Tuesday, April 12, 1659.
Resolved, that Mr. Leigh, one of the members of this
House, have leave to go into the country for ten days, notwithstanding the order for the call of the House.
Resolved, that Mr. Margetts, and every of the members of
this House that serve for Scotland, or any of the counties or
boroughs in Scotland, be added to the Committee for the
affairs of Scotland.
I found them in a debate upon a report from the Committee of Grievances, touching Major-general Boteler. (fn. 1)
Captain Baynes, Mr. Hobart, Mr. Charlton, and others,
moved that he be disabled both from civil and military offices.
Sir George Booth. I move that he be put out of the commission of the peace, and would refer it to his Highness, to
put him out of the military list.
Colonel White. I move that he not only be put out of civil and military offices, but also that a charge be drawn up
against him as far as the nature of his offence will bear.
The offence of Lord Strafford was not so high. For him
in that insolent manner to tell you, in this House, that he
would not dispute whatever the Chief Magistrate ordered him
to do. He had acted highly in the point of decimation, (fn. 2)
and had indemnity for it through great mercy. To offend
again is an abuse of your tenderness to him.
Major-general Kelsey laboured to wash him; and said it
was a reflection upon his Highness that is gone, who had a
great influence upon this gentleman.
Mr. Hewley, Colonel Bennet, and others, moved that he
be only put out of the commission of the peace.
Mr. Annesley. Sentences in former times, against offences
of this nature have been much higher. He that has denied
to be bounded, is not fit to be trusted with the execution of
any law. The least you can do is to put a mark upon him, to
deter others. Make this person incapable of doing any more
mischief. Put him out of the commission of the peace, and
desire his Highness to put him out of military power.
Mr. Stephens. These men bring a scandal upon your
army. They are, generally, no such men. Examples confirm laws, pæna ad paucos, ut metus ad omnia.
Mr. Scot. I find by what I have heard upon this debate,
and what will come in against him as high a charge preferred, and punishment proposed, as that of Lord Strafford.
I am not for so high a punishment. I shall say nothing of
the Act of Indemnity, but only this. They that would not
observe an Act of Oblivion, deserve not an Act of Indemnity.
I would have him brought to the bar as a delinquent. See,
if he will own your authority, and what he will say for himself. It may be, you will proceed to fine or imprisonment;
and, in the meantime, make him incapable of bearing either
civil or military office.
This was not done, flagrante bello. The arguments for
him are as much as to say, "We must be ruled by the army;" and I am against that.
Sir Anthony Morgan laboured to wash him.
A soldier, by the martial law, is not to dispute the orders
of his superior officers. I declare myself against the Majorgenerals, and arbitrary power. I hope never to see such
things done again. We must distinguish of times. Nothing
done since 42 is questioned. I would have no retrospect,
but look forward.
Mr. Bodurda. Those that heard me last Parliament, (fn. 4)
will say I am no friend to arbitrary government. But, if you
admit this for a doctrine, that you will not distinguish of
times, I know not where it will end. I would have this laid
Mr. Thomas. Bear your highest testimony that may be,
against this person.
Mr. Gewen. There is miserecordia puniens. I would have
you, at this time, assert your liberties, by bearing testimony
against this invasion.
Mr. Godfrey. I move that he be disabled both from civil
and military power.
Colonel Fothergill. Hear him, before you censure him.
Lord Falkland. I hear much that Cavaliers are in town,
I wish there be not Cavaliers amongst us, (fn. 5) that strive to make
our friends Cavaliers. This gentleman robbed me, and keeps
my goods to this day. His actions are generally, all over
Northamptonshire, cried out against. I desire you would put
Resolved, that this House doth agree with the Committee,
that the entry and detainer of the lands and goods, by force,
and rescuing the goods from the sheriff, and hindering execution, and taking the goods which were distrained, and seizing
the money from Tarry, and imprisonment of his person, were
unjust and illegal: and that the said force still continued by
Major-general Boteler, upon the possession of the said lands
and stock be removed; and the money and stock, with the
increase and proceeds thereof, restored and delivered to the
persons from whom they were taken.
The question being propounded, that the Lords Keepers of
the great seal do put Major-general Boteler out of the commission of the peace.
The question was put, that this question be now put, and it
passed with the affirmative.
