The Diary of Thomas Burton
26 May 1657

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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: 26 May 1657', Diary of Thomas Burton esq, volume 2: April 1657 - February 1658 (1828), pp. 124-134. URL: http://british-history.ac.uk/report.aspx?compid=36840 Date accessed: 20 October 2014.


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Tuesday, May 26, 1657.

Being the first day upon the new footing of the constitution, I came in and found the House debating about Captain Arthur's Bill, (fn. 1) which was committed, and all the members for Ireland to be added.

Colonel Sankey and Major-General Bridge moved, that Colonel Louthian's petition might be read, which was done and referred to the Committee at Worcester House; therein to be done as in cases of the like nature.

Lord Cochrane moved, that the Lady Stewart's petition might be read.

Mr. Speaker inclined.

The Master of the Rolls. I move that all private business may be laid aside. The weather grows hot. I hope we shall not sit all summer. I would have public business, as monies and the like, and the clamours for the public faith (fn. 2) attended to.

Major Morgan and Major Aston moved that the business of Ireland might be taken into consideration; which was of great consideration: otherwise, all the expense of blood and treasure spent there will be lost.

Dr. Clarges moved, that the Bill for Assessments in Ireland might be brought in, before any thing further done for Ireland.

Mr. Pedley moved, that the Bill for Assessments in Scotland might also be brought in.

Mr. Godfrey. I move that you would make the report, which is of greatest consequence, touching his Highness's answer yesterday.

Sir Thomas Wroth. I second the wise motion by the Master of the Rolls, that all private business be laid aside for a fortnight, and that we go to those that are most public. It is all that the people are like to have for their monies. They are likely to pay well for it.

I would have you take the courage which belongs to your place, that you would not gratify every man, which is a hard thing for you to do, by receiving private business; as if we should perpetuate this Parliament.

Colonel Gorges moved for the privilege of a member, viz. Mr. Denn, (fn. 3) but it was put off till to-morrow morn.

Mr. Speaker. The report from the Speaker had the preeminence, ever since I sat in Parliament.

He made the report of his Highness's speech, and read the speech verbatim. (fn. 4)

Lord Chief-Justice Glynn. I move that this debate be put off till to-morrow; and to the end you may be an example to other Courts of Justice, that you would not delay that business of Lord Craven's; but go on with it now, seeing the counsel are waiting at the door, and it is at the parties' great charge.

This motion was seconded. (fn. 5)

Mr. Bedford moved, that the Bill for recusants be read on Thursday; for Assessments and the Irish Bill on Friday.

Sir William Strickland moved that the report for York River be read on Saturday.

The counsel for Lord Craven were called in, viz. Mr. Finch and Mr. Alien, counsel, and Mr. Hartlipp, Solicitor.

Mr. Speaker. I move, that for the gravity of the House, while this cause is hearing, you, being as a Court of Justice, would not talk to one another, nor move out of your seats, nor stay in the gallery, in regard the House is thin.

He asked Mr. Finch who he was of counsel for.

He answered, he was of counsel for my Lord Craven, and moved that the petition might be read, which was done.

Mr. Finch. This is a supplication of the saddest petitioner that ever came before you, and it is the best entrance that ever was to have right in this business, to be admitted into this honourable assembly, where there ought not be trifling. It is not only a petition of grace, but of right.

Three sorts,—I. What did precede that vote of confiscacation?

II. That which did succeed that vote, before the Bill of sale.

III. That which has been since the Bill.

In May, 1641, no man so short-sighted but might see the storm. He had leave to go into Holland.

The counsel made report of the rebellion breaking out touching Sir Charles Coote's letter, &c.

Mr. Finch. An endeavour, I may say a practice, to bring Lord Craven under sequestration. I will not perplex my evidence by setting forth the place where, and the like circumstances. Our greatest evidence is out of your Journals. We desire they may be read.

March 6,1650. Under that date, appears both Sir Charles Coote's letter, Mr. Attorney-General's report, and all the proceedings thereupon.

The first thing offered was the license of the House of Lords of the 10th May, 1641, for Lord Craven's going over.

Mr. Speaker required the counsel to withdraw.

Lord Chief-Justice Glynn. I move that any member may stand up and move for the parties to withdraw; otherwise, all the burthen will lie upon you. But another thing is considerable, whether you will not hear all parties, both the AttorneyGeneral and the parties who are purchasers; for if you proceed to hear ex parte, you must hear it over again. At least let the parties have notice, and leave it to them to appear or not.

Mr. Speaker. I move that it may be known whether the purchasers have had notice. It falls out so that the AttorneyGeneral and solicitors are both members, and so cannot, in person, plead at the bar. It is fit some counsel should be assigned in their place.

