The Diary of Thomas Burton: 3 December 1656

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Diary of Thomas Burton Esq: Volume 1, July 1653 - April 1657. Originally published by H Colburn, London, 1828.

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Wednesday, December 3, 1656.

A private bill for the Patron and Vicar of Plymouth, to let leases for three lives, or ninety-nine years, at a rack-rent, was read the second time.

Mr. Pedley and Mr. Robinson. (fn. 1) For form's sake, it should be committed. By the common law, the Patron, Vicar, and Ordinary, joining, may let leases ut supra; but per statute, 13 Eliz., they are restrained. It alters the law, and so by the orders it ought to be committed, to hear what any body can say to it.

Major-General Kekey, Mr. Fowell, and Mr. Bond. There is no need to commit it, for none can except against it, seeing there is no power given by the bill to take fines, &c. but to let at a rack-rent, which (if that were observed in all corporations) it were no injury to grant such a liberty to all corporations in general.

Resolved, that the bill be ingrossed; but, by direction of the Speaker, [Sir Thomas Widdrington] the question was put for commitment, that being the proper question.

Mr. Speaker. Here are two private bills, concerning two of the members, which I suppose you will admit to be read as the first business.

An Act to enable Richard Carter, Esq. son and heir of John Carter, Esq. deceased, to sell lands for payment of the debts of the said John Carter the father, and Richard his son. Read the first time. His father's debts, three thousand pounds, wherein the son stands engaged per bond.

Colonel Rouse. He is sued. Judgments, executions, and ousters, against him; and in daily danger to be laid in prison. His rents of assize are one hundred pounds per annum; demesnes, four hundred pounds per annum. He desires this may be settled upon him, in fee for payment of debts, ut supra.

Resolved, that this bill be read the second time on Saturday.

Mr. Robinson.—I desire that longer time may be given for the second reading, for it may concern other persons.

The Master of the Rolls. [William Lenthall] Judge-Advocate Whalley's case is very hard. I desire his bill may be read.

Mr. — (fn. 2) Scotch. It being appointed to be read another day, and it being now adjourned sine die, it ought not to be read without a new order to that purpose; so I would not have it read now.

An Act for settling Henry Whalley and Erasmus Smith in certain lands fallen to them by lots, upon the adventures in Ireland: acres, Irish measure, 11,750; formerly of the Lords of Ardes (fn. 3) and Glainboise.

They pretend that one may compound, per the Lord Protector's ordinance; and that the other has articles of war, (viz. Lord of Ardes.) It was desired that these lots, being cast in first, might, notwithstanding these claims, be settled upon them.

Sir John Reynolds and Colonel Markham. Would have some expedient found upon committing of the bill, to satisfy JudgeAdvocate Whalley some other way, for Lord Glainboise has compounded for these lands, according to the ordinance of his Highness. You ought to be tender, likewise, in the articles which Lord Ardes pretends to; hope you will use mercy rather than rigour.

Mr. — Scotch. Lord Glainboise hath been very faithful to you, though he had the hap to be a little wrong, for which he was sequestered; and having compounded (if it be reversed), who is secured ?

Mr. Robinson. These adventurers ought to be specially respected; for they were the first that trusted you, as that gentleman told you. If you be not steady, who will trust you? I would rather violate the other claims, than those which were grounded upon so much trust and confidence in your cause, when it was but in its infancy. I speak it not for Judge-Advocate Whalley, nor for Mr. Smith. I know him not: but I speak for the justice and credit of your old cause. I would not have that trust violated, of all trusts whatsoever. The good old interest ought to be borne up.

Lord Lambert. Lord Glainboise did compound, and was to pay 10,000l., which was as much, if not more, than the estate were worth if it were to be sold. Lord Ardes, by the articles, was to enjoy his estate till the Parliament took further notice. Now the Parliament has taken further notice by the declaration, whereby time was given for such persons, with their estates, to be gone.

All parties have been heard, too and again, in this last case, both before the Committee of Articles (who thought they had power to hear, but not to determine,) and before his Highness and his council, who thought they had not power in it, so they were transferred into Ireland, to be relieved according to the orders and ordinances of Parliament.

I would have this committed, and if you find a clear right in these Lords, or either of them, to their estates, it may be provided some other way for the adventurers; for it may be other men's cases as well as theirs. But I would have you specially tender in performing your trusts and credits. I know that Judge-Advocate Whalley and Mr. Smith have taken a great deal of pains in the business.

The Master of the Rolls. If this adventure be taken from them, which they have assigned them by lot, they can never resort again; so by this means they lose the whole. I care not, so it be not totally lost. It was your first faith, and it may be well called an adventure; for Ireland was almost all lost when they adventured.

