The Diary of Thomas Burton: 3 February 1658-9

Thursday, February 3, 1658.

I came not till prayers were done, and I found the House engaged in a debate about Colonel Overton's (fn. 1) imprisonment, upon a petition and printed paper presented at the door by his sister. Upon this, it seems Mr. St Nicholas had moved, and was seconded by Henry Neville and Sir Arthur Haslerigge; and it was strongly urged by them all, as a great breach of the liberty of the subject, so long and much fought and contended for, and so dearly purchased.

Lord Fairfax, Colonel Morley, and young Mr. Porter, came into the House, and were all sworn together.

Mr. Waller, a member for Scotland, was made Serjeant at Law, so that he could not attend the chair of the Committee of Privileges.

Sir Arthur Haslerigge moved, that Lord Chief Justice St. John waited at the door, and so took Captain Baynes down.

The Lord Chief Justice was called in, and said, in obedience to this House he had brought a transcript of the record, which was examined, as also a rule.

Mr. Reynolds called for the Report, and moved that it might be postponed till Overton's business was over.

Captain Baynes. The unhappy wars have made us neglect our liberties. I hope we shall be more tender. It may be the gentleman has deserved his imprisonment. There was no judgment against him for perpetual imprisonment.

Mr. — moved, that he being reduced to straits by his imprisonment, have part of the contribution upon the fast day; but it was rejected.

Mr. Knightley. If this gentleman be nocent, why was he sent away and not brought to trial? If innocent, the judgment is unjust to detain him.

Mr. Starkey and Mr. Fowell. The question is not ripe for your judgment, unless the gentleman had first appealed to the Courts of Justice for a habeas corpus. It does not appear that has been denied.

Mr. Reynolds. The liberty of the people ought to have festinè, remedium. This is a habeas corpus that you are about. Jersey is part of France; (fn. 2) so it is a moot point whether a habeas corpus lies. Alured was kept twelve months close prisoner, and brought to a court martial, and after that, six months kept close without receiving a letter so much as from his wife. (fn. 3)

Resolved, that the Governor of the Isle of Jersey, or whoever has the custody of Colonel Overton, do bring him to this House. (fn. 4)

Colonel Alured moved for the Commissioners of the Admiralty to send a frigate for him, for fear of pirates. He cannot come without danger.

Mr. Trevor. This is to triumph before the victory, to send a frigate for him.

Colonel Okey. When Burton and Prynne (fn. 5) were sent for, they could not pass, for pirates.

Mr. Neville. This person is a fit person for conduct, (fn. 6) and the Spaniards may take him prisoner, and make good use of him. I would have a good strong frigate.

Mr. Reynolds. This gentleman was brought from Scotland hither, and sent to Jersey in a frigate. It is a good prison.

Mr. Harrison. Burton and Prynne were wronged persons. It appears not but that this gentleman is criminal.

Sir Arthur Haslerigge. I am sorry to see this business stick. I hear it said there are others in his case.

He wagged his head; Lord Fairfax sat next him, and I suppose it was meant of the Duke of Buckingham. (fn. 7)

Colonel Cromwell took exceptions that Sir Arthur Haslerigge should so often také notice that so many young men were in this House. It was a great honour to them that they were sent by their country here.

Sir Arthur Haslerigge said, he did not name young gentlemen.

Colonel Cromwell said, he did say so; and so was the sense of the House.

Mr. Bodurda moved, that the Commissioners of the Admiralty and Navy accommodate the Governor, or whoever has custody of Mr. Robert Overton, with a frigate for the better and securer bringing of him.

Mr. Steward seconded it, and it was resolved accordingly.

Mr. Scot. I move that Colonel Gibbons, being Governor of Jersey, and here present, take notice of it.

Colonel Gibbons answered, he was in his Captain's custody, but agreed that respondet superior, he must answer for all at his peril. (fn. 8)

Mr. Knightley stood up to make a report from the Committee of Privileges, which, per the orders of the House, ought to precede.

Mr. Robert Reynolds moved to Mr. Neville's business.

Mr. Knightley went on and said, Mr. Serjeant Waller was in the chair, but being this day to take his order of Serjeant, could not attend.

The report was touching a double return for Rising, in Norfolk, wherein Mr. Fielder was returned by the Mayor.

Mr. Bodurda. From the bar all reports ought to be made. I would not have young gentlemen misled, which I hear often said.

Sir Walter Earle and Sir Arthur Haslerigge. One may report where he please. He must go down to the bar and make his three legs; (fn. 9) but if he can get so near the chair, that without handing it by another, he may deliver it to the chair.

