The Diary of Thomas Burton
6 December 1656

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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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37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53

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'The Diary of Thomas Burton: 6 December 1656', Diary of Thomas Burton esq, volume 1: July 1653 - April 1657 (1828), pp. 37-53. URL: http://british-history.ac.uk/report.aspx?compid=36741 Date accessed: 03 September 2014.


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Saturday, December 6, 1656.

An Act for the Forest of Deane (fn. 1) read the second time.

Colonel Shapcot and Mr. Bond proposed that it might be committed.

Resolved, that it be committed to the same Committee. (fn. 2)

Colonel Rouse moved for the order of the day, Nayler's.

Sir Christopher Pack. I move that a short Bill touching the Earl of Huntingdon may be read, as ordered.

An Act for confirmance of the Sale of certain lands sold by the late Earl of Huntingdon, for payment of his debts, &c. was read a second time and committed.

The House resumed the debate upon the report made yesterday, touching James Nayler, and, after debate, he was sent for and heard at the bar of the House. So far in the Diurnal. (fn. 3)

I was not at the beginning of the debate, but with the Border's Committee.

Mr. Floyd. I would have you make a court for the trial of Nayler, that you may keep your legislative power, and proceed judicially. It is not only malum prohibitum, but malum in se. It is against the law of God, of nature, and nations too: Though the bishops be taken away, the law against blasphemy is not taken away. I would have a particular court erected to hear and determine.

Lord Strickland. It is a hard case that we should have no law in force to try this gentleman, but you must have recourse to your legislative power. This House never took up that power but upon extraordinary occasions, with a protestando not to draw it into precedent. If there were a law to try him without, others are better judicatories in such cases; but to condemn him first, and then try him, as was offered to you, is very hard.

I think it but fair that he should have a fair trial, to hear what he will say, and hear the witnesses, if they agree in the evidence, and then condemn him or acquit him.

Colonel Cox. This is a matter of great moment. If there had been a law to this purpose, you had not had this trouble.

The eyes of all the nation are upon you for this issue. The world abroad says it is liberty of conscience has brought this fellow before you. I am of the same opinion. I am as much for liberty of conscience as any man, but when one runs into these extravagancies I think he exceeds that liberty.

To the order of your proceedings. First, call the party hither and read the charge, and ask him, guilty or not guilty, and thereupon order your proceeding, before you prepare a bill; for I would have him have all the fair way of trial that may be. It concerns his life.

Resolved, That Mr. Bodurda be heard again to this business.

Mr. Bodurda. I am sorry it should fall to my lot to put you to the question. For my speaking, I rise not to trouble you with long speeches. I find the House divided: some would have him called to the bar; others tried at law. I offer an expedient.

I would have you first put it to the question, whether to agree with the Committee, and whether this be a sufficient charge whereon to arraign this person.

Major-General Disbrowe. I shall offer an expedient, though haply foolishly: that this fellow may be banished; for life is precious, and you have matter enough, already, to ground such a sentence upon.

Major Audley. I move that his Highness's advice may be desired in it, and yet, in the mean time, that you would provide a law against such blasphemy for the future, and proceed when you have thus advised.

Mr. Church. I desire he may be called to the bar, as often moved. That you would set apart one of these three days, which you have left, to seek God in this business; for if we be not tender in God's honour, he will not honour us. We ought to be zealous in this business as in Achan's case. (fn. 4)

Mr. Highland. It would make any tremble to hear, these horrid things, and to think what this fellow's profession was, and what it is now. To deny God, or to make himself equal with God. We ought to vindicate God's honour, if his name be upon us, but we must honour him as well in the order and justness of our proceedings; not to judge before you hear. All judges are tender in this. You have heard no witness against this man. Let him have a fair trial. I am against his banishment; for you must send him to some of your plantations, and there he will infect more: the like consequence will be if you imprison him. I would have him brought to the bar, and let him hear the charge against him read. Haply he will confess as much as you will desire of him. If he be guilty of these things, let him not longer infect the nation.

