Wednesday, March 16, 1658–9.
Prayers by Mr. Cooper, but Mr. Speaker being very sick,
could not attend, so the mace came in alone. (fn. 1)
Sir Arthur Haslerigge. I move that Mr. Reynell be
called to the chair.
Mr. Reynell. I am both sorry and ashamed that you
should fix upon me. There is a worthy countryman of mine
much fitter, viz. Mr. Bampfield.
Mr. Mussenden. I move for Mr. Goodwill.
Sir Arthur Haslerigge. I do not repent me of my first
choice; but the first named does not always carry it. I therefore second the motion for Mr. Bampfield.
It was moved and observed that divers members were
absent to avoid the chair; therefore we must take such as we
Sir William Wheeler moved for Mr. Nathaniel Bacon who
was at the door; but Mr. Bampfield was called upon, and
Sir John Copplestone and Sir Arthur Haslerigge went to his
seat to lead him to the chair. He made his apology, but was
at last brought to the chair.
Ordered, that Mr. Bampfield do supply the place till Mr.
Speaker Chaloncr Chute recover his health, as see former
vote. (fn. 2)
Colonel Okey and Mr. Annesley moved that Colonel Overton (fn. 3) be called in, and it was ordered accordingly.
Mr. Speaker moved to know what he should say to him
when he came in.
Mr. Weaver. I move to send three or four of your members to your Speaker that is sick, to present the respects of
this House, and see how he does. It was very well taken,
and ordered accordingly. (fn. 4)
Before the Speaker was chosen, it was moved that the
mace might be sent into the Hall, to call the members; but
it was said by the old members, your mace cannot go out.
Mr. Neville. If you find that Major-general Overton's
business will ask debate, appoint a day for hearing it, and
in the mean time, deliver him over to your own Serjeant.
Sir Arthur Haslerigge. I move to know of the prisoner the
reason of his imprisonment.
Others said, you may receive the grounds of his imprisonment from his keeper; and the Governor of Jersey, (fn. 5) being
one of your members, may give an account of it to this
Major-general Overton and the Deputy Governor of
Jersey being brought to the bar by the mace,
Mr. Speaker asked the Deputy Governor, if that gentleman
was not his prisoner, and by whose warrant ?
He said, by a warrant from his late Highness. It was
called for, and brought up to the table. He said his name
was Captain Yardley.
Mr. Speaker asked Major-general Overton, if he had any
thing to say concerning his imprisonment.
Major-general Overton. (fn. 6) I acknowledge it a great mercy
of God, that after three years imprisonment, succeeding fourteen years in your service, I am brought to the bar of this
honourable House. As I have been in a suffering condition
for four years, so I desire to be passive still. If I may hear
the charge brought against me, I hope I shall give such answer to it, as shall satisfy and clear me from any former mistakes and misapprehensions concerning me. I hope I have
not done any thing contrary to what I at first engaged, and
fought for. I desire not to live or die but by the distributive
justice of this House.
You are my judges, and I think it a great mercy that it is
so; and, though I know nothing by myself, I hope I have
done nought deserving death or bonds. Yet I will not justify myself.
I had better have been torn in pieces by wild horses, than
have endured this great torment. That had been but for a
moment. I most humbly leave myself, my cause, and condition, to this House; and desire, one way or other, to receive
according as I have done.
Whereupon, by command of the House, the Deputy-governor and Major-general Overton withdrew, and the warrant
was read, which was only to receive into the Governor's custody, him and Sir Thomas Armstrong, and another. (fn. 7)
Mr. Bronghton. I never knew, nor saw the man. I have
heard much of his goodness. There appears no cause of his
imprisonment. He is a good man. Pray do not delay one
hour, but give him that which was his due many years since,
Mr. Bulkeley. Appoint a day to hear the whole business.
Mr. Neville. It appears by the date, that he has been
three years a prisoner, by that warrant. I hope you will not
stay a minute, when you see no ground of his imprisonment.