"The King made himself merry," said Luke Robinson, "by saying of these adventurers, that 'you carved the lion's skin before he was dead.'" I desire that it may be committed for the relief of the adventurers.

Major Waring. I am against the committing of this bill, for there are other trusts and faiths to be performed, and other members concerned. I desire that you would not take one and leave another, but consider all together. There are faiths of greater concernment unsatisfied.

Sir William Strickland and Major-General Kelsey. These adventurers should be satisfied out of the composition monies, (fn. 4) for you ought to take care of them that, out of mere conscience, trusted you, and to respect the justice of the Parliament and the army too.

Major Morgan. Lord Ardes' articles have been twice affirmed. Lord Glainboise hath done you more service than disservice. I would have them repaired; but, rather, that their estates might be assigned them in some other part of the nation; for in the North, (fn. 5) the Scotch keep up an interest distinct in garb and all formalities, and are able to raise forty thousand fighting men at any time, which they may easily convey over into the Highlands, upon any occasion; and you have not so much interest in them as you have in the inhabitants of the Scotch nation. I would have the adventurers have the lands fallen to them by lot; and the other claimers provided for elsewhere.

Resolved, That this Bill be committed in the Duchy Chamber (fn. 6) to-morrow.

Mr. Bampfield and Mr. Robinson. All that serve for Ireland should be of this committee.

Sir Gilbert Pickering and Mr. Highland. Against any such distinction of members. It is an ill precedent, and looks not like an union. Desire that they may be all named, and name as many as you will; but let them not be exclusively added.

Mr. Ashe, the elder. As they sit in Parliament they are not Irishmen, but mere Englishmen.

Resolved, That all that serve for Ireland be of the committee.

Resolved, That the bill for small debts be resumed on Saturday next.

Mr. Pedley brought in the bill for the relief of prisoners and creditors, (fn. 7) read the first time. Appointed to be read the second time on Tuesday next.

Mr. Speaker. It is time that I should leave the chair upon the business of the Scotch Union. (fn. 8)

Resolved, That the hill for the ministers of Northampton be brought in on Tuesday next, per Mr. Harvey.

Major-General Disbrowe. I would not hinder the bill for the Scotch Union, so desire another day for the bill for trial of actions in their proper counties. We have but a short time. (fn. 9)

Mr. Speaker. There was such a bill indeed, that no actions should be tried at the bar (fn. 10) but such as the justices appointed.

Resolved, That it be read the second time on Tuesday next.

Mr. Highland. We have but a week to sit, so I would have you go on with the bill for the Scotch Union.

Sir Thomas Wroth, I shall not undertake to determine how long or how short a time we shall sit, so I would have you read the bill for recusants, (fn. 11) and go on to dispatch other business in order.

Resolved, That the business of the Scotch Union be resumed to-morrow morning, at nine o'clock, without fail.

An Act for the discovering, convicting, and repressing of Popish recusants. Read the second time.

Mr. Bond. There is one desperate clause in it, as I understand it: if my wife turn Papist, I shall suffer sequestration of two-parts of my estate.

Lord Whitlock. I except against that clause, if it be as that gentleman opened it.

I would not have it solely left to the discretion of any persons to judge who are suspected to be recusants. This is too large a liberty. I would have rules in it. There are other things to which I could except, which I shall do at the committee.

Sir William Strickland. Something else should be provided: not only to renounce Popery, but to give some sign that a man become a Protestant, lest, instead of being a Papist, he become an Atheist.

I would have the oath taken more solemnly, either in open sessions or assizes, not before two justices.

Mr. Fowell. The Protestant guardian should not only be bound for his life, but the child should be brought up in the Protestant religion.

Mr. Robinson. I except against the preamble. 1. You asperse your war in charging it as the cause of the increase of recusants.

2. It is in the power of one justice in sessions. I never heard of one justice to make a sessions.

3. It will be chargeable, to bind people over to prosecute in such cases, without some consideration for their trouble.

4. I would have the conformity as publick as you can, for otherwise you will lay justices open to temptations. It was told you, not long since, of a white capon taken by a justice.

5. There is no clear way for the discharge of the estate. Being once seized and certified, it is hard to get it discharged.

6. It is a good clause, that against marrying of a Papist wife.

Dr. Clarges. I except, 1. against the manner of conviction, for the Pope can dispense with it.

2. Against the clause for marrying a Papist wife. The believing husband shall convert the unbelieving wife. (fn. 12)

Mr. Downing. That clause for marrying a papist wife is the best part of it. It is against the Scripture. Solomon cxccpts against it. (fn. 13) It was that which the late king lost not only two-thirds for, (fn. 14) but all; by marrying of a Popish woman.

