Wednesday, February 2, 1658–9.
Mr. Speaker took the chair at nine.
Mr. Cooper prayed.
Sir Walter Earle and Captain Hatsell moved for settling
the standing Committees.
Mr. Trenchard seconded.
Dr. Clarges. No private Committee can sit while a Grand
Mr. Knightley. If forty be but in the House, to make a
Grand Committee, other Committees may sit.
Mr. Speaker. A Committee for Grievances and Courts of
Justice, are all one.
Resolved, that a Grand Committee of the whole House, do
sit in the House, for Religion, oh Monday; for Grievances
and Courts of Justice on Wednesday; and for Trade on
Friday; weekly, in the afternoon.
Mr. Neville stood up and was going to say something of
what was done yesterday; but stopped, the House being acquainted that Major Audley was at the door.
Sir Arthur Haslerigge moved, that he might not kneel, at
Mr. Bish moved for a little time, till his counsel came.
Major Burton moved to name the Grand Committee; but
was called down.
Mr. Neville. I am glad that what you did yesterday
passed with so much unanimity. I would have something go,
hand in hand with it, for the liberties of the people. The two
great flaws in the Government, one in the sovereign power,
and another in the executive power, were the negative voice (fn. 1)
and the militia. (fn. 2)
The King would not concur, which produced war; and it
was determined on the people's side. I would have nothing
of aspersion. It is in good hands now; so that the propositions sent to the King, in all things, will not agree. As to
the propositions of the militia, about putting it in Sheriffs
and Deputy-Lieutenants, I would have a Committee of able
persons appointed to prepare a law, that your negative voice
may not be many, without doors, (fn. 3) and the militia be entrusted
in safe hands, that it may not be oppressive. I shall not
bring in an Act, but offer my thoughts.
Mr. Starkey. Those things are settled by the Petition
and Advice. The negative voice is of great use on either of
the three co-ordinate powers. I never could find any law to
the contrary. We are met for peace. By law the King had
a negative voice, on whatever was debated or resolved here.
We ought to keep singly to the Recognition, and not perplex
what is either clear, or ought to be meddled with more seasonably. The gentleman says the militia is settled by the
Petition of Right; so he has answered himself. And if it be
settled, let us not dispute it over again.
Sir Arthur Haslerigge. I hoped never to have heard this
motion in this place, that the militia and negative voice are
not in this House. I wonder at the gentleman's modesty,
that he brought not in a Bill. I brought in the Bill for the
militia to be in the House, and— (fn. 4) , and I was sent into
Leicestershire, where we met the King, about settling the
militia, and the King not condescending, we fought it out. (fn. 5)
I have a complaint to this House, which I hope in due
time will be heard; my being kept out of the House, (fn. 6) who
was always faithful.
A strange thing that the top stone shall be laid first. I
would have this business put off till after the fast. I have
met with the printed speeches. (fn. 7) If you please, I will say
somewhat to them. We are in a sad case; our armies in
great arrears, and great need of navies. There is a promise
of accounting to us, (fn. 8) of which we have not heard yet. I
went up as one of your servants, to see in what order we
should be. I saw where the Lords were. I asked where
the Commons should be, and they said, at the bar; where
were servants and footmen; and to stand amongst them we
must have begun to rub my Lord. I believe many members
did forbear to go up. (fn. 9) I would have the speeches read, if
you please. (fn. 10)
Mr. Trevor. I wonder to hear this motion seconded by
the worthy gentleman who moved for nothing to be done
till all Privy and standing Committees w ere settled. He
says Providence has so ordered it, that the case of the
militia and negative voice, are settled by the law, if any
law be. It is said, it was the beginning of the quarrel between the King and the Parliament. I hope it shall not be
the quarrel between his Highness and the Parliament. That
gentleman had it in his choice that we might have stood bare
to him. (fn. 11)
Sir William Wheeler. I move for a Committee to prepare
the Bills under consideration for the people; as the law for
marriages and probate of wills. (fn. 12)
Major Audley was called in; and standing at the bar, (fn. 13)
Mr. Speaker opened the information against him, and said
the House was willing to hear him say for himself, and had
brought him to the bar, not upon his knees. (fn. 14)
Major Audley. I have not been used to speak for myself,
either elsewhere or in the House. I should be sorry to give
offence by speaking. I have stated the matter of fact in a
Petition, if it please the honourable House to hear it.
