The Diary of Thomas Burton: 5 December 1656

Friday, December 5,1656.

A private Bill, to enable Sir Thomas Elwood to sell lands for payment of his debts, read the second time and committed.

Major Haines brought in a private Bill, for confirmation of an agreement made between the Earl of Carlisle and his tenants, touching the dividing of a common at Nasing, near Epping, entitled an Act for Confirmation of an Agreement, &c. Read the first time.

Mr. Robinson. By the statute (by an agreement of landlord and tenant) you may improve; so there needs no Act to confirm it. A decree in Chancery will serve.

Sir Richard Lucy. I am one of the tenants, and know that it is the desire of them all to have this confirmed, which has caused a tedious suit and chargeable; and in regard Lord Carlisle has no issue, the tenants are jealous of posterity, and think they cannot be otherwise secure.

Major-General Packer. I know that that is the only reason why the tenants desire.

An Act for settling the Cathedral Church upon the Mayor and Burgesses of the City of Gloucester, for public, charitable, and religious uses, was read the third time.

Mr. Robinson. I except against the word "utensils" in the bill. There may be copes and crucifixes, &c. You do not give these away, I hope ?

Mr. Speaker. These are all sold long since.

Sir Christopher Pack. There may be plate.

Major-General Gaffe. It may be employed to charitable uses, &c. I would have the words and no other added there.

Resolved, That this bill do pass for a law.

Resolved, That his Highness' consent be desired hereunto. (fn. 1)

Mr. Fowell reported the bill from the committee, with amendments, touching rogues, vagabonds, and sturdy beggars.

1st Amendment, Blank filled up with 1st day of February.

2nd Amendment, Being wandering ten miles from his habitation.

3rd Amendment, Or other officer, added.

4th Amendment, After wandering, add, as aforesaid.

5th Amendment, Added the clause touching fiddlers and minstrels, declaring them to be rogues, vagabonds; &c.

Resolved, On the first amendment, to agree with committee.

2nd Amendment excepted against for too great a distance.

Major-General Packer. If they be but one or two miles from their dwelling, they may be called wanderers, I would have it.

Sir Christopher Pack and Alderman Foot. They should be confined to their own parishes, else the City will have no benefit by this clause; for though they do not beg, they may wander abroad loosely, &c. We are troubled in London with a sort of people that cumber the streets, lying at men's doors, watching opportunities to do a mischief, yet we not finding them actually doing any thing, cannot send them to the house of correction.

Colonel White. It is very well for ten miles distance.

Colonel Shapcot. The city of London may bring in another bill.

Sir Thomas Wroth. I cannot blame these worthy Aldermen, that they press you to rid themselves of such wandering rogues.

Sir Gilbert Picketing and Mr. Bodurda. You give them sixty miles compass to rogue in, which is more privilege than ever beggars enjoyed, for by this means you establish them to be rogues; for though they do not beg, yet if they be doing any thing within these ten miles that he may do without, he shall be no rogue.

Major Audley. If you leave it in the power of justices to judge who shall be wanderers, for ought I know I myself may be whipped, if I be found but ten miles from my own house, unless the justice of peace will allow my excuse.

Mr. Cary. You should make it wandering out of their parishes; else the cities of London and Westminster will have no benefit by this expedient, and they have more of such sort than all England besides.

Sir Richard Onslow and Mr. Highland. If you make new wanderers and vagabonds, other than ever our ancestors knew of, let us know what they are. In the statute they are enumerated. By these terminis generalibus, any man may be adjudged by the justice to be a vagrant.

Colonel Edwards. They have chain enough, keep them within their compass. If they know they have ten miles to rove in, by this means you give them forty miles circumference.

Resolved, Not to agree with the committee in ten miles distance.

Mr. Ashe the elder, Major-General Packer, and Alderman Foot. Yet, seeing they are but dissolute persons that are comprehended in this Act, let them be confined to two miles or to their parishes.

Dr. Clarges. Give liberty for five miles, that you may suppress the Quakers, (fn. 2) who greatly increase, and pester and endanger the Commonwealth.

Major Audley. Ascertain what this individuum vagum is, lest it be quidam homo, any man. I would have the per sons ascertained. If they be Quakers, I could freely give my consent that they should be whipped. I would have it ascertained what they are.

Captain Baynes. Unless you enumerate what these persons shall be, I cannot give you yea or no to it. For it may be extended to honest, conscientious men, who, haply not contented with their own ministers, go into another parish.

Resolved, That the word miles be left out.

