The Diary of Thomas Burton: 2 February 1658-9

Wednesday, February 2, 1658–9.

Mr. Speaker took the chair at nine.

Mr. Cooper prayed.

Sir Walter Earle and Captain Hatsell moved for settling the standing Committees.

Mr. Trenchard seconded.

Dr. Clarges. No private Committee can sit while a Grand Committee sits.

Mr. Knightley. If forty be but in the House, to make a Grand Committee, other Committees may sit.

Mr. Speaker. A Committee for Grievances and Courts of Justice, are all one.

Resolved, that a Grand Committee of the whole House, do sit in the House, for Religion, oh Monday; for Grievances and Courts of Justice on Wednesday; and for Trade on Friday; weekly, in the afternoon.

Mr. Neville stood up and was going to say something of what was done yesterday; but stopped, the House being acquainted that Major Audley was at the door.

Sir Arthur Haslerigge moved, that he might not kneel, at first.

Mr. Bish moved for a little time, till his counsel came.

Major Burton moved to name the Grand Committee; but was called down.

Mr. Neville. I am glad that what you did yesterday passed with so much unanimity. I would have something go, hand in hand with it, for the liberties of the people. The two great flaws in the Government, one in the sovereign power, and another in the executive power, were the negative voice (fn. 1) and the militia. (fn. 2)

The King would not concur, which produced war; and it was determined on the people's side. I would have nothing of aspersion. It is in good hands now; so that the propositions sent to the King, in all things, will not agree. As to the propositions of the militia, about putting it in Sheriffs and Deputy-Lieutenants, I would have a Committee of able persons appointed to prepare a law, that your negative voice may not be many, without doors, (fn. 3) and the militia be entrusted in safe hands, that it may not be oppressive. I shall not bring in an Act, but offer my thoughts.

Mr. Starkey. Those things are settled by the Petition and Advice. The negative voice is of great use on either of the three co-ordinate powers. I never could find any law to the contrary. We are met for peace. By law the King had a negative voice, on whatever was debated or resolved here. We ought to keep singly to the Recognition, and not perplex what is either clear, or ought to be meddled with more seasonably. The gentleman says the militia is settled by the Petition of Right; so he has answered himself. And if it be settled, let us not dispute it over again.

Sir Arthur Haslerigge. I hoped never to have heard this motion in this place, that the militia and negative voice are not in this House. I wonder at the gentleman's modesty, that he brought not in a Bill. I brought in the Bill for the militia to be in the House, and— (fn. 4), and I was sent into Leicestershire, where we met the King, about settling the militia, and the King not condescending, we fought it out. (fn. 5)

I have a complaint to this House, which I hope in due time will be heard; my being kept out of the House, (fn. 6) who was always faithful.

A strange thing that the top stone shall be laid first. I would have this business put off till after the fast. I have met with the printed speeches. (fn. 7) If you please, I will say somewhat to them. We are in a sad case; our armies in great arrears, and great need of navies. There is a promise of accounting to us, (fn. 8) of which we have not heard yet. I went up as one of your servants, to see in what order we should be. I saw where the Lords were. I asked where the Commons should be, and they said, at the bar; where were servants and footmen; and to stand amongst them we must have begun to rub my Lord. I believe many members did forbear to go up. (fn. 9) I would have the speeches read, if you please. (fn. 10)

Mr. Trevor. I wonder to hear this motion seconded by the worthy gentleman who moved for nothing to be done till all Privy and standing Committees w ere settled. He says Providence has so ordered it, that the case of the militia and negative voice, are settled by the law, if any law be. It is said, it was the beginning of the quarrel between the King and the Parliament. I hope it shall not be the quarrel between his Highness and the Parliament. That gentleman had it in his choice that we might have stood bare to him. (fn. 11)

Sir William Wheeler. I move for a Committee to prepare the Bills under consideration for the people; as the law for marriages and probate of wills. (fn. 12)

Major Audley was called in; and standing at the bar, (fn. 13)

Mr. Speaker opened the information against him, and said the House was willing to hear him say for himself, and had brought him to the bar, not upon his knees. (fn. 14)

Major Audley. I have not been used to speak for myself, either elsewhere or in the House. I should be sorry to give offence by speaking. I have stated the matter of fact in a Petition, if it please the honourable House to hear it.

