The Diary of Thomas Burton
26 February 1658-9

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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 February 1658-9', Diary of Thomas Burton esq, volume 3: January - March 1659 (1828), pp. 494-502. URL: http://british-history.ac.uk/report.aspx?compid=36917 Date accessed: 02 October 2014.


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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 Peace.

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 with it.

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 Tower, afterwards.

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 was illegal.

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. damages.)

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 not.

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 be brought.

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. Strowde.

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 one.

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 Captain Lilburne.

It was ordered to be heard on Tuesday come month.

Ordered, that the business of Cheshire be put off for a month.

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 returned.

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.

Footnotes

1 See supra, p. 449.
2 "The Lieutenant of the Tower, Feb. 3, 1657, received a letter from the late Lord Protector, early in the morning, directing him to apprehend Mr. John Portman, amongst others, forthwith. The same day, in the afternoon, a warrant was sent. The same night, or shortly after, Mr. Portman was taken by a lieutenant and about six soldiers, under the command, and by the order and direction of the Lieutenant of the Tower; and hath ever since then remained a prisoner there, without any proceedings had against him." Journals. The letter, "being only from the Usurper Oliver," was thus: "Sir, I desire you to seize Major-general Harrison, Mr. Carew, Mr. Portman, &c. Do it speedily, and you shall have a warrant after you have done." Brief Narrative, p. 342. See supra, p. 448.
3 Clerk of the Council.
4 See supra, p. 494.
5 In 1627, in the case of Sir John Heveningham, and others who were imprisoned for refusing loan-money, "Sir Edward Coke" according to Rushworth, "said: The question is, whether a freeman can be imprisoned by the King, without setting down the cause of it? If he may, it follows, I shall have an estate of inheritance, or for life, or years, in my lands; or property in my goods; and I shall be a tenant at will for my liberty." (See supra, p. 121, ad fin.) The Commons "resolved upon the question, nemine contradicente, "1. That no Freeman ought to be detained, or kept in prison, or otherwise restrained, by the command of the King, or the Privy Council, or any other, unless some cause of the commitment, detainer, or restraint, to expressed, for which by law he ought to he committed, detained, or restrained. "2. That the writ of Habeas Corpus may not be denied, but ought to be granted to every man that is committed or detained in prison, or otherwise restrained, though it be by the command of the King, the Privy Council, or any other, he praying the same. "3. That if any freeman be committed or detained in prison, or otherwise restrained by the command of the King, the Privy Council; or any other, no cause of such commitment, detainer, or restraint being expressed, for which he ought by law so be committed, detained, or restrained; and the same be returned upon a Habeas Corpus, granted for the said party, then he ought to be delivered or bailed." Hist. Col. (1703,) 1. 325. See Parl. Hist. (1763,) vii. 377. This contention with the Crown, for the liberty of the subject, an avant-courier of the civil war, produced the next year (1628) the ill-observed royal sanction to the Petition of Right. See supra, p. 171, note*
6 "Sir Henry Vane," supra, p. 495.
7 "Resolved, that Mr. Speaker do issue his warrant, under his hand, to the Lieutenant of the Tower, for the discharge of Mr. Portman from his imprisonment accordingly." Journals.
8 See supra, pp. 51, 346.
9 See supra, p. 425, note. "Mr. Heneage Finch and Mr. Windham, of Counsel with the plaintiff, and Mr. Green and Mr. Wentworth, of Counsel with the defendant." Journals.
10 For which the members used to receive a salary. Lord Coke says, "the fee for the knight of any county is four shillings per diem, and every citizen or burgess is to have two shillings per diem." (4 Inst. 46.) Lea Parliamentaria, (1690,) p. 124.
11 Numerous cases were cited on each side, but the report is too imperfect to be understood.
12 Probably the Sheriff.
13 "Resolved, that no members of this House, that are of the Committee for North Wales and South Wales, and are, or have been, accountable for any of the revenues of the Church, within North Wales or South Wales, or the county of Monmouth; or that are, or have been farmers thereof, shall have any vote at the said Committee; and that all others that will come shall have votes." Journals.
14 "That the debate concerning the bounds and powers of another House, be taken into consideration on Monday morning next, the first business; and that nothing else do then intervene." Journals.
15 See supra, pp. 296–305.
16 See supra, pp. 23, 96, notes.
17 This zealous republican Mr. Robinson, on the now approaching restoration of the Long Parliament, of which he was a member, was joined with Mr. Scot on a mission to Monk, to confirm his professed regard to the Commonwealth. Yet see Luke Robinson, on the Expectation of Charles Stuart, in 1660, vol. i. p. 263, note.