Saturday, February 26, 1658–9.
Mr. Speaker took the chair at nine.
Mr. Cooper prayed.
Colonel Terrill reported from the Grand Committee of the
House for Grievances and Courts of Justice, their resolution
and opinion touching Mr. John Portman ; (fn. 1) that his imprisonment by the Lieutenant of the Tower was, and is, unjust
and illegal, and that he ought to be discharged without any
fees or charge. (fn. 2)
Mr. Jessop (fn. 3) made a narrative of the Book of Characters
found with the Fifth Monarchy-men, which, with the help of
some members now present, he did decipher, and found this
Mr. Fortman often named in the book.
There was a great deal of humility in it, and often seeking
of God. They came to several resolutions to go into arms,
told the manner how, and arms and horses prepared. The
Mews was intended to be seized on.
His late Highness, now in heaven, was very tender towards
them, for that appearance of Christ in them. The commitment was on the account of preserving the peace.
He craved pardon if he had offended.
Mr. Knightley. He ought to be proceeded against, if there
is any law. The gentleman does not charge any action
against him. If any man should come and say I am a Fifth Monarchy-man, I should be thrown into prison, and never
brought to trial in a twelvemonth.
He called the Lieutenant, a Gaoler and a Justice of the
Mr. Neville. There does no cause of his imprisonment appear by the return, so that it is clear he ought to be discharged.
Serjeant Maynard agreed.
Mr. Knightley and Colonel White moved that he might not
only be set at liberty, but have his action against the Lieutenant, for against the Chief Magistrate no action lies.
Sir Thomas Wroth. It was a high breach of the liberty of
the subject. I would have some, of your sense, declare
against him that did imprison him upon a bare letter. Here
is no more in the case.
Sir Walter Earle. You ought, as the first question, to
agree with the Committee, and, if nought be to be said afterwards, let them say.
Colonel Birch. I cannot agree with the Report, that this
business is illegal and unjust. You have had a report, with
much tenderness, touching these Fifth Monarchy-men.
He tells you, the character was deciphered, and that this
gentleman, or one of his name, was in the business. They
were drawing into arms. If they had been under another
name, I believe this had hardly come before you; but I will
say no more of that.
I can agree that the detainer is illegal and unjust, and
against the Petition and Advice; but I cannot agree that
the imprisonment was so. There was good cause for it.
Sir Henry Vane. The reason why we are so in the dark,
is because the whole matter is not before you.
I would have the letter and warrant read, but in that, not
a word of what is reported of the character. If the deciphering of a character by any man that shall pretend to be master
of it, be enough of evidence, few will escape. The Gatehouse was filled with divers persons upon. this score, and
they laid in a miserable case, and were released but a little
before this Parliament.
Let us do what may show we bear the bodies of Englishmen, and not of slaves. If any be a criminal, let him be
brought to speedy justice.
Mr. Bodurda. His Highness did this to secure the peace,
and there was reason haply for it. But if you please to put
the question, to agree with this Committee, I shall concur
Mr. Godfrey. I cannot agree with the Committee. Those
persons were about to raise arms. The Chief Magistrate's
vigilance in this business was not to be blamed. It appears
his name was in the book. (fn. 4)
There is a just imprisonment upon suspicion of treason.
It is hard to go so far, as to condemn the whole. I cannot
agree with the Committee, as to his imprisonment to be unjust ; but of the illegality of the detainer, I shall agree.
Mr. Onslow. In answer to Godfrey and Birch thus:
If there were justice for his commitment; there was the
same justice for his trial. But the proceedings touching his
imprisonment are unjust. The letter for warrant is no just
ground of his imprisonment. Though the crime were true,
no law gives the Chief Magistrate power to commit any man,
of his own accord. If any man was committed upon mandatum domini regis, it was not of the king himself, but per significationem privati consilii. Yet these imprisonments were
condemned in the Arguments, Tertio Caroli (fn. 5) . This is much
higher than ever the King pretended to.
Put the question to agree with the Committee first; and
then do what you please, touching the Lieutenant of the
Serjeant Seys. I agree with that noble knight, (fn. 6) that
it is a dangerous proceeding, to make a man a criminal, by
deciphering a book; though I should suspect them to work
under ground, like moles.
