, 1657.

Colonel Jones. I move that the Bill for the postage may be read; which will be both a business of monies and safety to you.

Mr. Bedford. The Bill for Recusants (fn. 1) was appointed to be reported this day, and nothing to intervene.

Colonel Jones said he was satisfied, for he did not know of the debate adjourned.

The amendments were read and passed, till it came to the oath. (fn. 2)

Mr. Bampfield stood up and excepted against it, and compared it to the Spanish Inquisition, and the oaths ex officio. He moved rather that they might be indicted of popish recusancy, which might be easily made out, by their maintaining these principles.

Mr. Bampfield observed the Speaker speaking to the clerk, and moved that it was usual with him to do so while men were speaking, but it was against the orders of the House.

Mr. Speaker laboured to excuse himself, but could not come off very well. He said, " I only spoke to be informed about the order of your proceedings."

Mr. Bedford. This was debated in a full and great Committee for two hours, and they could find no other way of conviction.

Lord Strickland moved against the oath, and said indeed it was more than the Inquisition, which puts a man upon his own purgation, and if men will but abjure they will escape the Inquisition; and Mr. Mole died under the Inquisition for not taking an oath. These are nice and controverted points, which may stagger a protestant.

Again, there is no warrant for this by the laws. I know no way of conviction but by juries, or two witnesses; they may have dispensations for it, and then your design is out of doors. I would have them convicted by having ministers to converse with them, and so discover their idolatry, the onus probandi lies upon the accuser; the party stands rectus in curia till then.

Captain Baynes. It is against the laws of Englishmen to impose this oath. I move rather to convict them upon the Bill for the sabbath, (fn. 3) which requires men to come to the public place of worship. I would have the Bill recommitted. Again, we ought to look at the privilege of the English abroad, (fn. 4) to do as we would be done by.

Major-General Whalley. I move that the oath may stand. It is the best way, and I wonder it should offend any man that is enlightened. Our principles and theirs differ; though on Englishmen abroad an oath may be imposed. I think none ought to refuse his faith when he shall be put to the test.

The Master of the Rolls. It is not regular to speak to the oath now, in regard this was part of the Bill. I would have that cleared, to the end we may understand it, what we have to speak to.

Mr. Godfrey. This amendment lies before you as an amendment. A vote has passed upon one part of the amendment, and upon the rest no vote at all.

Mr. Speaker read the clerk's entry upon the paper, which was intituled "Amendments to the Bill," &c.

Mr. Bedford acknowledged they were but amendments: but there were but two or three words different from the oath in the Bill.

Colonel Philip Jones: I never had love to oaths of this kind; but I doubt that about coming to church will be fruitless, and they are a spreading generation.

Mr. Bond. I move that your question may be for an oath; but not with those clauses of transubstantiation and purgatory, and the like. It is a dangerous precedent. We do not know what times may come. Those things may be asserted for truths, and we, under some penalty, may be compelled to swear to them.

The oath was read upon this motion.

Colonel Briscoe. Divers worthy gentlemen have fully spoken against this oath. I shall give you my reasons why there is no necessity for this oath.

In the county for which I serve, (fn. 5) we have as great a number of them as any where. Most of them that have any estates are under sequestration. Other ways may be found out besides this. Though the face of public worship of late be discouraged, (fn. 6) yet we have such places to try them.

1. It is against that great maxim of law, that no man is bound to betray himself; the greatest traitors and felons, that are actually and known enemies. The equity extending to them, surely it ought to be extendable to such as are but suspected from their principles. Haply some may desire to live peaceably.

2. This is a very discovery of a man's thoughts and his conscience before God.

Consider how the times when this was imposed (as in the Long Parliament (fn. 7) ) differed from this. Then was a time of war. Courts of Justice were shut up, so that there was no way of conviction. The necessity ceasing, the thing ceaseth.

3. You have condemned oaths of this nature. The oath ex officio had your sense and severity, and to revise that, is not reasonable. The ecclesiastical courts were put down upon this.

4. You hold forth a liberty of conscience, and such, as his Highness observes, was never since Christ's time. Consider what an indulgence and favour you hold to one sort of unsound persons, and so severe against others; though the one may be as unsound as the other. It is neither of ingenuity nor integrity.