Mr. Bampfield. The calling him to the bar, is but a mean to delay the business. The great argument is, that you are not to credit what you have from others' eyes or ears. You believe your Committees' Report in all other matters, that concern the lives, liberties, and estates of three nations. Nay, without the report of a Committee, you have, at one breath, concluded that all the men that have been cut off in the Spanish war, were justly cut off, and that shall be cut off in that service; for you have, without further examination, agreed the Spanish war to be undertaken upon just grounds, and you will pursue it. (fn. 5) The like has been formerly done, in votes that have cut off the lives of 100,000 persons without any examination. You ought to credit the Committee then, certainly, in a matter of lesser nature, though I would have you tender in this business. You see by the eyes of your Committee, and what they do is the act of this House, I am sure, in other cases.

Again, The manner of the proceeding at this Committee was more solemn and exact than at other Committees; for I believe most of the House were there.

As to that of the want of an oath: We did charge them, in the most solemn manner that we could possibly devise, that they would be careful in what they said, what was the concernment, before whom, in whose presence. We had no power to administer an oath.

But it does not only depend upon these affirmations of the witnesses; but upon Nayler's own confession. There lies the main stress. It was foul enough before, but the ugliness of it, upon his examination, and his carriage at the Committee did more appear than before. It did more than fasten the information, which was but historical to the matter.

He confessed that the woman said these words and expressions, which Mr. Piggott, by Providence, came to the Committee and informed; " Rise up, my love, my dove, my fairest one, why stayest thou amongst the pots;" only he denied the woman's kissing his hand. (fn. 6)

I conceive you have the matter-of-fact fully before you; and the objections answered, to the evidence, which wholly depends upon his own confession.

If you bring him to the bar, upon what will you proceed ? If you take his answer in parts, then you must debate the parts. If to the whole, he may, with the Archbishop, desire time to answer to it; (fn. 7) so you shall know where you begin, but where you will end I know not, if you take this course. The first question ought to be, as it was first moved, whether this offence be blasphemy, or no.

Colonel Sydenham. I should be sorry to spend your time in this business, but I cannot advise you to go a greater pace than ought to be. I know nothing of the shortness of your time, this gentleman, haply, knows more of it. (fn. 8)

I have met with no argument to convince me that we should agree with the Committee before you hear the party. I would not have such a thing drawn into precedent. 1. It may be any man's case, hereafter, to be accused for an offence, and from the bare Report of a Committee, to have the sentence of death passed upon him without further hearing. This gentleman told you now, what a full Committee there was at this examination, and yesterday he told you how hard it was to get a Committee together.

2. If the stress of the whole lie upon his own confession, your work will be easier if you call him to the bar.

3. This gentleman told you, that every time that the party went off from the Committee, they were more satisfied with the matter of fact, than before. I would have this House also satisfied in this.

4. It is said you agree with the Committee in matters of great consequence that concern life and liberty, &c. but you do not undertake to be the executioner. For that of the Spanish war, it differs certainly from this case: we do not draw the blood upon us, for they are and were our enemies.

This Report is of many particulars, and like Strafford's case. The charge is accumulative blasphemies.

Mr. Ashe, the elder.—You ought first to declare him guilty of such a crime: then draw up the Bill of Attainder against him, and then call him to the bar. But your previous question is to agree with the Committee.

Mr. Croke. Under favour, this gentleman, though an old (fn. 9) Parliament-man, is mistaken in the manner of your proceedings. It is against the orders of the House to speak again today, for at this rate I know not where. you will, end.

We are most of us, as private, persons, satisfied with the matter of fact, wherein the worthy reporter has taken a great deal of pains, in the faithful report of it. Every man, I hope, that professes the name of Christ, will bear his testimony against this blasphemy.

But, by all rules of law and justice, you ought first to call him to the bar; haply he may deny matter of fact, haply matter of law. He may say it is not blasphemy, I would have him called to the bar.

Major-General Skippon. I move that he may answer positively to the Report.

Sir Gilbert Pickering. I move that it may be respited till Monday. It is now twelve, (fn. 10) and it will take your time so long that you will be forced to sit as long as you did yesterday, which will not agree with many men's healths that are here.