This letter came at five o'clock in the morning. If there had
not been good cause, the Chief Magistrate would not at that
time have broken his sleep. I think the detaining, or trying
a man upon this ground is hard, and the precedent dangerous;
but as to the imprisonment, there are grounds enough for it.
Mr. Neville. Admit that by the book of characters, the
persons had been guilty of high treason; your question is
whether the proceeding be according to law. No cause is
shown in the warrant. Every warrant ought to bear in it
the crime. A Fifth Monarchy-man is not defined, what it is.
Put the question to agree with the Committee.
Captain Clayton. I cannot agree that the imprisonment
Captain Baynes moved that it was illegal.
Mr. Bacon moved the contrary.
Mr. Starkey. I wonder to see the difference amongst the
gentlemen of the Long Robe, in their opinions. I cannot
say that the imprisonment is legal. The law is otherwise.
Multa tenent facta, qua fieri non deberent.
I would not have us mealy-mouthed, hut in a Parliamentary way to assert the liberties of the people; which is the
great part of bounding the Chief Magistrate.
Mr. Attorney of the Duchy. The report is not according
to the sense of the Committee, upon the account of the Lieutenant tearing, by soldiers, the prisoner out of his own house.
They did not proceed upon the papers, but upon the act of
the Lieutenant. Let it go upon the proper sense, and I shall
agree with the Committee.
Resolved, that this House doth agree with the Committee.
That the apprehending, imprisonment, and detaining of
Mr. John Portman a prisoner in the Tower, by the Lieutenant of the Tower, was, and is illegal, and unjust: and
that the said John Portman be discharged from his imprisonment in the Tower, without any fees or other charges to
be paid by him. (fn. 7)
The Counsel and parties were called into the bar, to hear
the case of Neville and Strowde. (fn. 8)
Mr. Finch (fn. 9) made a learned discourse in defence of the action, on Mr. Neville's side, and said it was well brought, and
no new case. He prayed a procedendo in the Common Pleas.
Mr. Green, (for Mr. Strowde.) It is a case primœ impressionis. The Judges (as able as ever) were unsatisfied how
to pass their judgment in it. A Committee of the last Parliament did conclude that election void. (He recited all the
pleading; damages 2000l. The Jury have given 1500l.
I shall offer such authority as is fit to insist upon at this
bar; I offer nought impertinent here; I should much forget
where I am.
It appears that this case, upon the whole matter, concerns the privilege of this House, and here it ought only
to be determined. No other Court can meddle, with it.
Lord Coke (Instit. part 4,) saith: "It is lex et consuetudo
parliamenti that must determine matters of this nature; the
Judges are not to meddle." The Bishop of Winchester's, and
Mr. Plowden's cases, clear this point. The privileges of both
Houses are to determine, and not the Judges. 27 Henry. VI.
in a case between two Lords for precedency, the Judges
would not meddle.
Though a Parliament be dissolved, the Judges cannot
meddle in any cases happening there. Justice Jones would
not meddle. He did declare it as a settled ground and
maxim. Take the case wholly, and it will prove only fit for
a Parliament, not fit to be determined by an inferior Court.
Matters of Election are not properly determinable by strict
rules of common law.
In case of non-residency of a Burgess or Enight, lex. el
consuetudo parliamenti dispenseth it, but the Judges must
judge by the letter of the law.
It was resolved in this House, that a person might sit in
this House, contrary to the opinion of the Judges. I have
the case here at large. To serve in Parliament, is certainly
a great honour, but it is also an onus; (fn. 10) yet the law takes
care that the Sheriff do cause the members to appear ; which
argues the unwillingness of some persons to serve; and therefore there is no particular damage if the Sheriff return them
This case being most properly examinable in this honourable House, I shall pray, that the whole business upon the
merit, be heard here.
Mr. Wentworth, (for Strowde.) I shall show this case is
proper for this House. It concerns, as Lord Coke (on Littleton) says, "the very being and heart-strings of Parliament."