Sir Arthur Haslerigge. It matters not whether the Mayor or Burgesses return, the Sheriff must answer for all. It is no good return, merely because it has the Mayor's seal. I would have satisfaction for the reporter, about the right.

Captain Toll. The borough of Rising is not within Norfolk, but a borough by prescription. I was present at the election. The return by the burgesses had twenty-five, the other but nine. So I am against the report.

Mr. Steward. This gentleman speaks to the merits. You are now upon the return.

Mr. Starkey. The Burgesses' return is the better return.

Sir Walter Earle. Admit the member to sit, de bene ease, and examine the merit afterwards.

Mr. Turner. A double return is where the proper officer makes a double return. This is a borough by prescription; then no head. Admit they have submitted to an incorporation, yet to have a mayor or bailiff, this does not out the right. Lord Coke says so. As to the election of Burgesses, I would have it re-committed.

Mr. Hobart. The precept was directed to the Mayor, and so it appeared to the Committee.

Mr. Bodurda and Mr. Trevor. Let not this have harder measure than the rest in such case.

Mr. Scawen. It is not parliamentary for the Clerk to read the report. Your chairman should, by word of mouth, report, and then only read the resolutions of the Committee.

Resolved, that John Fielder and Guibon Goddard are duly returned.

Resolved, that the indenture by which Robert Jermy and Guibon Goddard are returned, be withdrawn. (fn. 10)

The transcript of the record between Neville and Strowde was read. (fn. 11)

August 20, 1656. Action in the case laid. Recites the Instrument of Government, and the Indenture for return of the other parties. Trumbull (fn. 12) returned, first of the five knights of Berkshire. Damages 2000l. Damages assessed, besides costs, 500l. Costs 20s. (fn. 13) Arrest of Judgment moved, June 26, 1658. Ordered by Rule, that it be transcribed and sent to the House. Hide and Seys. (fn. 14)

Mr. Neville. I should be exceedingly sorry to trouble you with any business of my own; but the wrong is to you, and comes doubly before you, both as it is your privilege, and as recommended to you from the Judges.

I had recourse to the 23d Hen. VI., and brought an action; but withdrew it, because another kind of Parliament was provided for by that statute. I had good counsel to bring my action at Common Law. You are the true father, the child is brought to your door. The reverend (fn. 15) Judges find it a case of new impression. If you please, make an end of it now. If you turn from it, it will come before you again by writ of error.

I move for a day to be appointed for hearing counsel on both sides.

Mr. Starkey. I doubt not but you will be as tender of all men, as you will be of your members. The Sheriff is my countryman. Here is both matter-of-fact and law. I would have a day appointed to hear counsel on both sides.

Mr. Turner. A case of that weight is of first impression to you, as well as to the Judges.

There are two points.

1. Whether an action of this nature lies at Common-Law.

A declaration in the preamble of the statute, no remedy at Common Law; therefore the statute appoints a penalty.

The 2d doubt. The thing in its own nature concerns you. The matter-of-fact is clear, but the judgment is with you. I would have the debate adjourned till Saturday morning, that we may look into our books.

Mr. Reynolds. I move for this day se'nnight. None will go so hastily to a judgment.

Mr. Bernard. I move for a day after term, that counsel may attend.

Mr. Neville. If this curb, by the verdict, had not come in, it is likely you had not been here in such a free Parliament. (fn. 16)

Mr. Knightley. I move for Tuesday next.

Sir William Wheeler. A scire facias ought to go out to the defendant; but I would have you first resolve whether you will take the judgment upon you yourselves.

Mr. Pedley. This is not a privilege that now concerns you, other than for public example. This is now between party and party. I would have it postponed for a month, and the Judges to inform you of the whole matter.

Sir Arthur Haslerigge. This is no private business. The Judges think it to be a business that concerns your privileges. I would have it put this day se'nnight.

Mr. Bodurda. This is indeed a public business. I would have no counsel at the bar, which is only admitted in private business. In the case of ship-money it was said counsel was appointed, (fn. 17) but the Parliament was dissolved first, (fn. 18) ere it could be heard. I would rather hear the Judges.

Lord Lambert. This is both public and private business. I would have counsel heard on both sides, at a short day. There is a great prejudice from double returns, which Sheriffs make for fear of actions. They know not what to do in some places, and in others, there are petty designings.

Sir Walter Earle. I would have counsel to be heard in the business, but not to the jurisdiction of this Court.

Mr. Steward. This is a special action. This case never happened before, and can never happen again. The consequence cannot be to your prejudice; which way soever it go. I would have counsel heard on both sides.

Resolved, to hear counsel in this case, on both sides, this day sennight.