He was commanded to withdraw.

Mr. Knightley. It is not parliamentary to receive a Petition, before you hear what he can say.

Mr. Trenchard seconded it.

Mr. Scot. Take his answer in scriptis; because he may be afraid of the intemperance of his language: He may confess and avoid, confess and justify, or confess and mitigate.

Sir Arthur Haslerigge. I wonder to hear that motion from a gentleman that has sat so long in this House. The gentleman ought to confess or deny. If he confess those words, they will scarcely be avoided. This gentleman has had more favour than stands to any upon your books.

Sir Walter Earle. I never knew the like, that a delinquent should bring a framed discourse in writing. This will be an ill precedent.

Mr. Scawen. I never knew a delinquent come to the bar, and not kneel.

Major Audley was called in again, and required to give a positive answer, guilty or not guilty ?

Major Audley. I offered my defence in writing lest by my tongue I should offend while defending myself. I deny the charge in the main of it. It arose upon an election. I was duly elected, and being informed there was a double return, I applied myself to a gentleman to present my Petition. My passion and natural temper being worse than other men's, I said I would lodge a Petition at the cross bar against the election. I desired him to withdraw and not let people be witnesses of our follies.

He said I was not a gentleman, I had no arms: (fn. 15) I was a turncoat. So that I was provoked to those languages. But the challenge I deny. I had no intent. I profess I knew him no member of Parliament; I thought there had been a double return. I had rather acknowledge myself guilty as much as I am, than reflect upon him that is your member.

To the other gentleman I said not a word; (but asked him how long a lease he had of sitting here) meaning only to prosecute. I acknowledge myself accidentally, not professedly, an offender to this House. I have faithfully served you these eighteen years, and was never guilty of being a turncoat. That sticks with me.

Mr. Knightley. The gentleman has given you a very ingenuous answer, and shows himself an able person. I would have the gentleman that informed, produce his witnesses.

Mr. Lechmere. I observed much of relenting. He asked pardon of the gentleman, as a gentleman, as a member of this House; or of the House, in public. As the pardon is asked publicly, you should forgive publicly. He is a perfect man that can bridle his tongue, and he that speaks much must sometimes repent it.

Mr. Manley stood up.

Sir Arthur Haslerigge, underhand, said, 'Another lawyer.'

Mr. Lechmere took exception to this, and said, 'It is a reflection.'

Sir Arthur Haslerigge. I spoke it for no reflection; but out of a desire to hear any of the Long Robe speak, which I would at any time sit down to hear.

Mr. Manley. Major Audley was a civil gentleman when he quartered at my house. His confession was ingenuous at the bar. If you please, pass by the business.

Sir Arthur Haslerigge. The complaint is exceeding worthy your hearing. Many gallant young gentlemen, I see, in this House, who may be here when I am gone. I would not have the blood stick on your chair. I think the acknowledgment is not sufficient. I would fain read the proverb well. "Not right pity, spoils the city." If one member of this House should challenge another, I hope he would be turned out and sent to the Tower.

A competition about an election ! It is said the information is not well proved. A challenge may be whispered. The law favours passion, as in the case of manslaughter; but the manslayer goes not without punishment. In the case of Mr. Holford, (fn. 16) he kneeled at the bar, for one word, and was sent to the Tower, and you can do no less than send this gentleman to the Tower. I have no end but your own honour, and to prevent the fall of some young gentlemen in this House. If the challenge were true, I should disable him for sitting in this House.

Sir William D'Oyley. The charge is not made out. I would have it referred to a Committee.

Mr. Steward. His confession did rather imply an ingenuity than a guilt. His calling him aside was not to challenge; but lest their follies should be conspicuous. I would have it laid aside.