Mr. Bacon. Something should be added to the oath.

Mr. Butler. I am very much beholden to Mr. Bacon, for he helped most to the drawing of the act. I, for my part, have some exceptions against it.

Sir Gilbert Pickering. If a man shall renounce the supremacy of the Pope, and haply, in his own private opinion, may hold purgatory or some other thing in the oath, it is hard that for this he should be sequestered. I would have no man suffer for his bare opinion.

Mr. Butler, admitted to speak again, supports the motion.

Mr. Picketing. The end is not to punish any for their opinions, but to reduce them to the obedience of the government. Great sums go out of this nation from the Papists, and great sums come from beyond seas for relief of poor Papists.

He made a long story to little purpose.

Mr. Speaker. It was well observed to you by Mr. Robinson, that no provision is made for conformable heirs.

Major-General Packer. Clerks of the Peace and other officers may not do the business without fees, but be paid out of the two parts.

Mr. Floyd. I have exceptions against it, but will offer them at the Committee.

Resolved, upon motion by Mr. Bedford, That it be referred to the same Committee, and all that come to have voices. To meet to-morrow afternoon, in the Duchy chamber.

Resolved, on the motion of Mr. Croke, That the report concerning registers (fn. 15) be made on Friday.

Resolved, on the motion of Colonel Cox, That the Committee for Norwich stuffs do fill up the blanks. (fn. 16)

Drugo Wright, (fn. 17) brought to the bar. Confesseth he directed the subpœna to be served upon Colonel Wilton, which his attorney told him he might do. He is sorry for his fault.

Mr. Speaker and Mr. Bond. A prisoner ought not to stand up till the Speaker bid him rise. Have known a delinquent upon his knees all the time.

Mr. Bampfield. By the orders of the House, the prisoner ought not to kneel when the Speaker speaks to him.

Sir John Hobart. You will accept of his submission. He is an ignorant young fellow, and hearing that a messenger was gone down into Norfolk for him, he appeared gratis, and rendered himself to the Serjeant. I desire also, that: the order out, to apprehend the attorney, may be withdrawn.

Lord Whitlock seconded what he moved.

Mr. Robinson. If you have such privileges I would have you to assert them, lest those without think you dare not own them. I doubt it is out of design to put these affronts upon you. I fear it makes others presume. You have had more complaints of this nature in this Parliament than in many years before. I would have you commit him till he petition to be discharged; and begin with him, to make examples.

Mr. Bond. I never knew any brought upon his knees before you, but he was returned back again to prison that he might petition before his releasement, and that it might appear upon your Records.

Colonel Wilton. I humbly desire he may be enlarged; for though very tender of the breach of your privilege, yet I am content, for my part, to pass it by, because the fellow is but young and ignorant.

Mr. Speaker. I have seen that, forty years ago, the serving of a subpœna was a breach of privilege.

Colonel Cox. A subpœna ought to be an extenuation of the offence. We are to judge by what things are, and not by what the offence will be. I would not have this gentleman strictlier dealt withall than others.

Major General Disbrowe. Sending for him hither asserts your privilege. It is not his putting in paper or petition that does it. I desire he may be discharged without petition.

Resolved, that, at the request of Colonel Wilson and the humble submission of the party, he be discharged; paying his fees.

Resolved, That the warrant against Edward Parker, the attorney, be withdrawn.

In the Speaker's Chamber sate the Committee for Norwich stuffs, where we despatched the bill. Mr. Butler had the chair.

In the Painted Chamber sat James Noyler's (fn. 18) Committee. Nayler was called to answer to a new charge touching some unseemly communications between him and Martha, (fn. 19) his fellow prisoner. She stroked his head, and sat breast to breast, and desired him to go with her. He answered, he was not free, and several other particulars.

The Committee was ready to rise till Mr. Carey and Mr. Lister came in, and desired that Nayler might be asked something, as to the substance of the whole charge against him. The sense of the Committee was against asking him any more questions, lest it should intricate the report; yet, for their satisfaction, that all might be clear, he was admitted to speak; and being asked if he had any more to say, he told us that he doubted some had a design to entangle his innocency, and instanced in something that one said, the other day, at the Committee, (it was Mr. Downing,) We have gotten enough out of him. Nayler said, this hath stuck upon his spiritever since.

Yet, by good providence, the gentlemen that doubted, were more confirmed by his second answer; and acknowledged he said more, materially, in these last words, than in all the other times of his examination. The words were thus: —" I do abhor that any honour due to God should be given to me, as I am a creature. But it pleased the Lord to set me up as a sign of the coming of the Righteous One, and what has been done as I passed through these towns, I was commanded by the Lord to suffer such things to be done by me, as to the outward, as a sign, not as I am a creature."


