The Diary of Thomas Burton: 20 December 1656

Pages 182-196

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

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Saturday, December 20, 1656.

A Petition presented on the behalf of James Nayler, to suspend his punishment for some days, he being sick; signed by one White Zachery and two more, who disclaim the crime.

Mr. Godfrey. I would have the truth of the petition examined, before you alter your judgment.

Lord Lambert had spoken with some of the petitioners, and they did affirm that Nayler was sick and unfit to undergo his punishment. He desires physicians may be sent to him.

Mr. Robinson. Give him a week's time, and spend no more of your time. You need not send physicians. Haply, deferring it for a week's time may work much good upon him, as it did in the case of Sir John Owen, (fn. 1) who, by his reprieve, was wrought to very much good.

Mr. Nathaniel Bacon. Suspend the residue of his punishment till Saturday next, and, in the meantime, send physicians to him, who on Friday may report to you the fitness of his body to undergo the remainder of his punishment. I know most of the honest men that petition.

Mr. Downing. I would have been glad to have seen a Petition from James Nayler's own hand. I desire his further punishment may be suspended, till this day se'nnight, and that, in the interim some godly divines, as Mr. Caryl and Mr. Nye, may be sent to him, to save his soul if it be possible. The Ecclesiastical Courts were very tender in such cases.

Sir William Strickland seconded that motion, and desired that Mr. Caryl, and some such godly minister, might be sent to him, to work good upon him, if it be possible.

Lord Broghill. Make haste with your vote, lest, while you are debating about suspending it, the punishment be executed.

Major-General Kelsey stood up to the same purpose.

Mr. Robinson. Put the suspension of the punishment in the negative, lest we be surprised that were of another judgment, not to have so great a punishment.

Major-General Disbrowe. It was the act of the House, and nobody ought now to talk of what their judgment was.

Lord Lambert proposed, that physicians for the body as well as the soul might be sent to him.

Major-General Disbrowe and Major-General Goffe, to send ministers to him.

Mr. Margetts. That the same punishment which was to be done this day, may be suspended till Saturday next.

Colonel Jones. That the word "reprieve," might be in your vote, lest the punishment be done both days.

Resolved, That the further punishment which should have been done this day, shall be suspended till Saturday next, and that the Sheriff of London and Middlesex take notice to see this executed accordingly.

Resolved, That Mr. Caryl, Mr. Nye, Mr. Manton, and Dr. Reynolds, and Mr. Griffith, be sent to confer with him, or any of the five.

Resolved, That Dr. Bates and Dr. Wright be sent also to him. It was offered for Dr. Clarges, but not thought convenient.

Lord Lambert. I am informed that nobody is suffered to come at him. I inform you as to matter-of-fact.

Mr. Speaker. I must put you in mind of Lord Cobham's business, which you appointed this day to hear counsel of both sides in.

Some desired that the Bill ingrossed, might not be read till the counsel came in. But it seems no Bill can be read in the presence of a stranger.

An Act to enable Sir John Cobham, alias Brooke, to levy a fine upon his lands.

The parties and counsel called into the bar, and Mr. Speaker directed the counsel that were against the Bill, to speak first.

The difference was between Sir John Brooke and some children, tenants in the remainder in tail, two gentlewomen.

Counsel pro petitioners, viz. Sir Peter Ball, Mr. Churchill, and Mr. Turner, alleged, that this House was misinformed by Lord Cobham, for albeit one of the children had joined in the petition, she was heir general.

They produced an Act of Parliament, tertio Jac. exemplied under seal, and offered it to a clerk to read it, but Mr. Speaker directed the counsel to read it himself. He read the proviso, whereby the remainder was limited by the will of Sir William Cobham. We grant Sir John Brooke to be tenant in tail, but now he is ninety years old, and no possibility of issue. Sir William Cobham died in your service, and left daughters, whereof Colonel Tomlinson married one. He is now in Ireland, and has no notice of this Act, and so will lose his portion.

Mr. Churchill. Though Sir John Cobham, in strictness of law, is tenant in tail, yet he is limited by no act of his to discontinue the first settlement. If this aged gentleman should die, we are next heirs by the Act of Parliament to Sir William Cobham.