Mr. Bodurda. In the statute touching fiddlers and minstrels, there has been a reservation of the privileges of one Dutton. I know not what it means, but I thought good to tell you of it.

Mr. Robinson. This privilege is excepted by another statute. These minstrels do corrupt the manners of the people, and inflame their debauchery by their lewd and obscene songs

Sir Thomas Wroth. Harpers should be included.

Mr.— (fn. 3) Pipers should be comprehended.

Alderman Foot. I hope you intend not to include the waits of the City of London, which are a great preservation of men's houses in the night. (fn. 4)

Sir William Strickland. The general word minstrel will be best; for if you go to enumerate, they will devise new instruments.

Mr. Butler. Music is a lawful science, and I love it; but, in regard you restrain it to those places, I think the general word will serve well enough.

Mr. Highland. Add singing as well as playing.

Colonel Whetham. I hope you will not deprive men of their voices.

Mr. Speaker. Singing is a natural, playing an artificial music.

Resolved, To agree with the Committee in the 5th amendment.

Resolved, To agree with the Committee in all the amendments.

Resolved, That this bill thus amended be engrossed.

Mr. Croke offered a report from the Committee for Country Registers. (fn. 5)

Mr. Bampfield offered a report from James Nayler's Committee.

Sir Gilbert Picketing moved, that the report for registers might be heard.

Resolved, That Nayler's report be heard.

Dr. Clarges. The order of the day was the Bill of sale.

Mr. Bampfield reported these resolutions. (fn. 6)

That the matter of fact and the resolutions, of the committee, was ordered to be reported.

A short history of Nayler's life.

1. Born near Wakefield.

2. In the service nine years, till he fell sick.

3. A member of an independent church, but cast out for blasphemy and suspicion of lewdness with one Mrs. Roper.

4. After he had been up and down, he went to visit the Quakers in Cornwall, where he was committed as a wanderer; his principles being, that he may fie with any woman that is of his own judgment.

The articles against him read, and summed thus—

That he assumed the gesture, words, names, and attributes of our Saviour Christ.

Major-General Skippon. I do not marvel at this silence. Every man is astonished to hear this report. I am glad it is come hither; I hope it will mind you to look about you now. It is now come to your doors, to know how you that bear witness of Christ, do relish such things. God's displeasure will be upon you if you do not lay out your especial endeavours in the things of God; not to postpone them. You are cambered about many things, but I may truly say this, unum necessarium.

It has been always my opinion, that the growth of these things is more dangerous than the most intestine or foreign enemies. I have often been troubled in my thoughts to think of this toleration; I think I may call it so. Their (fn. 7) great growth and increase is too notorious, both in England and Ireknd; their principles strike both at ministry and magistracy.

Many opinions are in this nation, (all contrary to the government,) which would join in one to destroy you, if it should please God to deliver the sword into their hands. Should not we be as jealous of God's honour, as we are of our own ? Do not the very heathens assert the honour of their Gods, and shall we suffer our Lord Jesus thus to be abused and trampled upon?

Wherefore do you sit in that, chair, but to bear witness of the truth ? to know who are for Christ, who not ? My conscience would fly in my face, if I should be silent. Lay these things to heart, and make it not an ordinary concernment.

I am as tender as any man, to lay impositions upon, men's consciences, but in these horrid things. I have been always against laws for matters ex post facto; but, in this, I am free to look back, for it is a special emergency. You would extend to punishment. This offence is so high a blasphemy, that it ought not to be passed. For my part, I am of opinion, that it is horrid blasphemy, and ought to be punished as blasphemy; and you ought not to let it slip through your fingers without due punishment. I know not how to extenuate the offence, or I should set myself to it.

Major-General Boteler. Though my indisposition might plead for my silence, yet I should go out with a troubled conscience, if I should not have borne my witness against it. We all sit here, I hope, for the glory of God. My ears did tingle, and my heart tremble, to hear the report. I am satisfied that there is too much of the report true. I have heard many of the blasphemies of this sort of people; but the like of this I never heard of. The punishment ought to be adequate to the offence. By the Mosaic law, blasphemers were to be stoned to death. The morality of this remains, and for my part, if this sentence should pass upon him, I could freely consent to it.

If we vindicate not the name of Christ in this, he will vindicate himself.

They (fn. 8) are generally despisers of your government, contemn your magistracy and ministry, and trample it under their feet.

The magistrate is to be a terror unto evil works. If we punish murder and witchcraft, (fn. 9) and let greater offences go, as heresies and blasphemy, which is under the same enumeration; for my part, I could never reconcile myself nor others to leave out the latter and punish the former offences.