5. An argument was used by an honourable from the bar, about the oath upon the Cavaliers, in the debate about decimations. It will only fall upon the most conscientious. It will be but to others drinking another glass of sack. I told you of one of this kind in my own experience. You must needs draw yourself into a guilt by imposing such an oath upon persons that are devoid of conscience, and haply lose your ends as to the revenue. I would have a clause added, that the ministers and churches may be enjoined to present them. They are well enough known over all England. In our parts they are. I would have articles against them, and let them clear themselves, by proving that they come to some public place of worship. I would have the Bill committed upon this account.

Major-General Boteler. That way of presentment will but amount to a suspicion; which is no conviction without further proof. I grant, to an Englishman, an oath to accuse a man's self ought not to be put, but I look upon them as persons otherwise than Englishmen. I look upon them as enemies; and, upon that account, would not have them have the liberties of the laws. Therefore, I would have the question put for the oath.

Sir John Thorowgood. I move to acquaint you with a passage that happened at Hicks's-hall about a year since. Six of them were taken together by the Lieutenant of the Tower. Three or four of them were brought to be tried. One of them confessed at the examination; and though he was an Irish priest, and all those things were pressed upon the jury, they would not find it. (fn. 8) There can be no other way but by this oath. I know they increase daily; and are still contriving mischief against you. I would have them be conversed with by ministers, to convince them if it be possible.

Mr. Butler. I know where they have increased one hundred in a year, in one or two parishes. They keep up another jurisdiction (fn. 9) against you.

This is no imposing upon their consciences. If God should turn the tables, and men be put upon a test of their faith, I think no conscientious person would be against it. I think I may say that I have been one of those that have con victed some hundreds. They will not renounce the Pope, that is your design. I have not felt the Spanish Inquisition; but I have been under the prelatical oath ex officio, but this is different.

Will you suffer the limbs of Antichrist to grow rich within your bowels? Is this the profession to improve all your interest for God, the Protestant against the professed enemies?

Mr. Godfrey. It is true we ought to improve all our interest for God; but it must be according to conscience. We must not lie for God. That gentleman offered several texts of Scripture. I should have been glad to have heard one. I know one text against it. As it was said to Pilate, " ask them which heard me:" (fn. 10) he would not accuse himself. This is not only to question what a man teaches, but what he thinks, what he believes.

Admit them to be never so bad; to be the worst of men: to give the Devil his due, this is no argument to you to do injustice. I think they are the worst of men; and imitating their practices, the worst of their practices, is to imitate the worst of men in the worst of practices. I know no difference between it and the Inquisition; only the one racks and tortures the purse, the other the person and the body.

You have said much of liberty of conscience. I know it is a precious privilege, and God's throne, while they keep their faith to themselves. This clause is inconsistent with the principle so much spoken of, though misunderstood. It differs nothing from the oath ex officio, which was reckoned the highest tyranny upon conscience that ever was. (fn. 11) It agrees in the species, differs in the particulars; they went about, you go downright.

It is no rule to me, malorum injunctum est eligendum. This to me is malum in se, to search into men's consciences. You ought not to punish them unless you can justly punish them, fiat justitia, &c. I know no such strait as is said; that you have no other way.

As in the case of treason, which is as secret as any, you put not men to accuse themselves. If it hold in this, it may fall in as an argument in case of treason, felony, and all things else that you cannot prove.

It is a rule to proceed secundum allegata et probata. To swear a man's own innocency is neither probatum nor allegatum.

They may avoid the matter of the oath by their distinctions, as instanced in several parts; as that about images and ecclesiastical censures. There are so many evasions and distinctions, that you will have no security by what you propound. Again, that principle of fides cum hereticis will break out upon you, whenever they see an occasion to advance the Catholic cause. I move that it may be recommitted, and some other way found out.

Mr. Speaker. I have a letter to offer you from his Highness. The report is long, and I desire your directions.

The question was called for, and the oath read.

Colonel Holland and Mr. Bond. Some gentlemen are for the first part of it, as to abjuring the Pope, that are not for other parts of it. Some parts of it may be returned upon us; new doctrines being daily afoot, and such changes, it should not be left as an ill precedent.

Major-General Boteler. I would not have us, for fear of ill consciences, to forbear to execute a good conscience. Now you have put the question once entire, you cannot put it in parts. The question being put,

Mr. Speaker declared for the Yeas.

Mr. Highland for the Noes.