Counsel Mr. Finch and two more, pro defendant in the Petition.. We shall make it out that, if Lord Cobham were dead, this estate should not descend upon the petitioners:—

George Lord Cobham made his will in Queen Mary's time. He had eight sons and two daughters.

To William, the eldest son, and the remainder to his heirsmale, to the tenth. The like limitation to every son to the tenth son. ' William had issue, Henry and George Lord Cobham, and other daughters. Henry was attainted of treason in primo Jac. but not executed. George was attainted and executed the same time; whereby the king became intituled . to the estates of Henry and George, and their heirs both in possession and remainder. George had issue Sir William, who:.had four daughters. The king, thus seized, grants to Duke Brook and his heirs, for so long as George or Henry should have any issue of their bodies. Duke dies without issue; Henry, the first attainted, surviving, whereby they can never make a pedigree as heir male. . The entail is not yet spent, though Lord Cobham die without issue, for there are heirs male of Thomas, the second son yet living. Besides, William's daughters have heirs yet living. Sir Jerningham married one of them, who has heirs male living. Thus we are now upon the account of equity before you.

Mr. (fn. 2) of the same side. Either they must pretend from Duke or Charles.

Mr. Churchill and Sir Peter Ball. Till they make out the suggestions of the petition, they ought not to have their Bill pass. They ought to make their title, and that it be clear and that we have no prejudice by it. But, whether we have the wrong, or some other, the wrong is to-some, and this is all one to this House in point of justice, so there be wrong done.

Mr. Finch. Though they had a tide, yet, as we are here before you, we shall make it out.

If there had been no attainder at all, this Lord Cobham had been tenant in tail by the common law, but being fettered by the act, he desires to be released.

It is for payment of his debts, which Parliaments have usually favoured. It agrees with natural justice that a man's estates should pay his debts. They are not vainly contracted. It was by the alum work and salt-petre, for the public good. He laid out 10,000l. to bring the alum works to perfection, for which the Exchequer thought fit to give him 800l. per annum, but there is owing him 11,000l. for that. He desires but 300l., and let them take all the lands and pay his debts. These daughters that petition, have been no losers by this estate, and now they come and reward Sir John Cobham well, by obstructing this Act. He desires but the common right which a tenant in tail ought to have, if he were not restrained by an Act of Parliament, whereby he has no benefit at all. That Act was made to preserve it in the name, which now is impossible. We desire no more but what Englishmen ought to have.

Sir Peter Ball. A Parliament never took away a third person's right without his consent. They have proved neither of the allegations in their petition. Though we had no right, yet if any others have right, you will not, I hope, conclude them without hearing.

Mr. Speaker pressed them two or three times to spare time which, with us, was precious, and to offer nothing but new matter. Where one affirms, and another denies, we cannot ground any judgment.

The Counsel were, of each side, three; the ladies and all parties, to the number of twenty, withdrew.

Mr. Speaker. What will you do upon this debate.

Major-General Kelsey. I understand not the law, but matter of fact, thus: Lord Cobham has contracted his debts in the king's service. Sir William Brooke died in your service, and these are his daughters that petition. It appears not to me that they have the right, but it seems others have right whom we have not yet heard. I desire this Bill may be rejected.

Alderman Foot and Major-General Boteler. It is confessed by Lord Cobham's counsel, that, though Sir William Brooke's issue have no right, yet there are others that have right, viz. Jerningam's daughter, or the heirs of Thomas, &c.: this is the strangest argument. I desire the Bill may be rejected.

Mr. Bampfield. This may he helped with a salvo to every map's right, to he preserved.

Colonel Cox. For the reasons aforesaid, I am for rejecting the Bill; besides, the allegations are not proved, which ought to have been done, as in the case of a patent, Otherwise, it is void.

Lord Lambert. Though Lord Cobham was a delinquent, the creditors were not. Many of them have faithfully served you. It was told you that the man had ingenious things in him for the public good. I know matter-of-fact, as that he is in debt on account of sums contracted for the public service.