It is a good ground for a man to judge that an action ought
not to lie, where it has never been brought. Thence I may
conclude stronger, that no action since the Conquest, 500
years since, was ever brought; so that this cannot properly
I shall therefore humbly move that the whole business may
be heard here, and that it may not be transmitted to the
Common Fleas. (fn. 11)
Mr. Turner. We are all full of the business; I hope we
shall all be of one mind in it.
If you please, to appoint another day, and adjourn now.
Major Burton. We sit not here to hear causes at the bar.
Let it be sent back again to the judges. Why do they trouble us with it ?
Sir Henry Fane. We cannot spend our time better
than in asserting the liberty of the subject. I am sure it was
better employed in thus bounding him, (fn. 12) than in giving him
such an unlimited power. Yet I move that it be adjourned
till another day, for a final determination of the business.
Resolved, that this day sevennight be appointed for the determining of this cause between Mr. Neville and Mr.
Sir George Booth and Sir Henry Pane, and others, moved
that none that were accountable, or were farmers of any
tithes, should be of the Committee for maintenance of ministers in Wales. (Query if Colonel Freeman be not one.)
The debate held a long time about wording the question;
but at last it was ordered ut supra, or to that purpose. (fn. 13)
Mr. Onslow. I move, that before you proceed to bound
the other House, you first bound the superior.
Sir Arthur Haslerigge (and others). It was agreed that a
great deal of time was spent about precedency of those debates, and it was resolved that the other House be first proceeded upon. I therefore would not have us go back again,
but proceed upon the debate adjourned. I move that it be
taken up on Monday morning, and nought to intervene.
Resolved accordingly. (fn. 14)
Upon information given to the House, that certain articles
were ready to be presented to the House, concerning some
discourses had, and words spoken, by Mr. Neville, one of the
members of this House, (fn. 15)
Resolved, that Tuesday next a sevennight, be appointed
to receive and read the articles informed of, to be now ready
to be presented concerning any discourse had, or words supposed to have been spoken, by Mr. Henry Neville, one of the
members of this House.
Resolved, that the Lord Viscount Falkland (fn. 16) shall have
leave to go into the country for ten days.
The House did adjourn till Monday morning, and rose at
The sub-Committee for preparing of a Bill for ejecting of
scandalous ministers, sat in the Inner Court of Wards, and
proceeded in parts upon the Bill.
The Committee of Privileges sat in the Star Chamber.
Serjeant Waller in the chair.
Mr. Stone, Colonel Clark, and I, moved for Cousin John
Blakiston's Petition to be read, touching the undue return of
It was ordered to be heard on Tuesday come month.
Ordered, that the business of Cheshire be put off for a
Serjeant Waller moved it, inter Bradshaw and Brookes.
Captain Whalley moved that the business of Radnor might
have a certainty assigned as to the disability of the election,
which was ordered accordingly.
The Committee adjourned to the House, where was heard
at the bar, by counsel on both sides, the business of Malton.
Mr. Alien was counsel for Mr. Howard and Mr. Marwood; Mr. Green and Mr. Winstanly, for Major-general
Lilburne and Mr. Robinson. (fn. 17)
The Commonwealth party strove mainly to make all
things right on their side, but it would not be. At last it
came to the question. They had but sixteen, and the other
at least twenty-six. The debate held till nine.
It was resolved and determined by the poll, that Old Malton has a right to join with New Malton in the election and
return of burgesses to sit and serve in Parliament for Malton.
Resolved, that Mr. Howard and Mr. Marwood are duly
Resolved, that the indenture whereby Major-general Lilburne and Mr. Luke Robinson are returned ought to be
withdrawn, and taken off the file, and that this be reported
to the House.
Mr. Finch was present all the time as a by-stander, being,
it seems, unawares, retained on both sides; and so the parties
withdrew their fees, and he stood neuter.
Mr. Monerell and other lawyers were there, and Cousin
John Blakiston, all as by-standers.
The case was well argued on both sides. Mr. Robinson's
and Mr. Lilburne's party intend to move to have it recommitted, but the case is clear enough, in my opinion.