Major-Beake. You have two questions before you. First, to agree with the Committee. Second, to call Nayler to the bar.

I am for the first. The objection, it seems, lies against the truth of the Report. Certainly greater solemnity could not be at a Committee than was at this Committee; almost 150 there. You have given greater credit to a Committee in matters of property and liberty, instanced in the bills for sale, &c.

A matter of the like nature cannot possibly fall before you, as private persons. I presume few of us but do believe that the confession was, re vera, true, and it is fixed in every man's breast. Those that argue from the greatness of the punishment, look further than I can divine.

I suppose none can tell what his sentence shall be till the offence be agreed on. If you want a law, who can supply it, as in the case of a Strafford, but a Parliament. Shall punctilios and modalities and forms, bind and tie up a Parliament? We are not thus strait-laced; arguments from consequences are not good in these cases; when the nature of the thing ties us punctually to perform it.

Every man is satisfied that this ought highly to be taken notice of. You are no more bound to precedents than in Stratford's case. You may create a form when you please. It is a notorious reflection upon the Committee, to give them absolutely the lie.

If the party stand mute or deny, where are you then. For my part, I conceive your proper question is, to agree with the Committee.

Major-General Goffe. By the orders of the House the other is the proper question.

Captain Baynes. However others look upon Nayler, I look upon him as a man, an Englishman. I would have him so tried as to bring in a bill of attainder against him, or leave him to the law. It is below you to honour him with a trial here; but if it must be otherwise, let him be called to the bar, and proceed judicially against him, lest the precedent be of dangerous and ill consequence to other persons, whose lot it may be, in other cases.

Mr. Bedford. When, in the long Parliament, you did by a law confiscate men's estates and lives and liberty, both in England and Ireland, had you any more, nay so much, evidence as in this case, though, I presume, justly too. For my part, as a private person, I am sufficiently convinced of the matter of fact. Yet, to the end we might be unanimous in this thing, I desire he may be called to the bar and heard: but although he should deny it, I dare affirm it. He did speak blasphemy in my hearing, which is sufficient to conclude my judgment.

Sir William Strickland. I have taken an oath to stand for the liberty of Parliament. I always understood a Report from a Committee to be good evidence against an offender. I would not have this passed without clearing the honour of Parliament. With this salvo for your honour and liberty, for general satisfaction call him to the bar, that all the world may know you do him more liberty than you needed. I would have your proceedings justified as much as may be, and him left inexcusable.

Colonel Briscoe. Qui per alium per se is the case of your Committee, and if you agree with the Committee, what needs further examination ?. I always understood a Report to be evidence, else you reject what is your liberty, as I have heard, though not so well acquainted with the orders of the house, that frustra fit per plura quod fieri potest per pauciora. My opinion is clear that the question is to agree with the Committee.

Mr. Lister. That no more time may be spent, call him to the bar. For my part, I am not satisfied with the Report in all particulars. I desired at the Committee, in the close of the business, that he might be heard again, to see whether the notes that the gentleman had taken did agree with Nayler's sense or no. So I desired he might be called, but was overruled.

Resolved, That Nayler be forthwith called to the bar and have the charge read to him, whereunto he is to give his answer Yea or No.

Captain Hatsel was speaking to have the debate put off till Monday, but Colonel Purefoy took him down.

The Master of the Rolls resumed Captain Hatsel's motion. In a matter of this consequence you ought to take time fully to hear the whole matter.

Mr. Bond. That gentleman ought to have asked your leave before he had spoken against the vote, immediately before he was orderly taken down.

Mr. Speaker. In regard the third part of the House, was gone, it was properly moved to adjourn.

Mr. Downing. I wonder what the word "forthwith" means, if it may be taken away by a subsequent vote. It is to no purpose to make laws or orders, if the word "forthwith" cannot be understood. I think it looks more like immediately than like Monday morning; else I understand nothing.

James Nayler being brought to the bar, refused to kneel or to put off his hat. The House agreed beforehand that they would not insist upon his kneeling, being informed that he would not do it, and that he might not say that was any part of his crime. They would not give him that advantage; but commanded the serjeant to take off his hat.