Sir Thomas Wroth. It will not be wise to hear parties on one side; but to adjourn till you can have all parties.

Colonel White moved, as from the purchasers, that counsel might be heard on their parts. (Some were named to me, as Serjeant Maynard, Newdigate, Dr. Turner, Mr. Walker, &c.) and likewise that counsel might be assigned for the Commonwealth.

Colonel Shapcott moved to have the counsel called in, and asked whether the other parties had notice.

Colonel Grosvenor. It matters not whether the parties gave any notice or no, for no counsel will presume to come hither without your order.

Dr. Clarges. It is not proper to hear counsel for the purchasers, but only for the Commonwealth; for the dispute lies between the Commonwealth and Lord Craven, who prays that a part of an Act of Parliament may be repealed.

The counsel were called in again.

Mr. Speaker asked them whether the Commonwealth or the purchasers had any notice.

Mr. Finch. I cannot say that the parties had notice, but the Attorney-General being a member of the House, could not but know it; and, for the purchasers, I am informed they took a copy of the order that we have.

The counsel again ordered to withdraw.

Mr. Speaker. I move to know what counsel you would have. Serjeant Maynard cannot be of counsel, because he is a member.

The Master of the Rolls. A case of 21 King James, touching one Nichols, who had a patent about customs, was heard here, where it was moved by Lord Coke that every member here was of counsel for the Commonwealth. So I would not have you assign any counsel for the Commonwealth.

We are both judges in the case, and counsel for his Highness and the Commonwealth. First examine the matter of fact, and then see whether there be need of counsel or no.

Lord Chief-Justice Glynn. It is true we are all of counsel for the Commonwealth; but we ill take care of it, unless we know the case, and how can we, unless it be opened to us on both sides.

In the case of a reversal of an attainder, a scire facias must go out. Here the purchasers are mediately, and the Commonweath immediately concerned. For that case of Nichols, that was a grievance, a monopoly; so needed no notice to the patentee. But if you hear it, altera parle, you must, of necessity, hear it over again. Though the AttorneyGeneral be a member, yet he is not excluded from caring and giving directions about the business.

Mr. Speaker. If you mean to give notice to the purchasers, you may as well put it off till next Parliament; for it is impossible.

Lord Whitlock. There are five hundred purchasers, and it is impossible to give them all notice; yet if some of them have notice it is enough; for though they have taken a copy of your order, yet they cannot come to plead before you without your order.

Several persons of the Commonwealth are counsel besides the Attorney-General and Solicitor; as those that attend your Treasury. I would have the orders general, that counsel may be heard on behalf of all parties; and that in the meantime it may be committed to Mr. Attorney and Mr. SolicitorGeneral.

Sir Gilbert Pickering. The purchasers have nothing to do, as to the confiscation, whether right or wrong. They have not an immediate, but only a consequential right to be heard in this. I move that the counsel for the Commonwealth may take care in it.

Mr. Speaker. As to the matter of fact, the Order is general, to hear Lord Craven's business at the bar. So that the counsel on the other side had as much right to come here as Lord Craven's counsel.

Colonel Shapcott. I move to have Mr. Attorney-general and Mr. Solicitor-general called in; (they were in the Court of Wards,) and that they may be heard now, and all the parties concerned as purchasers, to withdraw.

Mr. Bond. I am not concerned as a purchaser of this or any other delinquent lands: but I should as soon have bought this land as any other; for there are many circumstances to make out this.

Sir John Barkstead. I am no purchaser of Lord Craven's estate; but, as the case is, either the Commonwealth, the purchasers, or Lord Craven, must be losers, and it is as reasonable that one should be heard as another. I believe the other parties will produce as many records and proofs as Lord Craven's counsel do. I shall desire you, Mr. Speaker, that a day may be appointed to hear all parties.

Colonel Cooper. This is a business of consequence; for it is not only tending to a reversal of a judgment of Parliament, but of an Act of Parliament.

If this business thrive, it is likely you may hear more of this kind. I would have you to assign counsel on both sides, and not give more favour to a traitor, a delinquent, an enemy, than you do to your friends; for your enemies cannot be concerned as purchasers.

Sir William Strickland moved, that a day might be appointed, and that counsel might be heard on all sides, if they please.

Mr. Moody. I move only to have the Commonwealth's, and not the purchasers' counsel. We are bound to make our bargain good.

Captain Hatsel moved to appoint the counsel for the Commonwealth positively to attend, and the purchasers, if they please.

