The Diary of Thomas Burton: 17 December 1656

Wednesday, December 17, 1656.

Per Sir William Strickland. A Bill for Mr. Acklam to sell his lands, &c. Read the second time, and committed.

A Bill for the provision and maintenance of the Ministers of Northampton. Read the second time, and committed.

Mr. Hervey desired it might be committed to fill up the blanks.

Mr. Robinson excepts—

1. Against the words " St. Sepulchre's," &c. in the Bill.

2. Against the laying the Assessments upon land only, which, in parish taxes, was never done before.

3. To charge the landlord with half the tithes.

4. That there should be a standing treasurer. Why so ? If you intend no more than the maintenance for a minister, why not by the Churchwardens, &c. ?

5. Why, if distress wanting, it should be so that the persons should be imprisoned ?

Alderman Foot. You put as great a charge upon the landlords that live one-hundred miles off, as you do upon the inhabitants that have the benefit of it.

Major-General Kelsey. This charge is by the desire of the inhabitants, and why should we scruple to condescend to their consent?

Major General Packer. It ought to have appeared to the House, by the Petition of the inhabitants, that it is their desire.

Mr. Hervey. I can affirm it is not only the general, but the particular desire of the inhabitants.

Mr. Bodurda. The ministers had never so large a maintenance in England as they have at this day. They have 20,000l. per annum of the Dean and Chapter lands, besides tithes of delinquents; so there is no need of tasking the people anew. I would have the Bill rejected.

Sir William Strickland. Notwithstanding that allowance, I know many that have not 20l., not 5l. per annum. If there be scandalous maintenance, there must be scandalous ministers. How can we expect the lamp should burn without oil. We honour God by honouring his messengers. I desire it may be committed.

Mr. Downing. There is a general order of the House, that any member may bring in a Bill for the maintenance of ministers.

Colonel Mathews and Mr. Bampfield. I hope nobody will say it is a business of a dangerous consequence to settle maintenance for ministers. I wish we knew what were become of all the monies that Mr. Bodurda speaks of.

Major-General Boteler. I wish that Northampton (fn. 1) and Yarmouth had some of the monies he speaks of, and save this Bill.

Major-General Disbrowe, after the Committee was named, offered,

1. That it might be certainly known what the ministers should have; it remaining in the Treasury to be disposed by word, otherwise.

2. That it might be inquired how the tithe rents of delinquents are disposed of.

Sir William Strickland. Many delinquents have compounded for their tithe rents. I desire there may be an account given of them by the trustees.

Major-General Kelsey. That the trustees may account for all rents that come in to them for the augmentation of the maintenance of ministers.

Mr. Robinson and Mr. Bond proposed that an account might be taken of what is received by the several ministers.

Resolved, that this Bill be referred to a Committee, in the Duchy Chamber.

Resolved, that the trustees for the maintenance of ministers do bring an accounfof what monies are come to their hands out of the augmentation, &c.

Mr. Speaker proposed to read the Bill for Navigation. (fn. 2)

Resolved, that this Bill be read to-morrow.

Captain Baynes proposed that the Bill for Broad Cloths, which should have been read to-day, may be read to-morrow.

Colonel Shapcot. To the order of the day, viz. Nayler's business.

Mr. Speaker. What shall I say to him ? Shall I ask him any questions ? or, if he speak, what shall I answer? Shall I barely pronounce the sentence, and make no preamble to it? I can do nothing but by your directions. I pray you inform me.

Lord Chief Justice. It hath been the usual practice for a man that is committed only by vote or order of Parliament, to be discharged by habeas corpus, when the Parliament is dissolved, unless you proceed upon the judicial way, to judgment as a court of judicature. I only stand up to inform you.

Mr. Bond. In the case of Biddle, who was committed last Parliament, (fn. 3) Lord Rolle (fn. 4) would have bailed him. I wished him not. He said he was bound by his oath to do it, because it was only an order and not a judgment. I desire you would enter it as a judgment, otherwise the Lord Chief Justice must discharge him by habeas corpus.

Colonel Shapcot. This case is new, and it will remain as a precedent. This noble lord was not at the debate; but I think what you have done is as by a court of judicature, and it is a judgment in itself.

Major Aston. It is true what that lord says. A habeas corpus will release him when the Parliament is dissolved. I would have you put it to the vote, whether it shall be judgment or no.

The Master of the Rolls. It is truly offered to you, that a habeas corpus lies in this case; as well offered in the case of Biddle, which was a higher blasphemy than this. I would have you add to your votes, upon the whole matter, that the Parliament doth adjudge this sentence, and so you tie up the hands of the inferior courts. It is a business of a very high consequence.