Four reasons offered to you.

1, The corruption of blood, which, I have heard, bars all estates.

2. That those that petition against the Bill have not the right.

3. That it is for payment of his debts.

4. That by the common law, tenants in tail may cut off entail for payment of his debts. This consideration is equitable, and I desire, so far as it may stand with justice, that it may be considered.

Lord-Chief Justice. I do agree with this noble Lord, that, so far as justice will allow it, the consideration for paymeat of debts ought to be allowed; but I never knew this House pass a law to the prejudice of any person without his consent. Jerningam's title is not heard at all before you. It is fit Lord Cobham's estate should pay his debts, but not that another man's estate should pay these debts. Their own counsel confesseth some have a right. How, then, can you pass this law, without hearing all parties. Sir William Brooke faithfully served you, and died of a great sickness in your service, not of the shot. (fn. 3) The Long Parliament thought fit to relieve his children. He died possessed of this estate; and, after his death, the estate came to Lord Cobham; so that Sir William's children were wholly left destitute. Again, this debt of Lord Cobham's was not contracted when he was possessed of this estate, but before. Again, Sir William Brooke died in debt too, and this land was then liable, if he had had issue male.

Mr. Attorney-General. Lord Cobham has had the possession of this estate thirteen years; whereas, if Sir William had not died in your service, he might have had the possession all this time, and so have provided both for his own debts, and made provision for his children. The Long Parliament considered this; and if it were now before you equally, to which you will show favour, surely you will prefer, him that has served you. The suggestions on Lord Cobham's side are not proved. All parties have not been heard. It is acknowledged some must be wronged by this Bill; therefore, I desire it may be rejected.

Captain Baynes. If this Bill be rejected, I shall hardly hereafter give my consent to the cutting off any entail for payment of debts. It is impossible to hear all parties that may pretend to an estate. There is a clause in the other Act, which does restrain all the issue of the two attainted persons, from whom these daughters claim. I desire this Bill may pass for a law.

Mr. Robinson. We must not rob Peter to pay Paul; make one man pay another's debts. It is but just, that when Sir John Cobham dies, (I cannot call him Lord; he is an Oxford Lord (fn. 4) ) that it should revert to the children of Sir William. I remember something of his good service, and of the bad service of the other. He has another estate in Lincolnshire, whereby he may pay his debts; but he would lay it upon that estate which he knows must revert to these children. Again, the allegations are not proved. They have abused you, and they ought to be punished. I desire it may be rejected.

Mr. Goodwin. This is a just Bill that my Lord Cobham desires, for payment of his debts. It is granted, by the common law, he may do it, as tenant in tail, and all he desires here is but that he may be left at liberty from that restraint of the Act tertio Jac. which was only to preserve the estate in the name, and to no other purpose, now the name is likely to be extinguished.

Mr. Bond. Mr. Goodwin has twice called Sir John Cobham, Lord Cobham. I. desire he may pay his fine, viz. 20s. The counsel called him (viz. Mr. Finch) ten times. Here is a justice of the peace in the House. I desire he would issue out his warrants to levy the fines upon all that have called him Lord Cobham.

Mr. Robinson. This gentleman, and all that have given him that title, have transgressed the Act, (fn. 5) and ought to pay. the penalty; we have no need of a justice of peace in this case. No justice of peace can act within these walls. I desire that the gentleman may lay down his 20s. upon the table, and all the rest that have called him so, that warrants may issue out to levy the fines upon them. I shall cite you a case in the Long Parliament, of a gentleman that swore in the House, and he was enjoined to lay down his fine upon this table. I desire it may be put to the Question, whether these fines shall not be paid.

Mr. Goodwin. I did not call him Lord Cobham. I spoke of old Lord Cobham, and the settling of the estate by him.

Major-General Disbrowe. If such a law be violated, it is fit it should be put in execution, and that every one that has wilfully called him Lord Cobham should pay their fines.

Mr. Speaker. By this rule every member must pay his fine, for you have called him Lord Cobham in the Bill.