The Yeas declared to go out, because it is the bringing in of a new law.

Colonel Sydenham and Major Wagstaffe moved, that those that are withdrawn might give their judgments one way or another, viz. Lord Whitlock, Mr. Secretary, Lord Lambert, and others.

Colonel Sydenham pressed that it was an ill precedent.

Noes 53. Mr. Godfrey and Mr. Bampfield, Tellers.

Yeas 51. Mr. Pedley and Mr. Bedford, Tellers.

So it passed in the negative; and the Bill with the amendments, was recommitted.

The letter from his Highness was read, which was to declare his intentions to adjourn or prorogue the Parliament from the 20th of June to the Michaelmas term; and desired us to apply ourselves to perfect the business of the Petition and Advice.

Major-General Whalley moved to have it referred to a Committee, to consider what Bills are fit to he perfected in this time.

The Master of the Rolls. We were beholden to his Highness for this recess. I would have you first to apply yourselves to the business of the 600,000l. for monies for three years.

Captain Hatsel. I move for an order to meet expressly at eight o'clock. Much business may be done to-morrow.

Colonel Holland. There are little fruits of such meeting at eight o'clock. I would have you first go on with the business of monies, and nothing to intervene.

Sir William Strickland. Next the business of monies, without which there can be no safety, it were brutish to think that without arms we can be safe, and without monies, no arms. I move that the business of Religion be considered with a qaœrite primum. (fn. 12)

Mr. Fowell moved, that the Bills for monies might be first taken up, and that the petitions which obstruct the Bill for buildings, be put off.

Mr. Downing and Mr. Fowell moved, that the Bill for the postage might be read; which was done accordingly.

Lord Deputy and Major Morgan. Before you lay Assessments upon Ireland, you should dispatch the Bills for the settlement of Ireland.

The Bill for the postage (fn. 13) being read and opened,

Sir Thomas Wroth. This Bill has bred much talk abroad since yesterday. The design is very good and specious; but I would have some few words added for general satisfaction: to know how the monies shall be disposed of, and that our letters may pass free as well in this Parliament as formerly.

Lord Strickland. When the report was made, it was told you that that will raise you a revenue. It is 10,000 per annum aid now, which before laid loose. It matters not what the reports be abroad, nothing can more assist trade than this intercourse. I would have the blank filled up. Our letters pass better, than in any part whatsoever. In France and Holland, and other parts, letters are often laid open to public view as occasion is.

Sir Christopher Pack. The design of the Bill is very good for trading and commerce; and it matters not what is said abroad of it. As to that of letters passing free for members, it is not worth putting in an Act. That may be obtained, any Parliament, from time to time.

Colonel Sydenham. I move that it may be committed to be made but probationary; it being never a law before: that care may be taken of property, that men's horses may not be taken to ride post; and that the blanks may be filled up.

Mr. Lloyd moved that it might be cared for about letters from foreign parts, according as in other parts.

Captain Hatsel moved, that the deputies might be enjoined at any time to carry the merchants' packets if they desire it and will be at the charge; sometimes, when their ships sail it may save them giving 70l. per cent., if that express be sent by the post.

It was referred to a Committee, to meet in the Star Chamber on Monday afternoon, at two o'clock.

Mr. Fowell moved that Lord Whitlock and Colonel Sydenham might be added to the Committee for the bills of buildings.

Mr. Lloyd. The adventurers for Ireland should have the common justice of the House, and the poor be regarded as well as the rich. I move that that Bill may be read.

Major Morgan reported amendments to a Bill for the officers in Ireland, which was twice read.

Mr. Lloyd. I move to postpone this; for it takes away what the adventurers should be satisfied with.

Colonel Cooper. There is not a farthing prejudice to the adventurers.

Sir Christopher Pack. I move, that for the honour of your proceedings, you would read both Bills together.

Major-General Kelsey. This is improper, to move for another Bill while this report is a-foot.

Major Morgan. This is no intrenchment upon the adventurers. I could tell something of that gentleman's allotment, how unreasonable it is, though it be twice read. The Bill he speaks of is, that every acre under twelve pence, shall be thrown in for waste. By that means you will fall short indeed. It was told you by a person that knows your orders well, that while the debate is upon the amendments you cannot debate upon the Bill.