  • 1. The writer of the MS. when he names more than one speaker, appears to express their united opinions; probably in the language of the speaker first named.
  • 2. A blank in the MS. The name probably omitted of some Member for Scotland.
  • 3. This Lord, in August 1649, had joined Ormond "with 7000 Scots." —Whitlock's Mem.
  • 4. The sums paid by Royalists, who had been permitted to compound for their forfeited estates.
  • 5. Of Ireland.
  • 6. Probably a court-room for the business of the Duchy of Lancaster, now oceupied by Parliamentary Committees.
  • 7. In this parliament, September 25,1656, it had been ordered "That a committee be appointed to prepare a bill to compel those who are of ability, and lie in prison, to pay their debts; and also for relief of such as lie in prison and are not able to pay their debts." This important object, of giving to creditors a legal power over the property rather than over the persons of debtors, which is still a desideratum in national policy, had engaged for some time the attention of those who possessed the powers of government. In 1653 was printed "a list of all the prisoners in the Upper Bench, remaining in custody the 3rd of May, 1653." This list appears to have been procured, in consequence of an order from the Long Parliament, just before their forcible dissolution. The number of prisoners amounted to 393. The short Parliament, or Convention, which assembled July 26,1653, presently appointed "a committee for prisons and prisoners." They reported, on the 17th of August, "A charge against the Marshall or Keeper of the Upper Bench; as also divers grievances in that and other prisons, both in reference to creditors and debtors, and several proposals, as well for relief of all creditors whose debtors are in prison, being able to pay their debts, and against the oppressions of poor prisoners; and appointed a bill to be brought in, upon the proposals reported, for relief of creditors and poor prisoners." This bill, after several discussions, "was passed, October 5,1653, and ordered to be printed and published, and the House appointed a letter to be written to the several commissioners in the several counties, for putting in execution this act." These Commissioners appear not to have given satisfaction, for in the first parliament of Oliver, Protector, October 25,1654, "several inconveniences" are described in the printed journals, and a committee directed to "prepare and bring in" a new bill. Nothing, however, appears to have been done effectually, and the abrupt dissolution of the parliament in January following, prevented any farther proceedings.
  • 8. Termed in the Journals "The bill for uniting of Scotland into one Commonwealth with England."
  • 9. The parliament, however, was not adjourned till June 9,1657.—See infra p. 44. note
  • 10. Probably of the Upper, formerly the King's Bench.
  • 11. Those who refused to take the oaths appointed to be administered for the detection of Papists.
  • 12. Referring, no doubt, to the Apostle Paul.—1 Cor. vii. 14.
  • 13. Here is probably a reference to the warning respecting "the strange woman."—Prow. ii. 15, v. 20.
  • 14. It appears that the Popish recusant forfeited to the government, on conviction, two-thirds of his estate.
  • 15. These respected wills and letters of administration. The subject had been before the House, on the immediately preceding days. It appears that England and Wales were to have been divided into a number of locally convenient districts.
  • 16. According to the Journals, "have power to bring in the penalties for Ailing up the blanks."
  • 17. So named in the Journals. There is a blank in the MS.
  • 18. It appears from the printed Journals, that the case of Nayler, which will be found to occupy an undue proportion of the following pages, had come before this Parliament October 31 preceding, when it was ordered: "That a Committee be appointed to consider of the information now giving, touching the great misdemeanours and blasphemies of James Nayler, and others, at Bristol and elsewhere; and to examine the truth thereof; and to report the matter of fact, together with their opinion therein: with power to send for the said Nayler and the said other parties, and such witnesses as they shall think fit. And that they have power to send for such magistrates, as they shall find to have been remiss in their duties therein. And likewise to look upon the laws and ordinances made against blasphemy. And to prepare a bill, as well for the supply of the defects therein, in reference to such blasphemies and misdemeanours, as also for taking away such old laws made against tender consciences, as are fit to be taken away. And they are desired to do this with care and speed." The Committee were in number fifty-five; among them were LordChief-Justice Glynn, Baron Parker, and most of the law officers of the Commonwealth, with Roger Boyle, Lord Broshill. In Mercurius Politicus is the following entry, Nov. 5, 1656:—" Divers strange and absurd pranks having been played lately by James Nayler, the quaker, at Bristol, he is sent for up by order of Parliament."
  • 19. Martha Simmons, when Nayler was riding through a town in Somerset, was one of "his company," who "spread their garments, and sang, 'Holy, holy, holy!' before him." State Trials, (1776,) ii. 265.