You are the fountain of justice in a distributive sense.
Mr. Trevor. There are many of these cases, and divers.
I would have no reflection upon times past. Others have
been imprisoned, even members of this House, viz. Major-general Brown. There was corpus, but not causa. I would
have all the matter before you, the original warrant, and appoint a day for hearing it.
Sir Arthur Haslerigge. I make a difference between times
of war and seven years of peace. Such a warrant was never,
since William came in. This was never done alone by the
King. The King can do no wrong. I wonder we should
stick a minute on this. Ah, Sir! there was never such a
warrant came before the Long Parliament.
Experience tells us it is time to bound the single person. It
concerns you not to hunt after matter. The warrant is in the
single person. If he had been alive, I should have said
something; but he is dead. I shall say no more. If we
perish, let us perish by laws, and not by arbitrary power.
Declare against the authority of a single person. If the
Council had done it, we should know what to have said to it.
He might have had a remedy: now he has none. You must
release him, as he is an Englishman.
The warrant is illegal, because from a single person alone,
and because there is no cause expressed. I hope you will do
him right, and the people right, in releasing him.
Mr. St. Nicholas. I hope you will not add affliction to affliction. To be imprisoned by you, will be worse than the
former. The original warrant is in Scotland, and must he stay
till that come ? I hope you will give him a speedy release.
Sir Henry Vane. You ought not to be accessory, to continue him in prison one moment. You find no cause in
the warrant. There may be other causes, but they are
not before you. The case is just, that you should give
him reparation, and not content yourself barely with releasing him. No person ought to keep a free man of England upon such a warrant, no cause being expressed. The
case differs from that of a military person; for inter arma
silent leges. Release him, and refer his case to the Committee of Grievances, and command him to attend; and
no doubt but he will attend.
Major Knight. I moved that Lord Lambert, and Judge
Advocate Whalley, give an account of his imprisonment.
Haply they know more.
Colonel White. That business is not before you now. I
would have him released forthwith.
Mr.Starkey. I take the law to be clear, that the King
cannot commit in his single person, and that the cause ought
to be expressed in the warrant. Are not the people fit to
have possession of their liberties, that we may make continual
claim to them ?
I move that you declare the warrant illegal and unjust,
and that he ought to be released.
Mr. Bristow and Sir William Wyndham. Others, in
the same warrant, and elsewhere in the nation, upon the like
warrant were imprisoned. You should also consider them.
Captain Baynes. You have now a military power mixed
with your civil. The military act it all now: I hope you
will take course about this. I would have him released, and
that will be a means to prevent the Chief Magistrate from
acting such things; and also all keepers from receiving
prisoners without the cause.
Mr. Weaver. I move that the question be put only as
to Major-general Overton. Armstrong is a dangerous person. His business is before the Committee of Grievances.
There may be other grounds for committing the rest Let
it not be general.
Mr. Annesley seconded.
Colonel Morley. I move to do equal justice.
Mr. Boscawen. Give the devil his due. I would have
it done so. as to relieve such as are oppressed, and to
deter such proceedings for the future.
Sir Henry Vane. To put this business off your hands,
declare the warrant to be unjust and illegal, and that he be
Mr. Trevor. If the warrant be illegal as to one, it is
so as to another.
Mr. Neville. It appears not before you, that there are
no other grounds for their imprisonment.
Lord Falkland. There is more reason to declare the
warrant illegal as to other gentlemen; for Major-general
Overton might have been committed by the general as an
Dr. Loftus. Declare that warrant illegal, as to Majorgeneral Overton only.
Mr. Godfrey. I think the matter is not before you, unless
you had the original cause of his imprisonment. The same
ground is for all as for Major-general Overton. Therefore,
I would have the vote pass for all in general. There is but
one base for all.