There was likely to have been reflections and responses between Major Morgan and Mr. Lloyd, but it was taken up by Major-Generals Jephson and Kelsey. And the amendments all passed in gross.

The Lord Deputy moved that a rider might be added to this bill, for confirming his Highness's grant of 100l. per. annum, in Ireland, for ninety-nine years, upon the wife and children of an eminent minister, one Mr. Moorcock.

Mr. Speaker and others. When the Bill is ingrossed, it is proper for any member to offer that rider.

Mr. Speaker. I have a letter to communicate to you from his Highness, touching the Irish officers. This was read, with a long petition annexed, and referred to the Irish Committee.

Colonel Philip Jones. Though the Bill for the Adventurers in Ireland was moved out of season; yet I desire that they might not be discouraged. I therefore move it may be read on Thursday.

The Lord Deputy seconded it.

Sir Christopher Pack moved a shorter day, viz. Monday, which was done.

Mr. Speaker. I move, that you would declare your sense about Lord Craven's business which you have appointed tomorrow. It being chargeable for Council to attend, and if you put it off, it were good it were known.

Mr. Highland moved to put it off, and that Dr. Walker and other civilians might attend about the Commonwealth.

Captain Hatsel. To-morrow your honour will be arraigned, the honour of a Parliament, and you had need to have council that understand the case, viz. Dr. Walker, who is of council for his Highness, in the Admiralty.

Sir Christopher Pack and Colonel Sankey. The purchasers are prepared against to-morrow, and it will be for your honour not to keep men lingering in this disease; but put it off your hands.

Major Audley and Major Wagstaffe moved to prorogue this till the Parliament meet again; for there can be no determination of it in this time.

Colonel Jones seconded the motion.

Mr. Fowell. I am confident you can do nothing before Michaelmas term; though I should be as glad as any man to vindicate the honour of the House in this; but in regard you have so little time, I move that you would appoint a positive day, the next sessions, for hearing this and Leviston's case.

Captain Lilburne and Alderman Foot moved to appoint a certain day next sessions for hearing this business.

And it was resolved that the first Saturday after next meeting in Michaelmas term, maybe the day to hear thiscause, and that day se'nnight to hear Leviston's and Crook's case.

Captain Lilburn moved that Mr. Burton and Mr. Rushworth may be added to Durham Committee.

Sir Richard Onslow reported from the Committee appointed to attend his Highness for his consent to the day of thanksgiving, that his Highness doth consent to all that was ordered by the House.

Mr. Manton being out of town, Mr. Caryl was ordered to preach.

The House adjourned at one o'clock.

Footnotes

1 "Intituled an Act for discovering, convicting, and repressing of Popish Recusants." Journals.
2 Against Transubstantiation, &c. See Mr. Bond, infra, p. 150.
3 This Bill was now in progress, and passed June 20.
4 In Catholic countries, where they might expect retaliation.
5 Cumberland.
6 This speaker probably refers to the tolerating spirit of the Protector's Government, (a redeeming passage in the history of his usurpation) and the consequent connivance respecting separate assemblies.
7 Who, while contending for liberty against Charles, would hard rendered their popish fellow-citizens the most abject slaves. In their "humble Petition and Advice," presented to the King, (1642,) they require, in their 7th proposition, " That Papists shall have no vote in Councils, and that their children shall be brought up in the protestant religion," a most cruel interference with parental authority and affection, which I quote from Ludlow's Memoirs, (i. 34) where, I regret to add, it appears without even the least token of disapprobation.
8 These jurymen appear to have entertained the just opinion asserted a few years before, by " an Independent Minister, within a few miles of London," who " had said, that papists should be suffered; and for his part, if he knew papists who were at their devotions of beads, images, &c. he would not have them hindered or disturbed." Gangrœna, (1646) Part i. p. 46.
9 Meaning, I apprehend, the authority of the Pope.
10 John xviii. 21.
11 One of the great blemishes in the overvaunted reign of Elizabeth. This oath ex officio mero; was first imposed in 1584. The Queen empowered her Commissioners "to examine such persons as they suspected, upon their corporal oaths, for the better trial and opening of the truth, and to punish those that refused the oath by fine or imprisonment, according to their discretion."—See Neal's " History of the Puritans." (1822) i. 333.
12 An allusion to Mat. vi. 33, and Luke xii. 31.
13 "For the settling of the postage of England, Scotland, and Ireland."—Journals.