Lord Whitlock. I agree with what is offered to you, and the word adjudged must be in your entry. Otherwise, the inferior courts will, and must, release him by habeas corpus. You may enter it thus:—Whereas, James Nayler is guilty of such and such things; the Parliament do adjudge that he shall suffer thus and thus.

Mr. Robinson. I could willingly have gone less than the punishment, as to boring and branding, but I cannot part with any thing of the privilege of Parliament. I am sorry to hear that an inferior court should think to question any thing which Parliament does, after such a serious debate. It has been eleven days, and shall an inferior court dissolve our judgment ? If I should live to sit in the next Parliament, I should make that judicature exemplary, that should offer to frustrate what we have done.

I think the judgment is good already; and I believe none will offer to alter it. That of Biddle's case was different. We heard and determined this business, we did not so in the other case.

Sir Thomas Wroth. I understand the judges are sworn to do according to the law, and if they grant, not a habeas corpus in this case, they are perjured.

Lord Strickland. I differ from my worthy countryman. The judges are judges of your laws, and we are beholden to them for their admonition. They ought to be encouraged for this. If they desire to do their duty, we ought not to discourage them. I would have us to make no more of resolutions and votes than they are. Let us put a difference between Acts of Parliament, and votes and resolves. I hope it is not intended that every motion in Parliament should be of equal authority with a law, that nobody should speak against it.

Mr. Fowell Some learned persons in the law should withdraw to pen the judgment, because it is to he a precedent for after ages.

Mr. Bampfield and Colonel Chadmck proposed to add the words adjudged, either before or after the vote.

Resolved, .that these words be added to the former, vote, and the Parliament hath adjudged the same accordingly.

Major-General Skippon. I would not have us contend about words, and spend eleven days more about the business. I desire the word adjudged may be added.

Sir William Strickland. In such a solemn matter, it is very fit there should be some introduction to the sentence, which may be left to your own discretion.

Lord Claypoole, Mr. Highland, and Major-General Goffe. He may be first asked if he have any more to say why sentence should not pass upon him.

Major Audley. In all the courts that ever I was in, it was always allowed to the delinquent to say what he has further to say. He never yet knew that he was to answer either for life or member. In case's of manslaughter, it is allowed. And admit he should offer any thing to his recantation or retractation. I hope no body here but desires his reformation, rather than otherwise to punish him.

Lord Chief Justice. If you proceed as a Judicatory, (as it seems you have implicitly voted it,) you must ask him what he can say why judgment ought not to be passed against him. It is so in all courts of judicature. Admit him, or the devil within him should say by what authority do you pass this judgment ? What can you say then ? Though you have the authority of the House of Lords united to you, yet they would never proceed in a. judicial way, but according to the law. I never knew them do otherwise.

This is a new case before you, and it will be a precedent.

Colonel Chadwick. It is usual in, all courts to ask the prisoner or delinquent what he can say why judgment ought not to be passed against him ?

Major-General Kelsey. This court, nor any court but must mix mercy with judgment. It may be he may recant.

None can tell what God in this time has wrought upon him. This is a new business. He has never been yet heard what he can say to it, why judgment should not be pronounced against him. You have no law for what you do.

Major-General Boteler. If it had been in the case of death, I confess I should have given him all the liberty that might be to speak for himself. But in the lesser punishment, you need not put an excuse in his mouth.

Lord Strickland. We shall be stricter than the Papists, who desire us but to renounce and we shall be pardoned. I would have us incline to mercy.

Lord Whitlock. The clerk, upon the prisoner's coming to the bar, should read the judgment, and then you ask him what he has to say for himself, &c. If he say any thing, he may withdraw, and then debate it. I remember it usual, where life is concerned in the sentence, to ask the party what he has to say, but not in lesser cases.

Mr. Nathaniel Bacon. You should consider how it stands with the honour of God, or of this House, to retract your judgment, though this man should say he repents. Have you not passed your judgment already? Remember how you sent a man yesterday to Bridewell, and never called him in to ask him what he would say.

Mr. Bodurda. I shall second that motion that he may be asked what he has to say. I have known that practice in all courts, not only in capital, but criminal cases.

Major-General Skippon. Either your judgment is good or it is bad. If bad, why do you.not recal it? I think it is good, and it had been better if it had been higher. But I hope you will not release all the corporal punishment upon his saying he repents. You will put an excuse in his mouth. Leave it to him to say what he pleases.