Colonel Sydenham. I am beholden to these gentlemen that minded me of it, for I should also have called him Lord Cobham; but, as I take it, he claims not by the new patent only, but as the title is an ancient descendible title.

Major-General Goffe. If it were so frequent to call him so, as the members might well mistake it, I desire all may pay their fines that have given him that title.

Resolved, that this Bill may not pass for a law.

Resolved, that this Bill be rejected.

Colonel Sydenham. Let some days be set aside for the dispatching of the most material Bills before you, and not let one business jostle out another, by new matter every day, especially the business of the Spanish war. Two days a week may be set apart for the business.

Mr. Bond. Many members are gone, the beginning of this week, others are agoing, as I hear. I desire a day may be appointed to call over the House, lest we be called a rag of a Parliament, as formerly we have been called. They ought not to go away without leave.

Mr. Robinson. I would not have more leave given to one than another. We have all occasions to be at home, but the public service ought to be preferred. No man can depart this House, without leave. I desire either that we may all go home by adjourning for two or three months, or that all may be enjoined to attend. Either adjourn, or rise, or let us all fall together to it, and dispatch it out of hand.

Sir William Strickland. Though I have as many occasions at home as another, yet I should be loth to adjourn till the business of most concernment before you be dispatched. To this purpose I would have you fall upon some bills that are most material, as that of the war with Spain, for carrying that on, and that all the members might be enjoined to attend, and be called at some day next week.

Major Brooke. The weather is cold, the days short, and we do little. I desire to second that motion, that we may adjourn for two or three months, and in a short time we shall dispatch what is before us. For us to attend, and others be absent, it is very unreasonable.

Dr. Clarges. I hope you will not think of adjourning, till you have done some of your business, at least that which is most material, as provision for the Spanish war, which can no more move without nerves and sinews, than can the natural body. I desire you would fall close to that, and cause all the members to attend by such a day, Wednesday sennight, or about that time.

Captain Fiennes. We had better never have met than to; adjourn now. We cannot kill the king of Spain, nor take Spain or Flanders, by a vote. There must be monies provided, and other Bills passed. Shall we rise, and pass but four Bills. It is private business jostles all out. I would have all the members called, and fall to our. business.

Mr. Downing. I live near, and have least reason to be heard to this business; yet I hope you will not think to adjourn till you have dispatched some great business before you.

He did enumerate several Bills, as excise, recusants, probate of wills, &c. Desired two things to be done: that the members might all be called by such a day, and that two or three days in the week might be appointed for the Spanish business: Monday for private business, and the rest for public business of most concernment; but, yesterday and today both, we have been upon private business, which, as was pretended, would hold us but a quarter of an hour.

Captain Hatsel. After some of your greatest business is over, the motion to adjourn for some months may be seasonable, in respect of the cold weather and short days.

Major-General Disbrowe. You should appoint two days a week for Spanish business; to begin on Tuesday. . I should be as willing as any man to adjourn, but it is neither safe nor honourable to adjourn till that be done.

Mr. Fowel. We cannot adjourn, till we have made provision for the. war we have voted. I desire the members may be all called, that it may be done with a general consent, especially in monies.

Resolved, that Tuesday and Thursday in every: week be appointed for the business of monies.

Mr. Robinson, Mr. Butler, and. Mr. Moody proposed that two days a week may also be set apart for public business.

Sir William Strickland proposed that the House should be called on Christmas Day, that it might be known who are absent, either upon that occasion or any other.

Captain Baynes. You will take no notice of Christmas Day in this House. You have appointed Tuesday and Thursday for Spanish business. I hope you will not put that business off, and call the House on Thursday, because it is Christmas Day.

Mr. Downing stood up to speak to that business, but took occasion to vindicate himself from what the Speaker had reproved him for, when he said yesterday was taken up with private business: said that the city business was a private business.

Mr. Speaker. By the orders of the House, no member ought to stand up and plead for himself upon pretence of speaking to another business. He ought to have said any thing at the time in his own justification.

Major Burton. It is very hard that those that have constantly (except in cases of sickness) attended all this time, should now be debarred from taking the same privilege to go home upon their occasions. I myself have business at home; a servant out of his time the first of January, and nobody to look after any thing. I shall not desire to go without leave, no more ought others to have gone.