And the main question being put, it was
Resolved, accordingly, with a few negatives.
The question to disable him from military power was going
to be put.
Colonel Whetham and Mr. Steward. It is his livelihood.
Therefore hear him before you pass this sentence upon him.
Colonel West. I move that the command of the County
troop be taken from him.
Dr. Clarges, Colonel Fothergill, and Mr. Ditton, moved
that he be heard before proceeding to sentence him.
The question was propounded, that Major-general Boteler
be declared incapable of employment in any office, either civil
or military, in this Commonwealth.
Colonel White. He is now said to have offended in a military capacity, but the military capacity has committed a rape
upon the civil.
Mr. Secretary. I think the gentleman to be a man of
worth, and having this severe sentence to be put upon him, I
could not but speak my thoughts. To disable him from all
employment is the highest, next to life, and you do this unheard.
I understand it is for executing his Highness's commands;
through zeal for your safety. What he did was upon occasion of an insurrection, to be in this town and several parts of
the nation. There was one Manley, a person greatly engaged
in it. He fled, and is now in Charles Stuart's court. He is
either actually outlawed, or will be, this term, for treason.
His estate was secured, that he being run away, his estate
might not run after him. Major-general Boteler got no
profit by it. He has served you faithfully and honestly and
valiantly. I desire that he may be heard before you pass
this severe sentence upon him.
Sir George Booth. He has been heard at your Grand
Committee, and did justify himself, (fn. 6) and said, "he had done
short of his duty, and should do it, if it were to do, again.
Mr. Drake. His great fault is going against the law. It
is a great fault: but you must prosecute him according to
law. Never was any sentenced without hearing.
Mr. Stephens. I am not against hearing him; but would
have him come here as a delinquent. Consider what is before
Sir William Wheeler. You have executed part of the punishment, in putting him out of the Commission of the Peace,
and now you will go and hear him. If you will hear him,
hear him upon the whole, and revoke that part of your sentence which is disgrace.
Sir Henry Vane. I understand you have declared the act
illegal and unjust. Before the Committee he justified himself in it, and said, "he was ready to do it, if it were to do
This vote of yours must be carried to the other House
before it can take effect. There he must be heard. Your
judgment is not conclusive: so that you may proceed to your
Mr. Attorney General. You have carried up an impeachment to the other House; but never a judgment. This is a
judgment. If they differ in the judgment, the man escapes.
As to putting him out of the commission of the peace, the
Commissioners of the Seal may do it of themselves; but to go
and bury him alive, by passing this severe sentence upon him,
is strange. Send his charge up to the other House in a
formal way, and let him there have his trial, and then it is
ripe for your judgment, as high a punishment as any, save
Mr. Charlton. The evidence is plain. His offence was
committed in his military power, he asserted this he would
do, and never dispute it. If this be not the highest offence
that can be, I know not what is. He said, "he would never
dispute the single person's authority."
Nor is this the highest punishment on this side death.
Sending one to Jamaica or Barbadoes, (fn. 7) is much more. You are ripe for the other part of your judgment, and you cannot
avoid it, unless you deny your own liberties.
Mr. Jenkinson. I move that the first question be put, to
send a Committee to his Highness, to acquaint him with your
vote, and desire that he be put out of the Army.
Mr. Annesley (wheeling about (fn. 8) again). I move that his
Highness be sent to, by a Committee, to acquaint him with
your vote, and refer the military part to him, and, if you
please, before further sentence, to hear Major-general Boteler
at the bar.
Mr. Attorney-general. This is the first precedent. Let
him be heard at your bar, and call witnesses upon oath against
him, and then it is ripe for your judgment.
Colonel Birch. I move that he be heard before judgment.
Colonel Terrill. He confessed and justified his offence.
What need of proof upon oath.
Mr. Goodrick. His confession is no more than if he had
confessed it before a justice of peace. The other House will
claim a share in this with you. Let Mr. Attorney-general
draw up an impeachment against him, and try him legally
Mr. Scot. Though I love my life so well, yet I had rather
be hanged by the other House, than impeached by you. You
have voted his proceeding unjust and illegal. Will you not
make your judgment adequate to his crime? You have not
yet declared where the militia shall be; so I would have you
only declare him incapable of civil and military power.