Sir Richard Onslow. It is clear that men may be both judges and counsel. The judge uses in criminal cases to tell the prisoner that he is of counsel for him. All that the purchasers could say is, they have an Act of Parliament. There may be precedents found for reversal in such cases, upon an appeal. I am of opinion with that honourable person, that we are all of counsel for the Commonwealth.

Mr. Highland. An Act of Parliament is the greatest security under Heaven. I wonder to hear it said the purchasers are not concerned. They are most concerned of all. I have none of those lands: I bought some of them, but sold them again, being suspicious, lest the tide should turn.

The Parliament were the only judges who were traitors, &c. I find Craven and Stowell in the very front of the Bill of traitors. Certainly those purchasers have the best title under Heaven. Certainly, they ought to be heard. Lord Craven is but accidentally concerned: and so it seems it was accidental; for there was but one vote, and a false witness carried it.

Mr. Bodurda. I am sorry to see so little attention to this business. If you think fit to relieve Lord Craven, there will be cause of attention. It may concern the Commonwealth & or 300,000l. I would have two or three solicitors appointed to prepare the business. Counsel can but do the work of counsel.

Dr. Clarges. I did observe counsel on the other side at the door, ready to be called in, if you please. I desire that Saturday next be appointed for the day.

Saturday was appointed.

Mr. Highland offered a petition in the case of Rodney and Cole. (fn. 6)

Mr. Speaker. There is a cross petition, and you had better appoint it a day; otherwise you are in for this day.

Mr. Bond and Mr. Lechmere moved, that the Bill for Marriages might be read; which has laid a long time by you.

Colonel Sydenham moved, that the petitions may be now read; which, upon the question, was resolved.

The scope of Rodney's petition was to have an Act of Parliament to confirm the House's Resolves.

The scope of Cole's petition was, that the value of the goods was overset above 1000l.; whereas most part of the goods were returned in Spain, and the remainder were not worth 100l.

The petitions were referred to a Committee; and the Committee, to whom the petition of George Rodney and his wife was referred, was revived to that purpose.

Colonel Shapcott moved, that the Committee might have power to examine upon oath; but

Mr. Speaker bade take heed of that.

Sir Gilbert Pickering. I move on behalf of that reckless person Nayler. (fn. 7) If you care not for him, so as to let him have a keeper, he will die in your hands. His Highness has recommended it to us (fn. 8) to move you in it.

Mr. Lechmere moved to have all private business excluded for fourteen days; but he was taken down by Lord Strickland.

Mr. Speaker moved, that both his motion was irregular, and he was irregularly taken down.

Mr. Lechmere. Your orders were broken, upon me, by that honourable person.

Sir Christopher Pack and Lord Strickland seconded that motion, for Nayler having a keeper with him.

Sir William Strickland moved, that Nayler might have a keeper; but such a person as is a Quaker already; that those that have not the plague may not be infected by him.

Mr. Grove seconded that motion, to exclude all private business for fourteen days.

Sir Christopher Pack. It is his Highness's desire to have a minister sent to Nayler. The truth is, he is very weak.

Major-General Skippon. I am not against sending a mi nister to him, and would be glad to hear any thing fro him that might encourage you finally to release him. I am against having a Quaker go to him, or any favour at all, till you know something more of his application to you. I fear too much indulgence to him has hardened him in his way; so I cannot consent to show him any favour till I find him deserve it.

Colonel White moved, to leave it to the governors of Bridewell to care for necessaries for him.

Colonel Sydenham moved, that a keeper might be assigned him by the governors of Bridewell; and a minister also, to convince him, if it be possible.

Resolved, that a keeper be assigned him. (I neg. (fn. 9) )

It was moved that his Highness might appoint a minister.

Mr. Grove and others thought it not proper, but would leave it to the governor.

Sir William Strickland. It is not fit that my Lord Protector's name should be used with such a miscreant's.

Mr. Bond. It is not fit to move any thing here of the Chief Magistrate's desire; for his desires are commands.

Sir Gilbert Pickering. I move, that seeing it is his Highness's desire to appoint a minister, he might appoint one. He best knows who is fit for that purpose.

Resolved, that a minister be admitted to him.

Mr. Godfrey moved, that you were fittest to appoint a minister, and named Mr. Caryl. (fn. 10)

Major-General Whalley. I second the motion, that all private business may be excluded for fourteen days; or a month, rather: that you would meddle with none for a month, but what you are already possessed of.

Colonel Clarke. This is so good a motion, that you cannot reject it. I cannot move it for less than a month.

Mr. Bond. I move to make trial for a week; for if you have not private business, you will have no House.