Sir Arthur Hoslerigge. I made you a short motion yesterday, and was put out. I find somewhat in a book. I bought, entitled his Highness's speech. (fn. 19) There is in it matter of great concernment and inconveniences, lest the misthe chief, after warning, be said to be yours, if you have notice given, and do not prevent it.

1. This Parliament was summoned upon such great, important affairs as the like was never; I believe it.

2. The reason why. We have so many enemies within and without, and if your care and wisdom be not very great, evil may come. And that lies upon you, to improve your wisdom, to secure yourselves against such, expressed to be implacable enemies. The means are left to yourselves.

3. You have the best army in the world. If they were not so, you would have heard of great inconveniences by reason of great arrears. I believe the best army that ever was in the world. I bless God for it. I hope it will manifest itself so to the world. We raised them here. I moved it. We voted all the Colonels and Commanders in Chief. This noble Lord that sits by me, Lord Fairfax; I bless God that he, having received so many wounds, now sits on my right hand. If we should not take care of the best army in the world we were to blame. I shall speak for them, now I have liberty. I am sorry they are come to necessity. When your Speaker was taken out of the chair, (fn. 20) there were 100,000l. in coin in Ireland, and as much in London, ready coined. The matter of arrears is left to your care. I am glad it is so. It rejoices my heart that we are not likely to leave posterity in a worse condition than we found them before.

I shall speak to the war with Spain afterwards.

It is said it concerns you to be in a posture of defence. You never had such a fleet as in the Long Parliament. All the powers in the world made addresses to him that sat in your chair. Lord Fiennes declares that you shall have an account of all your affairs. (fn. 21) I would have a Committee appointed to inquire into this, concerning army, navy, money, and all things. I refused to pay taxes not laid by Parliament. My oxen of value sold for twenty and forty shillings a-piece. I would have all the names of your officers, with an account of that money. There should be two Committees, but not too numerous. (fn. 22)

Colonel Birch. The honourable person, my honoured friend, has well moved you for a Committee. I wish the former part of his speech had been left out, as to the Long Parliament. Give me now leave to account to you how I left it. I was one of those who was put out. (fn. 23) There were then 100,000 men in arms, carried on with a small charge. We left 600,000l., and half as much out of compositions, Weavers'-hall money, Dean and Chapter lands, (fn. 24) and 120,000l. per month laid.

If that glorious time had continued seven years longer; if it had given the people that ease that was expected, it had yet stood.

The Protector says his interest shall be ours, to give peace both at home and abroad. That speech, if well looked upon, will satisfy all.

I would have a Committee to those ends. (fn. 25)

Mr. Starkey. I fear none of that money those gentlemen speak of, that they left, will now be found. To appoint a Committee, is very proper, but a work of time. They stand in need of some money. His Highness would not have told you of the arrears, had he had it in his treasury to pay them. We cannot redress past grievances. Other powers are to be consulted in raising of money as we are now, constituted. (fn. 26) First settle your foundations. Rest not upon an expectation of a return from your Committee, to supply you. (fn. 27)

Mr. Bodurda. First understand your consistency and construction. I would have you order the Commissioners of your Treasury, to bring in what remains on the foot of the account, since the last Parliament. The Petition and Advice requires it. I suppose they are preparing it. I should fear the Committee of the Army presenting their arrears. (fn. 28)

Mr. Secretary. I am glad to see this House entertain themselves with this consideration. I shall not look back at what is passed. If that were examined, I doubt you will find no such treasury, but rather great debts. Yet compare what sums were raised, and it is no more than might be expected.

I understand not the grounds of that commission, viz, the nomination of all the officers. We are now under another constitution.

The matter of your money, you may have an account of, which I suppose is all that is meant by this Committee. Se veral officers can acquaint you with the state of affairs. Instead of a Committee, I would have you appoint the several officers to bring you in these accounts. (fn. 29)

Serjeant Maynard. It is necessary in time to have an account by a Committee, but a work of time that will be. I would rather have the state of things from the officers, which is more proper and natural. Never could you get an account in Parliament, from whom received, and to whom paid. (fn. 30)

Mr. Knightley. I have never been a soldier, yet always was forward that they should have their due encouragement. That noble Baronet brought a good estate hither. The Secretary and Seijeant Maynard have well moved you. Committees are tedious. I would first have the officers bring in their seyeral accounts. (fn. 31)

Sir Arthur Haslerigge. I would have the wheels oiled, that we may go on cheerfully. I would have us plainhearted. I would have the names of the officers. If they be our army, they shall have the last drop of my blood. The militia is our militia. Shall not we ask to see their names again ?

We may vote such powers as to put us to fight all our cause over again. This must be spoken to, fully. Laying foundations, we shall unsettle as well as settle, and bring blood instead of power.