Mr. Highland. You should pass a vote, that those that are gone without leave may appear here on Monday se'nnight.

Major-General Kelsey. Wednesday se'nnight is the soonest time that you can have them attend. Otherwise they will not have notice. It cannot answer your end to call them sooner.

Major-General Boteler and Colonel Clarke proposed to appoint Thursday next to call the House, and to give a fortnight's time for them to attend.

Mr. Ashe, jun. Monday fortnight to attend.

Mr. Bond. It is presumed that every member ought to attend. If you give them a small time it is sufficient. Twenty resolve to go down on Monday next. If any go down without leave it is a breach of privilege of Parliament. It is reported abroad that we are but a rag of a Parliament. They say that we are now made up of none but soldiers and courtiers, and I know not what friends to my Lord Protector. This is a scandal to us.

Major-General Disbrowe. I hope no man thinks it a scandal to be a soldier, or my Lord Protector's friend; but this is not a time of day to quibble, or make long speeches. I desire a short day may be appointed to call the House.

Sir Gilbert Picketing. That noble person is mistaken. It is not said that it is a scandal to be a soldier, or the Protector's friend; but he (Mr. Bond) says' it is a scandal abroad upon them. We desire not to monopolize this trouble; but that all may attend.

Major-General Jephson. Nobody, I hope, questions but you may fine a man for departing without leave of the House, for it is to be presumed every member is here. I desire you would appoint some day when the House may be called, that every member may be present, especially at a debate when monies are to be had, that all may mutually consent to it.

Colonel Hewitson. You need not take notice of your members' absence, as in relation to people's talk. If we stay all business till we have a full House, we shall by that rule do nothing, till the time you limit them to attend. It is supposed every member is near, where he may come if he please; so the country cannot say we carry it by parties. ' Every one ought to be here.

Lord Lambert. It is a great fault for the member's to leave you in this business. It is a sin and shame, indeed. I would have the House as full as may be. But I would have you distinguish between such as are approved (fn. 6) and such as are not; and that you would appoint how the manner of summons shall be.

The Master of the Rolls. I shall not deliver my opinion in this matter; but only to the matter of fact. I never knew any success of these votes (fn. 7) in other Parliaments. There may be an ill consequence of it by calling over the House at this time. Those whose conscience will not tie them to the duty, your orders will not; for they will be here for a day, and be gone.

Mr. Robinson and Sir Thomas Wroth. In the Long Parliament we paid our twenty pieces in gold, before we were admitted into the House, for not appearing upon summons. Great things are likely to be moved in this House; whatever come, God will direct me what to say. It is true what is said of us, that we are a party that will do what shall be desired.

Lord Whitlock. Let the old order be reinforced, and Wednesday sennight be the day. I am against calling the House. It will not be for your service.

Mr. Bampfield. I would have these words left out, "such as are approved or shall be approved;" I hope the Council are by this time satisfied of those that are left out, that they are now persons capable to sit. I know one person in town that was excepted, a very pious man, and there are others. I desire all may be called in now; it is surely time; to the end we may carry things on with more unanimity and general consent, especially when we come to tax the people.

Major Brooke. I desire to second that motion, that the restraint of the members may now be taken off; that, by a general consent, we may debate the business before us: all be admitted, else all go home.

Sir Gilbert Pickering. There is more weight in this question than to pass it in such a short space.

Lord Lambert proposed, that the gentleman may explain himself, what he means by having all the members called.

Mr. Godfrey stood up to speak; but Sir Gilbert Pickering called him down, by saying he had the least reason to speak of any man in the House; for he had absented himself for three or four months.

Mr. Bampfield. To the orders of the House. That gentleman ought not to have called Mr. Godfrey down. It was an affront to the meekness of the House, to say any person ought not to speak, &c. I desire he may be called to the bar for it. He ought not to have called him down.

Sir Gilbert Pickering. Before he explain himself, I desire this gentleman may show the reason of his two or three months absenting himself from the House. That was my reason why I interrupted him.