Mr. Speaker asked him of his name and country as in the Report, whereunto he answered after the old way of canting; (fn. 11) confessed all but that passage about Mrs. Roper. "It might be," said he, "she kissed me. It was our manner; but when I found their extravagancies I left them. All that knew me, in the army and elsewhere, will say I was never guilty of lewdness; or so reputed. I abhor filthiness. See if any can accuse."

The clerk read the charge to him in parts, which he, upon the matter and in effect, confessed, what was in the Report, saying, "I do not much mind what is behind; I believe the Committee, many of them, will not wrong me;" or, "I stand to what they testify;" or the like expressions he used; "It is likely I said so;" "I cannot say against it," &c.

Being asked about assuming the title of the fairest of ten thousand, he shifted it notably thus. He that has a greater measure of Christ than 10,000 below him, the same is the fairest of 10,000.

Question. King of Israel; assumed you thus?

Answer. As I have dominion over the enemies of Christ, I am King of Israel spiritually.

Q. Are you the judge of the world?

A. I cannot deny what I said at the Committee. But the Speaker, desirous to help him, here said, " Mind what you say; are you the judge, have you no fellow-judges." Then he answered " No;" saying again," I hope you have so much justice and charity as not to wrest my words;

"God set up this Vessel as a sign of his coming, but hot li mited in this vessel, though it is thence that the hope of Israel springs."

Q. Why did you ride into Bristol in that manner ?

A. There was never any tiling since I was born so much against my will and mind as this thing, to be set up as a sigh in my going into these towns; for I knew that I should lay down my life for it.

Q. Whose will was it, if not yours ?

A. It was the Lord's will, to give it into me to suffer such things to be done in me; and I durst not resist it, though I was sure to lay down my life for it.

Q. How were you sure ?

A. It was so revealed to me of my father, and I am willing to obey his will in this thing.

Mr. Speaker. A sign is not only set up to direct the (fn. 12) —:— to his own, but to direct others.

A. True; such as will turn to Christ, by this sign to repentance, Christ is come to them: haply some are not able to bear this.

Q. Are there any more signs than yours ?

A. I know no other sign. There may be other signs in some parts of the nation; but I am set up as a sign to this nation, to bear witness of his coming. You have been a long time under dark forms, neglecting the power of godliness, as bishops. It was the desire, of my soul, all along, and the longing expectation of many godly men engaged with you, that this nation should be redeemed from such forms. God hath done it for you, and hath put his sword in the hands of those from whom it cannot be wrested. That sword cannot be broken, unless you break it yourselves, by disobeying the voice, the call, and rejecting the sign set up amongst you to convince them that Christ is come.

He denied their kneeling to him as was informed.

It is likely the women kneeled as much to others. It is an evil that bears that testimony. It is not true. They gave no worship to me, I abhor it, as I am a creature.

Mr. Speaker. Christ came long since, and you say he is but now come in the flesh.

A. It is well for those that can witness him long since come in the flesh. It is but of late he is come to me; but I say he is again come in the flesh, and he is daily manifested in the flesh; though none can bear it.

As to those words of the woman, Arise my love, my dove, my fairest one, why stayest thou amongst the pots ? I own it no other way than as it was spoken in the Canticles, of Christ's church.

I am one that daily prays that magistracy may be established in this nation. I do not, nor dare affront authority. I do it not to set up idolatry, but to obey the will of my Father, which I dare not deny. I was set up as a sign to summon this nation, and to convince them of Christ's coming. The fullness of Christ's coming is not yet, but he is come now.

After a great deal more said to this purpose, which I could not take, he withdrew; and the Speaker desired if he had omitted any thing, he would inform him, or if any desired any more questions might be asked him.

Sir Gilbert Pickering offered another question (being unsatisfied) about what his hope was in Christ's merits, and how he prayed to that Christ that died at Jerusalem. Whereupon Nayler was called in again, and answered pretty orthodoxly to those questions, and gave an account of his faith in God and Christ, &c.