He was commanded to withdraw.
Mr. Knightley. It is not parliamentary to receive a Petition, before you hear what he can say.
Mr. Trenchard seconded it.
Mr. Scot. Take his answer in scriptis; because he may
be afraid of the intemperance of his language: He may
confess and avoid, confess and justify, or confess and mitigate.
Sir Arthur Haslerigge. I wonder to hear that motion
from a gentleman that has sat so long in this House. The
gentleman ought to confess or deny. If he confess those
words, they will scarcely be avoided. This gentleman has
had more favour than stands to any upon your books.
Sir Walter Earle. I never knew the like, that a delinquent
should bring a framed discourse in writing. This will be an
Mr. Scawen. I never knew a delinquent come to the bar,
and not kneel.
Major Audley was called in again, and required to give a
positive answer, guilty or not guilty ?
Major Audley. I offered my defence in writing lest by
my tongue I should offend while defending myself. I deny
the charge in the main of it. It arose upon an election. I
was duly elected, and being informed there was a double
return, I applied myself to a gentleman to present my Petition. My passion and natural temper being worse than other
men's, I said I would lodge a Petition at the cross bar against
the election. I desired him to withdraw and not let people
be witnesses of our follies.
He said I was not a gentleman, I had no arms: (fn. 15) I was a
turncoat. So that I was provoked to those languages. But
the challenge I deny. I had no intent. I profess I knew him
no member of Parliament; I thought there had been a double
return. I had rather acknowledge myself guilty as much as
I am, than reflect upon him that is your member.
To the other gentleman I said not a word; (but asked him
how long a lease he had of sitting here) meaning only to prosecute. I acknowledge myself accidentally, not professedly,
an offender to this House. I have faithfully served you these
eighteen years, and was never guilty of being a turncoat.
That sticks with me.
Mr. Knightley. The gentleman has given you a very ingenuous answer, and shows himself an able person. I would
have the gentleman that informed, produce his witnesses.
Mr. Lechmere. I observed much of relenting. He asked
pardon of the gentleman, as a gentleman, as a member of this
House; or of the House, in public. As the pardon is asked
publicly, you should forgive publicly. He is a perfect man
that can bridle his tongue, and he that speaks much must
sometimes repent it.
Mr. Manley stood up.
Sir Arthur Haslerigge, underhand, said, 'Another lawyer.'
Mr. Lechmere took exception to this, and said, 'It is a
Sir Arthur Haslerigge. I spoke it for no reflection; but
out of a desire to hear any of the Long Robe speak, which I
would at any time sit down to hear.
Mr. Manley. Major Audley was a civil gentleman when
he quartered at my house. His confession was ingenuous at
the bar. If you please, pass by the business.
Sir Arthur Haslerigge. The complaint is exceeding worthy
your hearing. Many gallant young gentlemen, I see, in this
House, who may be here when I am gone. I would not have
the blood stick on your chair. I think the acknowledgment
is not sufficient. I would fain read the proverb well. "Not
right pity, spoils the city." If one member of this House
should challenge another, I hope he would be turned out and
sent to the Tower.
A competition about an election ! It is said the information is not well proved. A challenge may be whispered.
The law favours passion, as in the case of manslaughter; but
the manslayer goes not without punishment. In the case of
Mr. Holford, (fn. 16) he kneeled at the bar, for one word, and was
sent to the Tower, and you can do no less than send this gentleman to the Tower. I have no end but your own honour,
and to prevent the fall of some young gentlemen in this
House. If the challenge were true, I should disable him
for sitting in this House.
Sir William D'Oyley. The charge is not made out. I
would have it referred to a Committee.
Mr. Steward. His confession did rather imply an ingenuity
than a guilt. His calling him aside was not to challenge; but
lest their follies should be conspicuous. I would have it
Mr. Bulkeley. You cannot so easily lay it aside. This
person has put his hand to the plough and drawn it back.
