The Diary of Thomas Burton
12 April 1659

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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: 12 April 1659', Diary of Thomas Burton esq, volume 4: March - April 1659 (1828), pp. 403-412. URL: http://british-history.ac.uk/report.aspx?compid=36954 Date accessed: 20 September 2014.


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Tuesday, April 12, 1659.

Prayers.

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 aside.

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 the question.

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 you.

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 again."

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 other question.

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 death.

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 here.

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 your debate.

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.

Footnotes

1 "Colonel Terrill reported the state of the case of Dame Mary Hatton, and others, executors of Sir Thomas Hatton, Knight and Baronet, deceased; of Samuel Dorman, Citizen and Merchant Taylor, of London; and of John Tarry, servant to Lawrence Manley, late of Holdenby, in the county of Northampton, deceased; upon their several petitions exhibited unto the said Committee, and examined by them; together with their opinion upon the same. "The Report brought in from the Committee was read; and was as followeth, viz. "Sir Thomas Hatton, being possessor of a lease for years yet enduring, of the demesnes of the manor of Holdenby in the county of Northampton, at the rent of 180l. 15s. 10d. per annum, by demise of the late Queen, did let part thereof to Lawrence Manley, for years not yet expired, for the rent of 264l. per annum; whereof 201l. being in arrears, Anno 1657, Sir Thomas obtained a judgment against Robert Manley, executor of Lawrence; whose sheep were taken in execution by the Sheriff. "At the same time of that execution, there was a year's rent more due, by Robert Manley; for non-payment whereof a re-entry was made by the lady, and others, executors in trust to Sir Thomas Hatton, for the benefit of his children. And the cattle that were upon the land were distrained, Dommaye-faisant.* "John Tarry, shepherd to Lawrence Manley, who having three sons, viz. Lawrence, John, and the said Robert: which Robert, as was alleged, was executor in trust for John, the son, and others, legatees and creditors. This shepherd was sent by Lawrence and John, the sons, to the market, to sell 150 of the stock; which he sold for 137l. "Samuel Dorman being bound as surety for Robert Manley, in 1,100l., this Robert Manley assigns the said lease to Dorman; and makes him a bill of sale of the goods and stock upon the ground; and Dorman was in possession. "Robert Manley, about April last, becomes a delinquent and flies. Major-general Boteler, within two days after that Robert Manley was fled, causeth divers soldiers under his command, to enter upon the land and all the cattle upon the ground; resists the Sheriff from doing execution; turns Sir Thomas Hatton out of possession, and seizes the cattle which they had distrained, and were in the custody of the laws; imprisons Tarry, and detains him four days in custody, till he confesses where the money was he sold the sheep for; and Cornet Tibbutt, agreed with the said Tarry, that it should be brought and left with Captain Baynes; which when he had brought 126l. thereof, accordingly, the said Cornet Tibbutt, and others of his soldiers, took it away by force out of the said Captain Baynes's house. All which proceedings the said Major-general Boteler justified before the Committee, by colour of his late Highness's letter commanding him so to do." MS. and Journals.
2 See vol. i. p. 235, note.
3 "A term used, when a stranger's beasts are in another man's ground, and feed there, without a license." Dict. Anglo-Brit.
4 See vol. iii. p. 136, note*.
5 See infra, and vol. iii. p. 25, note.
6 See supra, p. 404, ad fin.
7 See supra, p. 255. The following account is from one of the residents for Charles Stuart, at London, though not, apparently, in the Court of the Protector:— "Mr. Bever to the Lord Chancellor Hyde. April 1, 1659. "The House is now upon a petition delivered to them from 50 gentlemen that were sold for slaves, to the Barbadoes, by one North, that belonged to his late Highness, and the Secretary Thurloe is accused for having a hand in it; Whereupon, Mr. Secretary said, [supra, p. 260, 261,] he had not thought to have lived to this day, to see such a thing as this, brought before a Parliament, that was so justly and legally done by lawful authority; and that, for reasons of state, they must find 200 men who, they had notice, were come over. "Sir Henry Vane made reply, [See supra, p. 262,] that he must use his own words, that he did not think to have lived to have seen the day that free-born Englishmen, by their own countrymen should be sold for slaves, by such an arbitrary government. "Mr. Secretary presses what he can, to possess the House that there is a plot in hand; and therefore, he would have the Parliament set out an act of banishment, but as yet. it is refused; and further, he relates, that whilst the Cavaliers are petitioning for redress to the House, they are plotting to destroy both his Highness and them." See "Clarendon State Papers," (1786,) iii. 447, 448.
8 Annesley, Booth, Ashley Cooper, Maynard, and the other waitingservants of Charles Stuart, concealing their worthy master's livery under the specious garb of anti-royalists; while they were now earning their posts and peerages, must, have been often "wheeling about," as "existing circumstances" would direct their policy.
9 "The Council fetched him off." MS.
10 See supra, p. 407.
11 Blank in MS.
12 Alleged in aggravation.
13 "Mordaunt to Hyde, April 14, 1659. Butler [Boteler] the Mayorgeneral, is in great danger, for all Thurloe's power to defend him." See "Clarendon State Papers," iii. 453, 434.