Lord Strickland. I conceive that the gentleman (i. e.) Mr. Bampfield, who called Sir Gilbert Picketing to the bar, might be called to the bar himself to explain, &c.

Lord Lambert. I never intended the least heat when I first moved this business, and am sorry that this should be the issue. I desire the House would adjourn till we are in a better temper. The debate upon the excluded member was well laid aside before; I wish it may not breed further dispute.

Major-General Disbrowe. We grow hungry, and consequently angry. I desire you would adjourn this debate till Monday morning.

Lord Whitlock. I am sorry for these reflections, if it could have been helped. I hope we all sit here upon the foot of one account, every man serves for his country; and I desire to adjourn.

Major-General Gqffe, Major-General Whalley, and Mr. Nathaniel Bacon. I would not have us part in heat; but bring this business to some question first. What will be said abroad, that we were upon a debate, and could not end it; but rose in anger, and so let the sun go down on our wrath. I like not the consequence of such a business.

Major-General Boteler. I hope we shall no sooner be angry, with one another but we shall be friends again. This heat was soon stirred: I hope it may as soon be laid aside. I desire it may be done before we rise, and that you would come to some question.

Mr. Speaker very discretely laid aside the old resolve in this case, to prevent further debate, and so ended the dispute.

Resolved, that Wednesday sennight next the House be called.

Lord Lambert delivered a petition from James Noble, (fn. 8) expressing a great deal of sorrow and penitency that he should offend the House and the Committee. He was not able to undergo the correction, and had not wherewithal to maintain himself; therefore humbly prayed that he may be released, and he will become a new man.

Major-General Whalley. I am glad this place has wrought such a good work upon this man; I have heard them say that the Knight that kept Bridewell, could do miracles. He could make the dumb to speak, and the lame to walk, the lazy to work, &c. It seems this has had the same operation upon this fellow, and seeing he expresses so much penitency, and begs mercy, I desire he may be released.

Resolved, that James Noble be forthwith released from his imprisonment.

Mr. Speaker. I have another business to offer to you. A poor gentleman, Lieutenant-Colonel Owen, is dead, and lies above-ground, his friends having nothing wherewithal to bury him. I desire that it may be referred to the Commissioners for lame soldiers at Ely House, to take care of it. A matter of 5l. would perform the whole business.

Colonel White. If the Parliament will order it, it may be done.

Mr. Goodmn privately spoke of 2s. a piece, and Sir James Mac Dowel of 2s. 6d. a piece, at the doors, by every member to it; but they spoke not out.

Resolved, that it be referred to the Commissioners at Ely House to take care for his burial, and that they issue out 5l. for that purpose.

Per Captain Hatsel Resolved, that Major Burton have leave to go home.

No Committees sat this night but the Committee for the petition of the Aldermen and Common Council of London, Mr. Goodwin had the chair. There were Mr. Robinson, Alderman Foot, Colonel Hewitson, Major-General Berry, Major Aston, Colonel Blake and others. We did nothing, but adjourned till Wednesday next, Inner Court of Wards.

Mr. Robinson thought fit that there should be some person assigned as defendants in the petition.

Resolved, that the House be moved for additional power to the Committee, to send for persons, perhaps witnesses, and records.

The Committee for Trade; and the Committee, for courts at York; both in private Committees, and that was all I saw.

The House doors were shut before five o'clock.


  • 1. In 1649. See Ludlow; Parl. Hist. xix. 56.
  • 2. Blank in MS.
  • 3. Yet Whitlock records, "April 16th, 1647, Orders for four thousand pounds, for the Lady Brooke and her children, whose husband, Sir William Brooke, was slain in the Parliament's service."
  • 4. One who formed part of the Ring's House of Lords, at Oxford, in 1043–4. See Parl. Hist. xiii. 46.
  • 5. Probably that passed in 1651, "for making void all titles of honour, dignity, or precedences given by the late King, since the 4th of January, 1641."
  • 6. By the Council.—See infra.
  • 7. For a Call of the House.
  • 8. See supra, pp. 148–150.