Mr. Bulkeley. You cannot so easily lay it aside. This person has put his hand to the plough and drawn it back. He was in holy orders. The question is, whether you will believe a member, or a stranger. I shall put a very great difference between the testimony of the one; and the other, that has forsaken his profession. I heard a gentleman of this House say he heard him say, "Let us step to the other side an hedge, and that will decide the controversy." This tends to blood. It comes regularly before you to vindicate this gentleman. He that dares do least in this way, dares do most in another way. When justice is done, I shall be as much for mercy as any man. A gentleman heard him say more.

Mr. Solicitor-General. I move that those gentlemen that spoke the last day may be heard, and their evidence.

Mr. Wharton. I was passing through the hall, and heard Major Audley say, Mr. Bish was an unworthy fellow, and that he did not challenge him, but if he would go the other side of an hedge, that would determine it.

Mr. Bish repeated the same story as before; saying, "I told him he was an uncivil man, which was all I said."

Sir John Lenthall. Wherever an injury is done to any member, it is done to the whole. I would have him as highly punished as any man that has offended in this nature. He is a man that when authority was in his hands did very much oppress the country.

Major-General Kelsey. I would have no aggravation. He is a scholar, and might at first exercise as a minister. It is not unchristian to do so. When a man finds himself unfit, it is Christian to forbear the calling, rather than to be unprofitable. I have acted in that country, and never heard him called an oppressor before.

He apprehended himself to stand in an equal capacity, and ill language did flow from both. It is an offence in its own nature, but I would have all circumstances taken in, to pass a right judgment. I would have it referred to a Committee to have the true state of the case laid before you, ere you pass judgment.

Mr. Raleigh. I would have Mr. Sturges heard, that is most concerned in the business. I never heard him said to be an oppressor of his country. He was not returned.

Mr. Sturges. I intended not to have troubled the House with it, but that a member advised me to it for the conservation of your privileges.

He repeated the same story that he did the other day, and said he would not misinform the House.

Serjeant Maynard. If any member did inform you of any thing, it was. never your use to refer it to a Committee. I would have nothing laid in his dish of what he has done, otherwise. It needs no aggravation. It is a challenge. Do justice boldly. Vindicate your privileges, lest from twenty you come to twelve.

Mr. Solicitor-General. He was in passion. He then might well forget what he said. It is clearly a challenge, and if you go no further than to send him to the Tower, you are merciful.

Mr. —. You will do him a courtesy to send him to the Tower. He has a house, and a great office there.

Mr. Knightley. I would not have him go thither, for exorbitant fees; but sent to some prison in Surrey. I would have him disabled from bearing office.

Sir Richard Temple. I shall not speak to the matter, but to the manner of his punishment. You will not think it fit to send him to any other place than the Tower. I have heard much of his ill deportment. I would have him disabled from all office, civil and military. He has forfeited his mercy by disproving his ingenuity.

Colonel Okey. I have marched with him several years, and never saw or heard any thing against him.

Mr. Hungerford. This needs no aggravation. The place is too good. You sent Sir John Stowell to the Gatehouse. I would have him sent thither. I am not of that gentleman's opinion that said he might draw back from his profession.

Mr. Starkey. The Tower is too honourable for an ordinary offender. I would have him in the Serjeant's custody, where he will appoint him; which will exercise his purse as well as his patience.

Lord Lambert. I move that the gentlemen concerned may withdraw.

Mr. Bulkeley. Those gentlemen are not before you as objects of your justice, so ought not to withdraw.

Mr. Trenchard. The gentlemen ought, in modesty, to withdraw, though there be no question upon it.

Sir William Wheeler. I would have him sent to the Gatehouse.

Captain Baynes. It is not usual for gentlemen concerned to press a business after the person have so ingenuously acknowledged. I would have his punishment put off till the question about the election be determined, lest you punish the people as well as him; and let him, in the meantime, remain in the Serjeant's custody.

Sir Arthur Haslerigge. I would have the Tower his prison, as most honourable for this House; and the second question to be, to disable him from sitting in this House; for I must ever be tender of your privileges.