Sir Arthur Haslerigge. I would not have you, hand over
head, to deliver Irish rebels. It is not for your honour,
which is dearer to me than my own life, if I know my
own heart. This business of Major-general Overton's is only
before you. Nought else before you requires your justice
but his business.
Colonel Terrill. When this business is done, I have Sir
Thomas Armstrong's report to offer to you; but I admit that
the question ought to pass singly.
Sir Walter Earle. I move that Judge Advocate Whalley
may declare the original ground of his imprisonment.
Judge Advocate Whalley. I perceive you are going to put
a question which may be of. a very dangerous consequence.
We are now in peace. I pray God, we may never see wars
Major-general Overton was not committed upon a civil
but a military account. You will lay all your officers in the
army liable to actions. Plots were daily discovered. I saw
a letter from the King to a great man of Scotland, to be
ready to rise, &c. We committed him, but durst not set
forth the grounds, but would make further use of them.
We must make use of persons in the very bosom of our
enemies to give us intelligence. If we once discover the
grounds, we destroy our intelligence.
I have often taken moss-troopers, (fn. 8) that had murthered your
men. We durst not say we took them as murtherers, lest
they should discover it to their fellows, before we had caught
Take heed how you discourage, your army. If ever you
have wars again, it may be of dangerous consequence.
Colonel West. Put the question, as you have penned it.
There is nought said of matter-of-fact against Major-general
Mr. Speaker reported the same.
Sir Arthur Haslerigge liked it well.
Judge Advocate Whalley. Seeing the question is to be put,
I think myself bound to say further, as to matter of fact.
His late Highness sent me into Scotland. I found divers
officers in prison, amongst the rest Major-general Overton.
It was considered at the council of war. There was a letter
showing dissatisfaction to the government, desiring all the
officers to meet together. It was at an unseasonable time.
We were in no good frame then. It was when Wagstaff (fn. 9) and
Wildman's (fn. 10) businesses were in hand. I have brought the letter
in my pocket. We cashiered several of them, and sent some
prisoners, as Major Brampston, for fear they should go
abroad to infect the army. Upon examination of this matter,
it was proved that Major-general Overton—I must do him
right as well as wrong—(altum risum.) He saw the letter,
and approved of it as a good letter, and a godly letter. Major-general Monk saw the letter.
I was commanded to peruse his papers. I found one letter
sealed with silk and silver ribbon. It had no hand to it. The
contents were that there was an intent to murder the Protector and Lord Lambert, and six others. I was sorry to
Lord Lambert smiled.
Sir Arthur Haslerigge. I, and a great many more of us,
were discontented at the dissolution of the Long Parliament.
I was sent for by a pursuivant, but had the good luck not to
be imprisoned. Major-general Overton was not then an
army man, but as one of the people of England. I have observed that he Was committed by the name of Robert Overton, Esq. I would have your question run so.
Dr. Clarges. The report in Scotland was very high against
Major-general Overton, and that it was his Highness's indulgency not to try him by a court of war.
Mr. Chaloner. In time of peace, we ought not to talk of
martial law. It was resolved in Lord Strafford's case, that
he could not be tried by martial law. (fn. 11) Martial law was never
used but in time of war, of open war, in the army, and upon
Colonel Matthews and Mr. Jenkinson. Your vote should
hold forth the cause of your releasing him, viz. because the
warrant was by the single person alone, and no cause shown.
Mr. Secretary. I move that, before your judgment, you
would hear the whole matter.
The beginning of this was in time of war, and in a dangerous juncture of affairs. There were endeavours to engage a
part of the army against the Government. Military men, in
military times, do not so much consider form as matter. If
the whole case were before you, I would have it referred to a
Committee to examine the whole business. Or, if you think
not fit to continue him in prison, let him be bailed.
Colonel Okey. There was no plot, not for four months before this gentleman was committed. The plot which they
talked on, was of several officers dissatisfied with the breaking
the Long Parliament. They chose rather to lay down their
commissions than to act up to his designs; and though there
came several trepanners from Whitehall, it pleased God to
keep us upright.