Sir Henry Vane. You must do this in a judicial way. It
is not out of your power yet, how far you will have an oath;
or what part of the judicial power you will have. You may
declare that he shall not continue. That is your judgment,
and there let it lie, till you can put it in effect.
Mr. Secretary. I wish we were upon a foundation of law.
This arbitrary act is not the first that has been done; nor the
first that you have passed by. The gentleman. Mr. Scot,
told you, some days since, he was arrested for 30,000l. for imprisoning of a person. I would hear how he was brought off
that action. (fn. 9)
It is without precedent, that, upon a report from a Committee, such judgment should be given in this House, without hearing the parties, or witnesses, in the House. Formerly, when a charge came here against any man, an impeachment was drawn up, and sent to the other House, and
was there proceeded upon, as formally as if at the Upper
Bench, or other Court.
Lieutenant-general Ludlow. That honourable person said
much of this before. (fn. 10) It is every man's duty to attend the
Grand Committee. There needs no proof. It is justified;
and that he did not so much as he might have done. If not
fit for civil, he is not fit for military employment. It is in
your power yet, to put him out of your list. I would have
you proceed to the other part of your sentence. He seemed
to show no reluctancy.
Colonel Allured seconded it.
Mr. Hewley. He did carry himself insolently enough at
the bar. He said, indeed, he would never dispute the command of his general, be it legal or not.
Insurrections are the arrows that fly by night; and if
things be not done to prevent them,— (fn. 11) . We must consider of times and seasons for safety.
It is aggravated, (fn. 12) that he sinned against mercy or pardon.
He converted none of it to his own use. He said, if he had
refused, he might have been hanged.
Omnes fuimus peccatores. I will never justify any such
act. We have punished him in what he offended, in the civil
power, but to disable him from all employment, I had rather
be out of my life.
My motion is, that it be left to his Highness, to do what
he pleases in it.
Mr. Speaker. It has not been usual to sentence any person, till you have heard him at your bar. In a case of a
Sheriff, upon an undue return, you call him to your bar, and
there hear him, and sentence him.
Sir Walter Earle. I would rather have him proceeded
against, by way of impeachment. Keep yourselves in a Parliamentary order as much as you can. You ought, by course
of Parliament, first to hear him at the bar.
Mr. Boscawen. I am for respiting it, till your list be
brought in. I am informed of higher matters against him.
Take all together.
Mr. Lechmere. I would not have a day's debate lost;
but, now you are upon it, declare in what way you will certainly proceed against delinquents.
The constitution of both Houses is wholly new; therefore,
refer it to a Committee, to consider of some way how to proceed against delinquents, that you may have some fruits of
Mr. Goodrick. I second it, and that this Committee consider of some way how to proceed against this person.
Colonel White. I move, that a general motion thrust not
out this particular. I would therefore, have a Committee to
inquire after all this gentleman's crimes, and to draw up an impeachment against him. All these things are but discourses.
Sir Henry Vane seconded it.
Sir Walter Earle. This is no formal charge, but a narrative of a crime.
(He was called to look to the Chair, and held it an ancient
order, that they set their foot upon the boards, and look with
their faces towards the bar, that all might hear.)
I would have the charge brought in formally, according to
the rules of Parliament.
Mr. Baldwin. I would not have this debate lose its fruits.
I would therefore have a Committee appointed to draw up an
impeachment, and to consider of a way, how to transfer it to
the other House, and how to proceed further in it.
Resolved, that a Committee be appointed to draw up an
impeachment against Major-general Boteler; and to consider
of a course how to proceed, judicially, against him, and
against other delinquents, and to report their opinion thereupon to the House. (fn. 13)
The Committee was appointed to meet in the Exchequer
Chamber, to-morrow afternoon, at two of the clock; and
have power to send for parties, witnesses, papers, and records.
Some of the Farmers of the Excise, attending without,
were, in pursuance of the order made yesterday, called in.
After they had been heard, severally, at the bar, and their
reasons and excuses offered by them respectively, to the
House, for their non-paying of the several debts charged
upon them; by the command of the House they withdrew.
Resolved, that the farmers of the excise and inland commodities, who attended the House this day, do attend the House
again to-morrow morning, and that the debate upon this business be adjourned till to-morrow morning, and then resumed, and that nothing else do then intervene.