Major-General Skippon. Was against calling him in, or asking any more questions, saying, He hath confessed enough to vindicate the Committee, who deserve thanks, for they have been very faithful and painful in the business. It now lies with us, (being fully possessed of the matter-of-fact) not to suffer the honour of God and the truths of the Gospel, to be thus trampled upon. We shall see what judgments will come upon us. God now looks what you will do. Indeed, my heart trembles at those things remarkable, which will follow your remissness herein. I am afraid there will nothing come of this business, and then sin and judgment lie at your doors. These Quakers, (fn. 13) Ranters, (fn. 14) Levellers, (fn. 15) Socinians, and all sorts, bolster themselves under thirty-seven and thirty-eight of Government, (fn. 16) which, at one breath, repeals all the acts and ordinances against them.

I heard the supreme magistrate say, " It was never his intention to indulge such things;" yet we see the issue of this liberty of conscience. It sits hard upon my conscience; and I choose rather to venture my discretion, than betray conscience by my silence. If this be liberty, God deliver me from such liberty. It is to evil, not to good, that this liberty extends. Good Sir; discharge your duty to God in this thing, and put the question to agree with the Committee.

Lord President. [Lawrence.] The business before you is of great weight; the House is thin, the time spent. I desire you would adjourn this debate till Monday.

Mr. Ashe, the elder. I hope you are fully satisfied that the matter-of-fact is fully represented to you, so as you may freely agree with the Committee.

Colonel Briscoe. It is very clear that he does assume the peculiar attributes of Christ, though he does it with a distinction of visible and invisible; an evasion obvious to every sophister. But, in the thing, I am very ready to give my vote to agree with the Committee,

Mr. Butler. It lies much upon your hands to vindicate share of public interest.—See Whitlock, p. 385, Parl. Hist. xix. 121—123. the honour of God. This fellow has not only committed blasphemy himself; but, I fear me, he caused-many others to commit blasphemy.

The time of discovering this business works much with me; that such an indignity to Christ should be done, sitting a Parliament that professes so highly to the inteiest of Jesus Christ. Do we not undertake his cause, to manage it against Spain, where his name is blasphemed, and shall we suffer him to be blasphemed at home ?

I confess my own weakness and timidity bid my silence; but, I humbly beseech you, make no delay in it. I cannot hold my peace, lest my conscience dog me to my chamber, to my curtains, to my grave.

Mr. Pedley. Put the question, whether what you have heard from James Nayler is not, in substance, agreeable with the Report before you from the Committee, and then proceed to your judgment.

Mr. Speaker. It were best to adjourn.

Sir William Strickland. Nothing has been reported from the Committee, but is, to a grain, agreed by the party's own confession at the bar. I hope you will approve of the way of the proceedings of the Committee, and adjourn the rest till Monday. You have now hell groaning under expectation of this issue, what you will do in this business. I would have us put on courage; and let not the enemies of God have the upper hand, to have liberty to blaspheme his name. It is the cause of God, and ought not to be slighted.

Colonel Sydenham. Adjourn till Monday morning; Nobody has been James. Nayler's advocate: but this business ought to be fully debated, whether it is blasphemy. Some will say it is but an error, &c. If you put the question to agree with the Committee, you exclude their votes that would weigh the matter of fact; and haply some may demur to the matter in point of law; some, in matter of fact; so that, in my opinion, you are not ripe for such a question, to agree with the Committee. Again, there are many circumstances and things, of small consequence in respect of the main; will you, in the gross, agree all this to be blasphemy ?

Mr. Downing. You are judge and jury. You have heard the prisoner at the bar, and will you leave the business in the midst, after issue joined ? Can I charge my memory till Monday with what is fresh in my memory now ? Have you not the evidence plain before you, and how can you leave off in the midst of an examination ? Are not juries kept without meat and drink; yea, carried from cart to cart, county to county, till they agree in lesser matters, (fn. 17) and shall we break off in this ?

Mr. Speaker. I remember what a gentleman in another Parliament said of the result of our long debates, that it was but as the verdict of a starved jury. It will not be so with us, for many members have dined, though others fast.