It is not intended to indulge such grown heresies and blasphemies as these, under the notion of a toleration of tender consciences. He that sets himself up in Christ's place, certainly commits the highest offence that can be.

Sir Gilbert Picketing. Debate not the punishment till you be possessed of the matter of fact, which must be read in parts to agree with the Committee.

Old Mr. Rouse. First put the Report to the question, either in part or in gross, and when you have agreed that it is blasphemy, and that you have an Antichrist amongst you, then you will not, I hope, be at a stand what to do.

Mr. Downing. This man, in short, makes himself God; only distinguished by the visible and invisible. God is invisible, as in his own being. This distinction is threadbare.

The heathen, they worship not the stock and stone as visible, but as invisible, est Dens in cœdis. Christ himself never said that the flesh was God.

Here is no liberty of conscience in this case, for he makes himself God himself. Our God is here supplanted; If he be God, then we must worship him. He is our God as well as the women's God. If a devil, is it fit he should live? Then you will have two Gods.

You know what the Parliament did with a Strafford in civil cases, (fn. 10) and what the Parliament has done against corrupt judges. If ever there was a business for a Parliament, this is it. To supplant your God, oh, horrid ! If such a thing as zeal is to be allowed, certainly in this. And we cannot show too great a detestation of it.

Colonel White. There is something omitted in the Report which Nayler said, and that to me seemed as blasphemous as any thing: that "the old bottles were broken, and new wine poured in;" intimating that he is the new Christ, and the old one laid aside. For my part, I am sufficiently convinced of the matter of fact, and would have you first vote that it is horrid blasphemy; and if you make the sentence death, I think he very well deserves it. I shall give my Yea.

Sir William Strickland. The gentleman that did the Report has done it extreme faithfully. I attended the Committee all the time.

If there be such a thing as a traitor, certainly this is he, that sets up himself as a Saviour. I would have you first vote the matter of fact whether it be blasphemy or no.

Mr. Solicitor-General. [Ellis.] It were fit you should have the party before you at this bar, to hear what he will say to the Report when it is read to him, which is the most orderly in point of law. It is the course of proceedings in all criminal cases. This done, I shall freely give my consent for his punishment, it being as high an offence as can be committed.

Sir William Strickland. I hope you will be as zealous for your Jesus as the heathens were for their Diana of the Ephesians, and that you will bear your testimony against it as solemnly as may be. I desire he may be brought to the bar and hear the report read.

Colonel White. You have matter enough against him. I attended the Report and believe it to be true; but, for general satisfaction, I would have him brought to the bar, and adjourn for an hour, and sit again immediately upon, this business.

Mr. Bond. The proceedings against the Archbishop [Laud] was thus: you first agreed the matter of fact, and then drew up a bill, (fn. 11) and so brought him to the bar, and then passed sentence upon him. I would have you first vote the matter of fact, that he is guilty of blasphemy, and then send for him.

Lord Strickland. This seems not reasonable, that a man should first be condemned, and then heard. I would have him called to the bar, to hear what he will say to the Report.

Mr. Bedford. I am glad to hear the general sense of the House, so much against this horrid blasphemy. All the eyes of the nation are upon you for it, to see what you will do for God in this business. I would have you not to leave it, but sit forenoon and afternoon till you have done the business.

Major-General Jephson. The Bishop of Canterbury's case was another than this. You were his judges. You are possessed, of this business by a Committee already. I would have you put the question, whether this gentleman be guilty of blasphemy or no, and then proceed to know whether you will give sentence upon him yourselves here, or leave him to law. Happily there are some laws yet in force whereby you may proceed against him.

Mr. Attorney-General [Prideaux]. I conceive you have the matter of fact before you, sufficient to ground your indictment upon, for I think it not so needful that you should draw up a charge against him in regard the Report from the Committee is enough. I would have him come to the bar and either confess or deny, &c.

Lord Fiennes. We ought all to bear witness against such a horrid blasphemy", but I would not. have you be too hasty, but would have the committee to draw up a charge against him out of the Report, and then call him to the bar to answer this charge.

Mr. Speaker. If you call him to the bar, and he deny it, then you must go over all the charge and the evidence.

Mr. Rouse. The laws against blasphemy and Ranters are in force, and you may proceed upon them; for I doubt you distrust the power which is already in force in this kind, arid the government doth not alter the case.