Mr. Moody moved for a month's time.

Mr. Speaker. I move that you would try it for a week; for when private business was excluded for two months, you did less public than when you took in private. Haply, you may not sit a month.

Mr. Disbrowe. I am sorry that private business should be the only reason of the House coming together. I have known private business hinder men from coming. I mean, by excluding private business, such as have not a day fixed.

Sir Gilbert Pickering. I move that you would not exclude private business at all, because of the difficulty to distinguish, and you are makers of your own judgments. It is equal that poor people that cry to you should be relieved, &c.

Resolved, that no new private business be received for fourteen days. (fn. 11)

In the Speaker's chamber sate Lady Worcester's Committee. Colonel Gorges in the chair. Adjourned till Thursday morning, and dispatched all but a proviso for saving the purchasers' and other estates. (fn. 12)

Footnotes

1 See supra, p. 123.
2 See Vol. i. p. 93.
3 M. P. for Canterbury.
4 Probably as it now appears in the Journals.—See Appendix, No. 5.
5 " Ordered, that the debate upon this business be adjourned until to-morrow morning, the first business; nothing to intervene."—Journals.
6 See vol. i. p. 300.
7 See supra, p. 119.
8 He was one of the Protector's Council.
9 This, probably, means that the writer of the MS. was for the negative.
10 "Ordered, That the President and Governors of Bridewell, London, do assign a keeper to James Nayler, now in Bridewell;" and " do permit a minister or ministers to have recourse to James Nayler, to confer with him." Journals. This appears to have been the last order during the existence of this Parliament, on a subject equally disgraceful to the heads and hearts of the majority of that House, who ought to have discovered, long before this time, that the case of this self-deluded but inoffensive victim of their intolerance, required the skill of a physician rather than the severities of a gaoler. Nayler was, I apprehend, detained in prison till the restoration of the Long Parliament; when, " the 8th of September, 1659," it was " Ordered, that James Nayler be forthwith discharged of, and set free from, his imprisonment in Bridewell, London; and that Mr. Speaker do grant a warrant for discharging his imprisonment, and setting him at liberty accordingly." Journals. The religious society, with whose early history the name of James Nayler has been so often connected, have long ceased to attract the public attention, except by readily joining their fellow-citizens in all attempts to promote " peace on earth, and good-will amongst men." Nor can 1 satisfy myself to conclude this subject, so disgraceful to men who professed to be Christians and free citizens, but who " knew not what spirit they were of," without quoting the following just and candid view of Nayler's case, from the compilation to which I have been frequently indebted, and in which his recantation is preserved:— " We have not taken notice, in this abstract, of that rigorous sentence pronounced against James Nayler by the Parliament, in 1656, and most severely executed; in regard that Nayler was, in the cause of those sufferings, justly censured by the generality of his own persuasion; to whom he was not reconciled again, till he had passed the bitter pangs of a sincere repentance. Howbeit, 'twas very observable that he endured his extreme punishment with a patience and magnanimity astonishing to the beholders. [See vol. i. p. 265, 266 ] And many were of opinion that, had not the blindness of their zeal who condemned him been at least equal to the blackness of his guilt, a punishment much more moderate might have sufficed." See " An Abstract of the Sufferings of. the People called Quakers; from the time of their being first distinguished by that name." (1733.) i. 168.
11 Journals.
12 The following state-paper was published at this time; and is too much connected with the now increasing embarrassments of the Protector's Government, to be here omitted. " Whitehall, May 26. Some discovery was made about the dispersing of the treasonous pamphlets formerly mentioned; written to infect men's minds with that inhumane and damnable doctrine of privy murther and assassination. " Beyond the Tower, six or seven parcels of the said books, made up like bales of silk, and which seem to have been brought from beyond the sea, were seized by some officers, who, attending there to observe such as might convey away customable commodities, and perceiving a man slily to convey the said parcels ashore, questioned him; and he betaking himself to his heels, ran away, leaving the parcels behind him. " There was also one stranger apprehended, with a bundle of the same books under his arm. This man was formerly one of his Highness's life-guard; but being found to have a hand in that seditious pamphlet, published two years ago, intituled Quæries, written on purpose to pervert those who are called Anabaptists, and disaffect them against the Government; he was for this cause a-while imprisoned, and cashiered; but being afterwards set at liberty, he, of late, hath been privy to Sindercom's business; since which time he hath been beyond sea, and now being returned, was found going to scatter these devilish books, which seem written on purpose to promote the said design. The said Sturges being this day brought hither, hath been under examination before his Highness, and stands committed to the Tower of London." Mercurius Politicus, No. 363.