He was in holy orders. The question is, whether you will
believe a member, or a stranger. I shall put a very great difference between the testimony of the one; and the other, that
has forsaken his profession. I heard a gentleman of this
House say he heard him say, "Let us step to the other side
an hedge, and that will decide the controversy." This tends
to blood. It comes regularly before you to vindicate this
gentleman. He that dares do least in this way, dares do most
in another way. When justice is done, I shall be as much
for mercy as any man. A gentleman heard him say more.
Mr. Solicitor-General. I move that those gentlemen that
spoke the last day may be heard, and their evidence.
Mr. Wharton. I was passing through the hall, and heard
Major Audley say, Mr. Bish was an unworthy fellow, and
that he did not challenge him, but if he would go the other
side of an hedge, that would determine it.
Mr. Bish repeated the same story as before; saying, "I
told him he was an uncivil man, which was all I said."
Sir John Lenthall. Wherever an injury is done to any
member, it is done to the whole. I would have him as highly
punished as any man that has offended in this nature. He is
a man that when authority was in his hands did very much
oppress the country.
Major-General Kelsey. I would have no aggravation. He
is a scholar, and might at first exercise as a minister. It is
not unchristian to do so. When a man finds himself unfit,
it is Christian to forbear the calling, rather than to be unprofitable. I have acted in that country, and never heard him
called an oppressor before.
He apprehended himself to stand in an equal capacity, and
ill language did flow from both. It is an offence in its own
nature, but I would have all circumstances taken in, to
pass a right judgment. I would have it referred to a Committee to have the true state of the case laid before you, ere
you pass judgment.
Mr. Raleigh. I would have Mr. Sturges heard, that is
most concerned in the business. I never heard him said to
be an oppressor of his country. He was not returned.
Mr. Sturges. I intended not to have troubled the House
with it, but that a member advised me to it for the conservation of your privileges.
He repeated the same story that he did the other day, and
said he would not misinform the House.
Serjeant Maynard. If any member did inform you of
any thing, it was. never your use to refer it to a Committee. I would have nothing laid in his dish of what he
has done, otherwise. It needs no aggravation. It is a
challenge. Do justice boldly. Vindicate your privileges,
lest from twenty you come to twelve.
Mr. Solicitor-General. He was in passion. He then
might well forget what he said. It is clearly a challenge,
and if you go no further than to send him to the Tower,
you are merciful.
Mr. —. You will do him a courtesy to send him to
the Tower. He has a house, and a great office there.
Mr. Knightley. I would not have him go thither, for exorbitant fees; but sent to some prison in Surrey. I would
have him disabled from bearing office.
Sir Richard Temple. I shall not speak to the matter, but
to the manner of his punishment. You will not think it
fit to send him to any other place than the Tower. I have
heard much of his ill deportment. I would have him disabled from all office, civil and military. He has forfeited
his mercy by disproving his ingenuity.
Colonel Okey. I have marched with him several years,
and never saw or heard any thing against him.
Mr. Hungerford. This needs no aggravation. The place
is too good. You sent Sir John Stowell to the Gatehouse.
I would have him sent thither. I am not of that gentleman's opinion that said he might draw back from his profession.
Mr. Starkey. The Tower is too honourable for an ordinary offender. I would have him in the Serjeant's custody,
where he will appoint him; which will exercise his purse as
well as his patience.
Lord Lambert. I move that the gentlemen concerned may
Mr. Bulkeley. Those gentlemen are not before you as objects of your justice, so ought not to withdraw.
Mr. Trenchard. The gentlemen ought, in modesty, to
withdraw, though there be no question upon it.
Sir William Wheeler. I would have him sent to the Gatehouse.
Captain Baynes. It is not usual for gentlemen concerned
to press a business after the person have so ingenuously acknowledged. I would have his punishment put off till the
question about the election be determined, lest you punish
the people as well as him; and let him, in the meantime, remain in the Serjeant's custody.
Sir Arthur Haslerigge. I would have the Tower his prison, as most honourable for this House; and the second
question to be, to disable him from sitting in this House; for
I must ever be tender of your privileges.