Lieutenant-general Ludlow. If Mr. Secretary had been
here at the beginning of the debate, he would have saved this
motion; for it was moved that his whole case might be referred to the Committee of Grievances, as well as for his reparation.
Mr. Reynolds. In your vote, you must express the causes
of your releasing him, and let it run not jointly, but severally,
viz. that it was illegal as well for that it was done by his
Highness singly, and no cause of commitment.
Mr. Sedgwick. It is below the honour of a Parliament to
declare their reasons. It is enough for you to declare it illegal.
Mr. Sadler. I move to express four reasons. 1. That he
is a commoner of England. 2. That it was done by the Chief
Magistrate alone. 3. That the warrant expressed no cause.
4. That he was detained four years in prison without trial,
and that it was without the reach of the law. (fn. 12)
Mr. Shaftoe. I would not have the mistake pass in this
House that no Habeas Corpus lies to Jersey. The case of
Berwick, 42 Eliz. and several other cases, show that it reaches
any part of the dominions of the king.
I am against expressing the reasons of your vote. Every
man, military and other, unless he be a Lord or a Peer, is a
commoner of England.
Mr. Trevor. I move that the vote may extend to all the
Mr. Bodurda. I second it, and to add the cause of your
releasing, him. The warrant is upon the single personal authority of the Chief Magistrate, and has no cause expressed
Mr. Speaker offered the question with the causes.
Mr. Godfrey. I think it not below your honour at this
time, to express them. I would have the rest of the persons
added, and say it is also illegal as to them. The base of it
runs so far. Your vote will necessarily draw you to it.
You are the great council of the kingdom, and ought to
be impartial; you may sufficiently take notice of them in
Sir Anthony Ashley Cooper. I cannot agree with the addition. I would not only have the warrant voted illegal, but
the causes expressed, that it may appear upon your books,
which will not appear by the warrant. I would have it further added, as another cause, that he was sent where a Habeas Corpus will not reach.
I am clearly of opinion, and all the Long Robe at the
Committee of Grievances were of that opinion, that a Habeas
Corpus lies not to Jersey. I would have a precedent. The
case of Berwick differs much from it. They are part of
England, and send burgesses hither.
Major Ashton. I move that you only relate to the matter
before you. Let your premises be reconciled to your conclusion. Ex. veris premissis, sequitur vera conclusio.
I move to set Major-general Overton at liberty; yet for
the honour of him that is gone, that fought you into your liberties, that you would not in terminis reflect upon him, as by
the words, illegal and unjust.
Sir Walter Earle. It is no reflection, to say that which is
illegal, is illegal.
Mr. Neville. Leave out the words the Isle of Jersey, or
else let something in your vote express, that to send him
thither is illegal.
Sir Arthur Haslerigge. One Glanvill, that, sat in your
chair, desired to know which way the Spanish fleet went.
They told him he should know it, so they sent him secretary.
This is a great liberty for any commoner to be sent beyond
sea without his consent. I would have it provided against
in this vote. Add it to the question, that he was sent to the
Isle of Jersey.
Mr. Godfrey. I am against the last addition; for that
it will imply he might have been sent to any other prison.
It will lessen the former part of the question.
Sir John Lenthall. I move that it be expressed, as againstthe rights and liberties of the people.
The question was put in the affirmative.
Colonel Fielder. I move that the rest of the persons
mentioned in the warrant be comprehended in the question.
Mr. Bernard. You cannot pass the question till you put
the addition; it being all upon one ground.
Sir Henry Vane. This is but to cloak the question.
I would have the other persons sent for afterwards.
Sir Walter Earle and Mr. Baldwin moved against the last
Mr. Ross. I am glad to Bee such care taken for the release
of the prisoners. I would have it extend to all, that it may
be a jubilee to all.