Mr. Bedford. You should put the question, whether by the evidence you have heard, James Nayler is guilty of horrid blasphemy, and not delay the business further; for it is high time to proceed in a matter of this nature.

Major-General Goffe. I am of opinion with Nayler in one thing, that he is set up as a sign. He has fulfilled a scripture, that false Christs should arise, "to deceive, if it were possible, the very elect." It ought to be a warning to us, to know how we stand. The Scripture is fulfilled saying, "Lo! here, lo! there is Christ; but do not believe them."

The Report helps us well to understand the matter of fact, and what he hath confessed; I would have you, upon the whole matter, agree that James Nayler is guilty of blasphemy.

Mr. Speaker. Do not complicate the question, for he may be guilty of matter of fact, and not of matter of law. You involve all by this means. I would put the question simply.

Colonel Chadwick. The proper question is, to agree with the Committee in the Report; or, otherwise, whether that question should be put.

Major-General Disbrowe. I believe that James Nayler is guilty of blasphemy, (fn. 18) but I shall not hinder your question to agree with the Committee in the Report.

Sir Gilbert Picketing. It is most Parliamentary to agree with the Report, in parts, and debate it so all along.

Major Audley. It is a gross mistake to agree with the Report in gross. I cannot agree to this; but rather to proceed upon your own knowledge. What you have heard with your own ears from him, may be the ground of your proceeding now; or otherwise to examine it in parts.

Captain Hatsel. The Committee did proceed with much integrity and care, to answer all ends. While I was there, his own answers were sufficient convictions, as to the matters charged against him.

Resolved, To agree with the Committee in the Report.

Resolved, To adjourn the further debate of this business till Monday; and no other business to intervene.

This debate held till almost four, which spoiled the sitting of all Committees; (fn. 19) I question whether it has not left them all, sine die, unless some met only to adjourn. I went to look after Committees after five, but found none, only Sir Gilbert Pickering very serious with the clerk in the lobby, copying but Nayler's charge, to be better prepared against Monday.

