The Diary of Thomas Burton
16 March 1658-9

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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: 16 March 1658-9', Diary of Thomas Burton esq, volume 4: March - April 1659 (1828), pp. 149-163. URL: http://www.british-history.ac.uk/report.aspx?compid=36931 Date accessed: 01 October 2014.


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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 have.

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 House.

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, his enlargement.

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 released.

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 under-officer.

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 again.

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 the rest.

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 Overton.

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 find it.

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 soldiers only.

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 persons.

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 in it.

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 your vote.

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 addition.

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 complicate them.

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 other.

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 before you.

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 touching Armstrong.

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.

Footnotes

1 "The members being met in the House this morning, and Mr. Chaloner Chute, the Speaker, being as yet unable to attend the service of the House; and Sir Lislebone Long, who was appointed to supply the Speaker's place, during his indisposition and absence, and went from the House sick on Monday last, continuing still very weak; the several members, sitting in their places, considered of the choice of another of their members to take the chair, and supply the Speaker's place during his indisposition and absence." Journals.
2 See supra, p. 92.
3 See supra, p. 120.
4 That the Lord Fairfax, Sir Anthony Ashley Cooper, Dr. Bathurst, and Mr. John Weaver, four of the members of this House, do, from this House, go unto and visit Mr. Speaker, Chaloner Chute; who, for the present, is, by reason of his sickness and indisposition of health, detained from attending the service of the Parliament." Journals.
5 Colonel Gibbons. See vol. iii. p. 49.
6 I have corrected and completed from the Journals, the report of this speech in the MS.
7 " The warrant was signed Oliver P., and directed to the Governor of the Isle of Jersey, or his deputy; and was in these words:— "These are to will and require you, forthwith to receive into your charge, the bodies of Robert Overton, Esquire, Major Norwood, Sir Thomas Armstrong, and John Weston, Esquire; and them detain, under secure imprisonment, in the Castle, at Jersey, until you shall receive further orders from us: and for so doing, this shall be your warrant. Given at Whitehall, the 8th of January, 1655." Journals.
8 "Robbers in the northern parts of Scotland." Dict. Anglo-Brit.
9 Major-general Sir Joseph Wagstaff, Chief Commander of the Western insurrection for Charles Stuart, in March 1654.5. See vol. iii. p. 531, note.
10 February, 1654–5. Major John Wildman," says Whitlock, was seized by a party of Major Butler's horse, and carried prisoner from Edninston near Faringdon, where he was taken, unto Chepstow Castle. They found him in his chamber, the door being open, leaning upon his elbow, and dictating to his man, who sat writing by him. They seized the papers. That which the man was writing was sent up to the Protector. It was thus entitled: "The Declaration of the Free and well-affected People of England, now in arms, against the Tyrant, Oliver Cromwell, Esquire." Memorials, (1732,) p. 618. "It was pretended," says Ludlow, "that he was taken, dictating to his servant a declaration for levying war against Oliver Cromwell. The citizens of London were made acquainted with it, and the Major brought to London by a guard of horse, and committed prisoner to the Tower." Memoirs, (1698,) ii. 533, 534.
11 I cannot find that this mode of trial was ever contemplated. The Earl was first impeached by the Commons, who afterwards passed and presented to the Lords, a Bill of Attainder. See Thomas May, on the Earl of Stratford. Vol. ii. p. 443. Cleveland, in an "Epitaph on the Earl," alluding to his versatile political life, and the dubious legality of his conviction, says:— "Here lies wise and valiant dust, Huddled up 'twixt fit and just; Strafford, who was hurried hence 'Twixt treason and convenience: The prop and ruin of the state, The people's violent love and hate." Poems, by J. C. (1654,) pp. 62, 63.
12 "To prevent Major-general Overton," says Ludlow, "from the benefit of A Habeas Corpus, for which Cromwell was informed he intended to move, though he had no reason to allege why it should be denied him, yet he sent him in custody to Jersey, with the hazard of his life, and to the great prejudice of his estate." Memoirs, (1698,) ii. 533.
13 Blank in the MS.
14 "A very sober discreet gentleman and a good lawyer." Whitlock, p. 676.
15 "From the Grand Committee of Grievances and Courts of Justice." Journals.
16 "Resolved, that this House doth agree with the Committee.
17 Ordered, that it be referred unto a Committee, to prepare, and bring in a Bill, upon the debate now had in the House, upon this Report from the Grand Committee. And the care hereof is referred to Mr. Serjeant Maynard. "The House, taking notice, upon reading of the warrant for the commitment of Mr. Overton, that there were two other persons therein named, the Deputy-Governor of Jersey, Captain Richard Yardley, was again called in, and Mr. Speaker, by the command of the House, asked him, if Sir Thomas Armstrong, Major Norwood, and Mr. John Weston, were now prisoners in his custody, and by what warrant: "To which the Deputy-Governor answered, 'That Sir Thomas Armstrong and Mr. Weston, were both now prisoners under his custody; that Major Norwood is at liberty, by virtue of an order of his Highness and his Council, brought to him in that behalf, at the same time when he received the order of this House for bringing over of Mr. Overton. "' That Mr. Norwood had his liberty upon security also of 500l. entered into by him to his Highness the Lord Protector, conditioned that he do not come into England, without leave in that behalf first obtained; and that he do not act any thing, for the future, against the Commonwealth abroad. "' And that he hath no other warrant or authority, besides the warrant delivered by him this day to the House, for the imprisonment or detainer of Sir Thomas Armstrong or Mr. Weston.' "Resolved, that the Governor of the Isle of Jersey, or his Deputy, do forthwith bring, or cause to be brought, Mr. John Weston, now a prisoner there, in safe custody, to the bar of this House." Journals.
18 "Ordered, that the debate concerning the sitting of the members returned for Scotland, and appointed, by former order, to have been proceeded in this day, bo adjourned till to-morrow morning, at eight of the clock; and that the same be then taken up, and that nothing else do then intervene." Ibid.