Colonel Hewitson. I desire it may be asked him what he has to say. This has been seconded and thirded.

Mr. Bampfield. Sixty have spoken in this business already; and by that time sixty more have spoke, you will spend time enough in it. I wonder to see such inclination to spare this person, as though his crime were so small that it may wholly go unpunished, if he say but he recants. If you bring him in and he should show obstinacy, which he may do as soon as recantation, then surely the same reason and equity will lie for those that move to aggravate his punishment upon the obstinacy, as others will move to extenuate upon recantation.

Mr. Dawning. You have intricated yourselves into another debate. I desire you to put the question, whether the question offered should be put or no.

Mr. Bond and Sir Thomas Wroth. He ought to be asked what he has to say. I am of that lord's opinion, of the. long robe, that he must be heard what he will say.

Colonel Shapcot stood up to speak, but was cried down, and a great debate whether he should speak or no, and was going to the question till Mr. Goodwin took it up.

Mr. Speaker said it was not proper for a man to press to speak (after another had stood up and said he had spoke) till the Speaker call him up; and it was also a great breach of privilege to call any man up to speak, unless he shall first stand up of himself to speak.

Mr. Goodwin. It is very unparliamentary to ask the prisoner any question. It may be, he will deny your judicature, or that you have a law, and where is your judgment then. But this will but draw a further trouble upon you. Your judgment is passed already. You are only, now, to pronounce the judgment. If I could be satisfied that he would recant, I should willingly admit, him to speak all he can.

Colonel Holland. To ask him questions, is very parliamentary and usual in such cases, in lesser, offences than this, as in Sir John Stowells case, (fn. 5) and many other cases.

Major Aston. If once you admit him to speak, you must hear him all that ever he will say, and so .hold you de die in diem. Have you not beard him already ? Do not the sessions of the peace pass their sentence upon indictments with out hearing the party speak ? Did you not so in Mr. Burton's case ? (fn. 6) I may name him; he is not here. I am not for hearing him any more.

Major-General Packer. I hope you will give this person the liberty of an Englishman to speak for himself. Haply he will not trouble you with much. I doubt he will not recant; but I would not have you shut out repentance. Hear what he will say, and then you justify yourselves both from what he shall say against your judgment, or what others shall say that you make more haste than good speed. It will be more pleasing to God, and justifiable before men.

Judge-Advocate Whalley stood up to speak to the orders of the House, and then fell into the merit of the business, but Mr. Downing took him down; yet, Major-General Whalley moved him up again.

Judge-Advocate Whalley. I hope, if this person should come and recant, you would accept it, more than all your judgments upon him; and it will answer more your ends. His reformation, I suppose, is the end of punishment. If you be satisfied in that, you need not sentence him. I desire he may be heard.

The question put, whether the question for asking him any question or no should be put, and the House divided upon it.

We that were for the question, the yeas, were 85. Sir Charles Wolseley and Colonel Philip Jones [Tellers.]

They that were against and went out, the noes, were 107. Colonel Throckmorton and Colonel Fitz James [Tellers.]

Resolved, That this question shall be put.

James Nayler called to the bar.

Mr. Speaker. Now ten or eleven days have been spent in the debating your crimes, which are heinous. You have troubled the countries up and down, and now you have troubled the Parliament. Yet, in your sentence, mercy is mixed with judgment. It is a sentence, not of death. They desire your reformation rather than destruction.

Nayler offered two or three times to speak, and to say he desired to know what his crimes were. He knew none. But the Speaker proceeded to pronounce the sentence, (fn. 7) and Nayler said, as he went out—God has given me a body; I shall willingly endure it; or, I hope I shall endure it; or, that God will, I hope, give me a spirit to endure it. I did not well hear: and said further, The Lord lay not these things to your charge. I shall pray heartily that he may not; or, I shall pray for you.

Sir John Reynolds and others said afterwards, it was hard he should not be. heard out, and he doubted some were afraid that he should recant. (fn. 8) He doubted that was not so charitable.

Mr. Bond and Mr. Bampfield. Rid your hands of them all, for they lie at your charge, and send the women into their own counties to be kept to work; and let the petition against the Quakers be read, and the whole business over.

Resolved, that the petitions be read, and the rest of the prisoners dispatched to-morrow morning, and nothing to intervene.

Resolved, that the business of Ireland be taken up on Friday.

Few Committees sat this afternoon. I was only at a private Committee in the Speaker's chamber, where Mr. Bedford had the chair. It was to enable one Mr. Stedry, and his two daughters, Elizabeth and Judith, to let leases of lands, for twenty-one years, at a rack.