Mr. Bamgfield. I should agree with this noble lord, (fn. 12) that he might be transmitted to law to be proceeded against, according to those Acts he mentions. I doubt it will be but wholly to lay aside the business, and so render all vain. Your time seems to be short. The putting of it off will be a wholly laying it aside.

If either you refer it back again to the Committee, or call the party to the bar, you must travel into all the evidence, and so render the whole matter fruitless. He has been three times before us, and the Committee was every time more sa tisfied of the horridness of the blasphemy. I would have you put the question whether he be guilty of horrid blasphemy.

Judge-Advocate Whalley.—Let the party be brought to the bar, and the whole matter be read unto him, and then ask him what he has further to say; and then let him withdraw, and so proceed to judgment, both upon the matter of fact and the punishment of the party.

Lord-Chief-Justice. I shall not delay your judgment upon this vile wretch; but God would have us proceed in a just way, though against the vilest person.

I am at a stand which way to put in, for your direction. I believe none here can give you a precedent of this nature.

Whatsoever authority was in the Houses of Lords and Commons, the same is united in this Parliament.

The proceedings formerly in this House were only to prepare a charge, and appoint a Committee to prepare evidence. This was transferred to the House of Lords in Lord Strafford's case and the Bishop of Canterbury's. We are not now preparing a charge against Nayler. You put a great trust in a Committee, but how ? It is but in order to something to be done here.

That which sticks with me is, whether there is a witness against him at all; not one against him upon oath. This is a proceeding against the law of God, and the fundamental law of the nation. This House (though they never used it) have power to examine upon oath.

The Report itself is so exactly done, that you may easily draw out articles against him, and then call him. Haply he may confess and then you need no witness. If not, you may examine, if it be but one witness. There must be proof in this case, and that, in this place, to justify your proceedings as agreeable with the fundamental way of proceedings.

Major-General Packer.—The Report is a sufficient charge against him. I would have you call him to the bar and hear the charge read, and after you hear what he says, then proceed.

Mr. Robinson.—Every man here ought to be satisfied, as fully as may be, before he gives his vote in matters of life. All our judgments are concerned in it. But I would have us not so straiten ourselves in time, as to neglect the order of our proceedings. I would have you call him to the bar; if he deny the charge, you must allow him his traverse. If he say not guilty, you must prove. Put it off till Monday.

Colonel Markham. You need not fetch witnesses from Bristol. Twenty of the members of this House know the truth of the matter of fact, from Nayler's own confession.

I would have you proceed upon this business in the afternoon, while it is fresh in our memory.

Major-General Disbrowe. I know no reason for this speed; for we may offend as well in proceeding and sudden stepping into judgments; especially in matters that concern life, which, when taken, we cannot restore. It is a weighty matter, and you may err on both hands. This is the first occasion that ever we had of this nature, here. I would have us to do things so as to justify us, before both the face of God and the nation too.

I would have it referred to a Committee of the Long Robe, to prepare a way to proceed.

Major-General Goffe. I would not have us too hasty in this matter, but refer it to a Committee, to prepare a way for proceedings in this case against to-morrow or Monday.

Mr. Attorney-General. I think you are sufficiently possessed for your proceeding to judgment in this business; unless in the matter of the oath, which sticks with me most.

Sir Richard Onslow. I think, where confession is, there needs no witness, and, as I understand the Report, he hath confessed enough. If you had not. referred it to a Committee you might have brought him to the bar.

If you declare your judgment upon former laws, then it will not be with the honour of this Parliament to transfer the matter to another judicature, having taken such cognizance of the business wherein the nation expects your result.

In Strafford's case, you proceeded upon the legislative power. I would have you, this afternoon, debate it, whether you will proceed upon the legislative way or the judicatory way. But I would have you preserve your honour, both before the nation and your enemies too.

Mr. Recorder [of London, Sir Lislebone Long.] I appeal to that gentleman, if ever he knew any confession of the party before a Committee to be evidence in this House; I know his experience is great. For instance, confession of the party before a Justice of Peace, or Grand Jury, is no evidence. If the party, after, deny it, you must prove it. Proceed which way you will, that cannot be evidence against him which was only confessed at the Committee.

It is fit a charge should be prepared, and he brought to the bar. If he confess it, we are then convinced of the truth of the Report, and may proceed to sentence; and it is fit he should know that he is to answer for his life. I would have a charge prepared against to-morrow morning.

Lord Whitlock. This case is new, and ought to be seriously considered; for though this wicked fellow deserves all punishment that can be inflicted upon him, that which I fear is the consequence as to future, in the manner of proceedings which may hereafter concern any man's life or fortune. It is a case of blood, and you ought to proceed solemnly, by calling the party hither, and witnesses, if need be. I would have it referred to the Committee, to consider of the manner of proceeding against James Nayler.