Mr. Turner. You have testimony from three witnesses, where one is sufficient. Nay, pro bono publico, a man's self may be witness in an indictment where no damages are given. There is misericardia princeps. It is not justice to yourself. You are the great conservators of the peace. I move that he be put out of the Commission of the Peace, (fn. 17) for he has apparently broken his trust.

Lord Lambert. He has done you good service. I am witness of it. It does not amount to a challenge. It is a coarse business; scurvy language; a thing in itself less ingenuous than a challenge. I would not have you exercise the utmost severity to an old servant of yours. I would have him only sent to the Tower. Sir John Stowell: he was long in arms against you.

Mr. Eyre. I desire not to add affliction to misery; but I conceive it was not improperly moved you by Mr. Turner that be be put out of the Commission of the Peace. He is a judge of challenges; and though it be not a challenge, yet it is a provocation. The true valour of fortitude consists not in passion. He may be fit for the military commission, though not for the peace.

Mr. Raleigh. This gentleman is my countryman. I never knew him do any thing on the bench unworthy. I think your punishment is great enough, without addition.

Mr. Henley. The offence is heinous. That he is a servant to the Common wealth makes his offence the greater. It is against his duty and his trust. Especially, as an officer, he ought to give the better example. Great men commit things with a hundred hands. A little star may twinkle in and out, but an eclipse of the great luminaries is more conspicuous. I would have him, at least, turned out of the Commission; and that you would be so tender of your privileges, and bear such testimony against all offenders of this kind, as to let them know they kick against the pricks.

Mr. Hungerford. Leave it to the Lords Commissioners, upon your sense, to put him out of the peace, if you please. Nemo bis punietur pro uno delicto. I think it but fit to be done; but not by you, and let the other punishment suffice.

Mr. Grove. It is little enough to put him out of the Commission of the Peace. How can he make others keep the peace that is in such a high measure a breaker of it himself?

Colonel Okey. I am loth to trouble you again on this business. I am sorry to see those reflections, that he is fitter to be a soldier than a Justice of Peace. I see it will be a crime to be an army man. Is the expense of our blood nothing ? The Long Robe are very —(but this he said underhand.)

Mr. Chaloner. The punishment is enough.

Mr. Gewen. The punishment must be proportionable to the offence, in terrorem, to hear and fear. I would have him put out of the Commission of the Peace.

Mr. Bulkeley. This seems more necessary than any other part of the punishment. There is a great difference between a sudden rash act and a pursuance of it, day after day, as Mr. Wharton said. The next morning after I heard this, I heard of some further addition. I would have him put out of the Commission for ejecting scandalous ministers. (fn. 18)

Mr. Starkey. I am against extending the punishment, till the offence be better attested than by one witness.

Mr. Goodwin. These gentlemen are my near neighbours. You have done justly in sending him to the Tower. I have known him a long time. In the Long Parliament he did you faithful service. For a slip of passion you would not punish him further.

Mr. St. Nicholas. Put the question, whether the question shall be put.

Mr. Knightley. When you send a prisoner, express the cause; lest any of us be laid by the heels and know not for what.

Mr. Bodurda. I move that the cause of his imprisonment be expressed, and the other question waved; for, if you disable him from being a Justice of Peace, you must make a previous vote that he shall not be a member.

Mr. Turner. I move the question be put for disabling him from the Commission of the Peace.

Captain Hatsell moved that the question be now put.

Mr. Speaker declared for the Noes.

Sir John Lenthall for the Yeas.

The Noes went out.

Noes 173. Mr. Goodwin and Mr. Fagg, Tellers.

Yeas 155. Sir Thomas Beaumont and Mr. Henry FitzJames, Tellers.

So the question passed in the negative.

Major Audley being called in, received his judgment on his knees at the bar; after the Speaker had made an harangue touching the plaga linguœ as well as the plaga dextræ, &c. that he should stand committed to the Tower during the pleasure of the House.

The House rose a little past twelve.

I could not attend any Committees. I question if any sat.