Footnotes

1 "A Bill for mitigation of the forest laws within the forest of Deane, in the County of Gloucester, and for the preservation of the wood and timber."—Journals.
2 "The Committee for the Forests, and the Bill for the preservation of timber."—Ibid.
3 Probably one of those weekly Newspapers Mercurius Politicus, Public Intelligencer, &c.; if not, to the MS. Journal of the House, from which the printed Journals were afterwards compiled, and which the author of this MS. will be found occasionally consulting.
4 See Joshua vii. 18.
5 "The 1st of October, 1656; Resolved, upon the question, by the Parliament, nemine contradicente, that the Parliament doth declare the war against the Spaniard was undertaken upon just and necessary grounds, and for the good of the people of this Commonwealth. And the Parliament doth approve thereof, and will, by God's blessing, assist his Highness therein."—Journals.
6 "At Nayler's last examination before the Committee, being Wednesday, the 3rd instant, (December) one William Piggott did inform, that Nayler, sitting in a chair, where he is now a prisoner, one Sarah Blackbury came to him and took him by the hand, and said, ' Rise up, my love, my dove, my fair one, and come away. Why sittest thou among the pots ?' And presently put her mouth upon his hand, and sunk down upon the ground before him. "To which Nayler himself, being examined by the Committee, confessed she took him by the hand, and spoke the words aforesaid, but denies the putting her mouth upon his hand, and such bowing-down; but saith, that he sat low, and that he was not free to go with her. And Nayler being asked to whom she directed that speech, answered,' To the Lord, and to him that raiseth from the dust, and casteth them down that are exalted.' And being asked whether he reproved her for that expression, he answered, he reproved her not."—State Trials, (1776) ii. 270.
7 See State Trials, (1776) i. 833.
8 Here is, probably, as on former occasions, a reference to some apprehension of a speedy dissolution. Yet this could not take place, without a direct violation of the Instrument of Government, December 16th, 1653, of which the following was the 8th Article:— "That neither the Parliament to be next summoned, nor any successive Parliaments, shall, during the time of five months, to be accounted from the day of their first meeting, be adjourned, prorogued, or dissolved, without their own consent." The Protector had strictly observed this article, by not dissolving the former Parliament, which met September 3rd, 1654, till it had existed exactly five lunar months.
9 James A she was member for Bath in the Long Parliament.
10 See supra, p. 36, note.
11 Being asked whether his name were James Nayler, he answered, "He is so called." Being asked, "How long he hath been so called ?" He answered, "Ever since he can remember."—State Trials (1776), ii. 271.
12 Here the MS. is unintelligible.
13 See supra, p. 22, note.
14 See supra, p. 29.
15 The Levellers, who have probably been misrepresented and unjustly censured by their contemporary historians, are described by a modern writer, as having "comprised a large body of Englishmen, of the finest sense, purest manners, and most enlightened religion."—See "The Principles of the Levellers, 1659," in Harleian Miscellany (1810.) vii. 36—46. The Levellers had demanded a new Parliament, chosen by all but paupers and hired servants, and appear to have foreseen, as early as 1649, and only a few weeks before the execution of Charles, what the ambition of Cromwell would attempt. This I learn from a very scarce pamphlet now before me, entitled, "The Hunting of the Foxes; or, the Grandie Deceivers Unmasked: printed in a Corner of.Freedome, right opposite to the Council of Warre, Anno Domini, 1649." The authors, four private soldiers, "late members of the army," had been cashiered by a court-martial, for having presented a remonstrance to the Lord-General Fairfax. In this pamphlet, after censuring the "Council of State" as "now about adorning itself with all regal magnificence and majesty of courtly attendance," they thus proceed, (p. 8.) "Yet this is not our new intended king; there is a king to succeed: this is but his viceroy. O Cromwell! whither art thou aspiring ? The word is already given out amongst their officers, ' that this nation must have one prime ruler, or magistrate, over them;' and, 'that the General hath power to make a law to bind all the Commons of England.' This was most daringly and desperately avowed at Whitehall, and to this temper the court-officers are now a-moulding: he that runs may read, and foresee the intent; a new regality!" Whitlock quotes from "the Levellers" the thirty heads of their "Agreement of the people." Among these are the following: "Parliaments each to stand for one whole year; none to be compelled to fight by sea or land against his conscience; men's persons not to be imprisoned for debt, nor their estates free; men's lives not to be taken away, but for murder or the like; every parish to choose their own minister, and to force none to pay; no estate levelled, or all things common." These, so unjustly described Levellers, probably the only consistent republicans of their time, became obnoxious to the Powers in possession. The funeral of "Mr. Lockier," one of their number, "a trooper, who was shot to death by sentence of the court-martial," in 1649, is particularly described by Whitlock, and shows that they had attracted no small Macauley, v. 6—9.
16 "The Instrument of Government," promulgated December 16th, 1653. It contained the following articles, uncommonly liberal, excepting the injustice of tolerating neither "popery nor prelacy," and the assumption that Christians alone could claim that dearest of civil rights, religious liberty:— "37. That such as profess faith in God by Jesus Christ, (though differing in judgment from the doctrine, worship or discipline publicly held forth) shall not be restrained from, but shall be protected in the profession of the faith and exercise of their religion; so as they abuse not this liberty to the civil injury of others, and to the actual disturbance of the public peace on their parts. Provided this liberty be not extended to Popery, nor Prelacy, nor to such as under the profession of Christ hold forth and practise licentiousness. "38. That all laws, statutes, and ordinances, and clauses in any law, statute and ordinance to the contrary of the aforesaid liberty, shall be esteemed as null and void." Parl. Hist. xx. 261.
17 That a jury of twelve men should sometimes disagree, in their opinions on the weight of conflicting evidence, could be no improbable case, supposing that each individual juryman should sufficiently consider the obligation of his personal oath. In that case, till they could agree in their verdict, the jury must follow the judge round the circuit, secured, from any other intercourse, in a cart, the only carriage used at the time of the institution of juries.
18 See infra, pp. 54, 55.
19 See supra, p 36, Note * ad fin.