Mr. Turner. You have testimony from three witnesses,
where one is sufficient. Nay, pro bono publico, a man's self
may be witness in an indictment where no damages are given.
There is misericardia princeps. It is not justice to yourself.
You are the great conservators of the peace. I move that
he be put out of the Commission of the Peace, (fn. 17) for he has
apparently broken his trust.
Lord Lambert. He has done you good service. I am
witness of it. It does not amount to a challenge. It is a
coarse business; scurvy language; a thing in itself less ingenuous than a challenge. I would not have you exercise the
utmost severity to an old servant of yours. I would have
him only sent to the Tower. Sir John Stowell: he was long
in arms against you.
Mr. Eyre. I desire not to add affliction to misery; but
I conceive it was not improperly moved you by Mr. Turner
that be be put out of the Commission of the Peace. He is a
judge of challenges; and though it be not a challenge, yet
it is a provocation. The true valour of fortitude consists
not in passion. He may be fit for the military commission,
though not for the peace.
Mr. Raleigh. This gentleman is my countryman. I never
knew him do any thing on the bench unworthy. I think
your punishment is great enough, without addition.
Mr. Henley. The offence is heinous. That he is a servant to the Common wealth makes his offence the greater. It
is against his duty and his trust. Especially, as an officer,
he ought to give the better example. Great men commit
things with a hundred hands. A little star may twinkle in and
out, but an eclipse of the great luminaries is more conspicuous.
I would have him, at least, turned out of the Commission;
and that you would be so tender of your privileges, and bear
such testimony against all offenders of this kind, as to let
them know they kick against the pricks.
Mr. Hungerford. Leave it to the Lords Commissioners,
upon your sense, to put him out of the peace, if you please.
Nemo bis punietur pro uno delicto. I think it but fit to
be done; but not by you, and let the other punishment
Mr. Grove. It is little enough to put him out of the
Commission of the Peace. How can he make others keep
the peace that is in such a high measure a breaker of it
Colonel Okey. I am loth to trouble you again on this
business. I am sorry to see those reflections, that he is fitter
to be a soldier than a Justice of Peace. I see it will be a
crime to be an army man. Is the expense of our blood nothing ? The Long Robe are very —(but this he said underhand.)
Mr. Chaloner. The punishment is enough.
Mr. Gewen. The punishment must be proportionable to
the offence, in terrorem, to hear and fear. I would have him
put out of the Commission of the Peace.
Mr. Bulkeley. This seems more necessary than any other
part of the punishment. There is a great difference between
a sudden rash act and a pursuance of it, day after day, as
Mr. Wharton said. The next morning after I heard this, I
heard of some further addition. I would have him put out
of the Commission for ejecting scandalous ministers. (fn. 18)
Mr. Starkey. I am against extending the punishment, till
the offence be better attested than by one witness.
Mr. Goodwin. These gentlemen are my near neighbours.
You have done justly in sending him to the Tower. I have
known him a long time. In the Long Parliament he did you
faithful service. For a slip of passion you would not punish
Mr. St. Nicholas. Put the question, whether the question
shall be put.
Mr. Knightley. When you send a prisoner, express the
cause; lest any of us be laid by the heels and know not for
Mr. Bodurda. I move that the cause of his imprisonment be expressed, and the other question waved; for, if you
disable him from being a Justice of Peace, you must make a
previous vote that he shall not be a member.
Mr. Turner. I move the question be put for disabling
him from the Commission of the Peace.
Captain Hatsell moved that the question be now put.
Mr. Speaker declared for the Noes.
Sir John Lenthall for the Yeas.
The Noes went out.
Noes 173. Mr. Goodwin and Mr. Fagg, Tellers.
Yeas 155. Sir Thomas Beaumont and Mr. Henry FitzJames, Tellers.
So the question passed in the negative.
Major Audley being called in, received his judgment on
his knees at the bar; after the Speaker had made an harangue touching the plaga linguœ as well as the plaga dextræ,
&c. that he should stand committed to the Tower during the
pleasure of the House.
The House rose a little past twelve.
I could not attend any Committees. I question if any sat.