Mr. Trevor. The peace of this nation is more concerned in looking forward than backward. The question is narrow, whether you will have an account of your monies ? I hope it is not intended, you should alter your constitution.

Mr. Scot. If you call not arrears looking backward, I know not what is looking backward. (fn. 32)

He that reckons without his host, or pays without a reckoning, is either very rich or very weak. See your charge first, and then you can the better estimate what to provide.

I am sorry we have any war. I would have your army encouraged. I would have a Committee, as moved.

Sir William Wheeler. A true saying, the people is the purse of the nation. Accounts are always given by the Commissioners, but Committees are tedious. I would have the officers give you an account of all. I move, that they deliver in their accounts on Monday sennight, and swear they keep their books in a good method. (fn. 33)

Mr. Scawen. I would have an account of your strength, of your charge, and of your treasure.

Resolved, that the Commissioners of the Treasury be required to deliver into this House, on or before Monday sennight next, an account of the state of the treasury within and under their survey and jurisdiction.

Colonel Parsons. I move for a list of your officers, to know your strength.

Mr. Neville. This question is not largo enough to hold your debate. It is moved that you may know your strength. I would have a Committee to examine the whole business.

Mr. Knightley. If my bailiff should bring me an account of 2000l. spent this year, and say not to whom, I should take it as a lame account.

Mr. Weaver. It was told you by the Protector, that is now in heaven, that you should have an account last Parliament, and he died before you could have it.

Mr. Manley moved to change the word "require" for "desire."

Mr. Hungerford. They are your servants, and require is most proper.

Mr. Reynolds. You must have another question. You must have a statement of your charge, as well as discharge. I move that, the same day, there be brought in a statement of the establishments of your Army and Navy.

Mr. Scawen. There are General-officers, Admirals, &c. Are not they fittest to give you an account?

Lord Lambert. It is fittest to receive an account of the state of your army and navy from the officers. Of the army you may have a certain account, but of your navy, only an estimate.

Mr. Raleigh. I would have it compared, your present establishment with what was your establishment.

Dr. Clarges. The Commissioners of the Treasury can give you an account of the estimate.

Mr. Secretary. Your first question comprehends, the latter. There can be no account of the establishment of your Navy, only an estimate. Yet, seeing you are inclined to it, let your question go on, that the officers do give you an account. Every account comprehends a discharge and a charge.

Resolved, that the Committee of the Army be required to deliver into this House, on or before Monday sennight next, the establishment of the Army of the three nations, as it stands now before them.

Mr. Reynolds. Your charge must be according to your danger.

Colonel Birch. It is not fit to bring your strength to such open examination. It is not fit to be discovered.

Mr. Hoskins. It is not proper to discover your strength, or your designs.

Mr. Jessop. The Lords of the Council (fn. 34) are not altogether capable to give an account of the charge of the Navy. They can give you a list. The Commissioners of the Admiralty and Navy can give an account of present and past charges and future estimates.

Serjeant Seys. I would not have our preparation laid open. Sever the questions; for with past or present, you may have an account.

Colonel Clark moved to leave out the last clause, as to the future estimate.

Resolved, that the Commissioners of the Admiralty and Navy, be required to deliver in to this House, on or before Monday sennight next, an account of the present charge, and of the debt now owing to the Navy. (fn. 35)

Mr. Bodurda and Mr. Starkey, moved that, for the Speak er's health and ease, the House be adjourned till Saturday, and that the fast be kept without the mace. (fn. 36)

The sense of the House was contrary, and some moved that it was never so.

The House rose at one o'clock.

The Committee of Privileges sat in the Star Chamber, Mr. Starkey in the chair. Adjourned to the House. All the day, till candle light, taken up in the business of Colchester election, between Major Stone and Barrington, chosen by the Mayor and Aldermen, &c., and Shaw and Johnson, chosen by the burgesses.

The question was, whether to go to judgment only upon the return, or upon the merits of the election ? It was resolved, twenty-eight to twenty-seven, that the merits should be debated, contrary to two resolutions of the Committee, the day before, in the case of Reading and Castle-Rising: Sir Arthur Haslerigge zealous in those, and slack in this." Kissing goes by favour."

Mr. Redding, in his speech to the Committee, called the Lord Protector Richard the Fourth.

Mr. Starkey would not declare whether the Yeas, or Noes had it, and was laughed at sufficiently for a quarter of an hour. He said he was not satisfied that the Yeas had it, and yet at last declared that he thought the Yeas had, contrary to his judgment. It was moved that a Clerk might read the petitions and papers; but denied: and the Chairman appointed to read them; else to leave the chair. The Chairman cannot leave it without leave.

The Committee adjourned till Saturday next, and then the business of Oxford to be taken up. (fn. 37)