Mr. — (fn. 13) (who called the Chair, Mr. Bampfield, as Sir
Anthony Irby had done before him,) I move that all other
persons in the warrant be included in your vote, and that the
deputy be called in, to know if he have any other reason for
detaining the rest.
Colonel Allured. I move to make a difference between
those that have faithfully served you, and your enemies.
Mr. Scot. I am loth to put Overton and Armstrong
together. I would not have them named in one day. The
cases differ. They are of different principles. You cannot
Lord Falkland. I would have no difference put between
the free-born people of England; but do justice to all. But,
if you please, put the question singly, and then put it for the
Mr. Higgons. An ill man may be illegally imprisoned.
Mr. Burton. I thought it had not been the temper of
this House to put an honest man, and a knave, an Irish rebel
together. That raises me up indeed.
News came in just now, by Colonel Matthews, that Sir
Lislebone Long (fn. 14) is dead: at twelve o'clock.
Dr. Loftus. Ubi lex non distinguit, you will not distinguish. Yet, before you release any person, you will have
him here at the bar.
Sir Richard Temple and Colonel Thompson, moved against
the addition. The case of the other gentlemen is not
Sir Anthony Irby. Never was such a thing brought into
Parliament, to bring that before you which never was depending. It is clearly out of order to perplex the question.
Mr. Raleigh. Never was the like done before. In all the
courts of Westminster-Hall, and in all cases, the persons
were still brought, cum causa.
The question being put, "and others" being added, it
passed in the negative.
It happened that, upon first putting the question, there
was never an affirmative, and so it was the sense of the
House that Mr. Speaker ought not to put it again; but two
or three stood up and said, they gave their yeas, and though
they were not heard to do it articulately, it was admitted
that, by order of the House, the question ought to be put
again, and it was put accordingly.
Resolved, that the commitment and detainer of Robert
Overton, Esquire, as well because it is by a warrant under
the hand of the Chief Magistrate alone, as because it is by a
warrant, wherein there is no cause expressed, is illegal and
unjust, and that he be discharged of his imprisonment.
Resolved, that Robert Overton, Esquire, be discharged of
his imprisonment, without paying any fees.
It was moved, that to save time, the Governor might, at
his coming in, be asked if there was any other cause of
the imprisonment of the other persons, but it was waved.
Sir Henry Vane moved, that the report be received
Major-general Overton and the Deputy Governor of the Isle
of Jersey were, by the command of the House, called in again;
and the Serjeant standing by them at the bar, with the mace,
Mr. Speaker, by the command of the House, informed
them, that the House had considered of Major-general Overton's imprisonment, and had ordered that he should be discharged without paying any fees; and that the DeputyGovernor was to take notice thereof.
The Deputy-Governor desired his warrant again.
Colonel Terrill offered his Report, (fn. 15) but it was justled out
by another debate; even by those that before seemed most
zealous for it, viz. Colonel Fielder.
Mr. Neville suspects, now that he that was so zealous before,
moves to wave it, that it was only to clog the other question.
Colonel Terrill made the report, which is very short, and
offered it as the opinion of the Committee, that the Governor
of the Isle of Jersey, or his Deputy, do bring Sir Thomas
Armstrong, prisoner there, in safe custody to the Committee,
with the cause of his imprisonment.
He further reported, that the Committee found, that
divers commoners of England had, by illegal warrants, been
committed to prison into the islands of Jersey, and other the
islands belonging to this Commonwealth, out of the reach of
an Habeas Corpus. And that it Was their opinion, that the
House should be moved to take it into their consideration,
how this mischief may be redressed; and that an act might be
prepared for that purpose.
I came away at almost one, being to dine at a club, with
L. How and northern members. Query, what was done. (fn. 17)
It was moved to sit again afterwards, on the business
of the Scotch members, but it would not be admitted. (fn. 18)
The Grand Committee of Grievances sat. Query, what
done there. Vid. Diurnal.