To send it back to any inferior jurisdiction, is below the honour of a Parliament. I would have the Committee to resolve you how you will proceed, whether upon your judicatory or legislative power.

Mr. Bampfield. If I were against any thing to be done in this business, I should be for referring it back again to the Committee, for I certainly know this is as much as to say you will do nothing in it; for it will be a work of some weeks.

The whole evidence doth arise upon his own confession. Though no witnesses were sworn before the Committee, yet depositions before magistrates, at Bristol and other places, were taken upon oath. The eyes of God, of all the nation, and all the world, are upon you; and if you lay this aside, and do nothing in it, I shall say it is no more Nayler's sin, but set it upon your doors.

I would have him called to the bar this afternoon, or in the morning, seeing so many desire it.

Sir William Strickland. Let him be called to the bar this afternoon, for I would not have our zeal in this business, which seems to be so unanimous, to meet with the least damp or coldness. For my part, I am very well convinced of the matter of fact, having attended the Report for most part, so that we may proceed freely to judgment; yet, for general satisfaction, let the Report be read to him, and demand his answer.

Lord Lambert. It is matter of sadness to many men's hearts, and sadness also to mine, especially in regard of his relation sometime to me. He was two years my quarter-master, and a very useful person. We parted with him with great regret.

He was a man of a very unblameable life and conversation, a member of a very sweet society of an independent church. How he comes (by pride or otherwise) to be puffed up to this opinion I cannot determine. But this may be a warning to us all, to work out our salvation with fear and trembling.

I shall be as ready to give my testimony against him as any body, if it appear to be blasphemy. You are jurors, judges, and all, in this case. I would have you careful in your manner of proceeding. It deserves consideration: witnesses, viva voce, must be heard here. You ought not to tie your judgments upon any man's eyes or ears; but to come to a solemn and serious debate of it. I would have it referred to a Committee. I hope your time will be longer, that you need not scant yourselves in this matter.

I confess I did not think the business to be of this nature, though I heard much rumour of it abroad. It is very much sorrow of my heart, and I hope nothing shall quench my zeal against it; but I would have it regular.

Dr. Clarges and Mr. Butler. This proceeding has been as solemn as could be. The first day that the Committee met, it was as like a Grand Committee as could be; for most of the members were there. We are ripe for a question; I would have us not to quench our zeal, but to adjourn for an hour, and proceed in the afternoon.

Major-General Skippon. For my part I am fully satisfied with the matter of fact. If you put it off, I fear Nayler's sin will prove a national sin, and consequently a national judgment, for, I fear, to delay it will wholly lose the business. I would have it adjourned till to-morrow morning, and no business to intervene.

Mr. Drake. That is more than you can promise, that nothing should intervene: for if you do it the first business to-morrow, the house will be thinner; and if you enter upon any debate, you know not how long it will hold you. I would not have you delay a matter of this nature, which deserves your speedy and serious care. I would have you adjourn for an hour.

Judge Smith and Mr. Reynell. It might be taken up this afternoon, and adjourn for an hour, and bring Nayler to the bar, and read the whole matter to him.

Colonel Sydenham. We may err as well in our too hasty zeal in this weighty business. It is fit we should well consider of the manner of our proceeding, for the honour of it. For my part, I cannot but bear my testimony against the matter; but, in regard it may haply reach to life, let us not do justice in an unjust way. I would have no negative, neither, in this debate, but go on unanimously into the offender's punishment, and, in order thereunto, to adjourn till tomorrow morning; that you may fully debate this business.

Mr. Bacon. That we may not lose the benefit of our debate to-morrow, if you do adjourn till then, I hope you purpose not that any should speak again that have spoken to this debate, otherwise your work will be endless. Whereunto the Speaker agreed that none ought to speak again to the debate adjourned.

Mr. Moody. The person himself may be brought hither to-morrow morning.

Resolved, That this debate be adjourned till to-morrow morning, and nothing to intervene.

Mr. Bond. Nobody should be suffered to come to him in the meantime.

Major-General Skippon. I doubt, unless you put the question about calling him to the bar to-morrow morning, you 'll lose your whole debate. I desire that question may be put.

Major-General Kelsey. If you intend this, something must be determined previous to this vote; how you shall demean yourself, whether to prepare a charge against him, or read the Report as it is.

Colonel White. Put the question whether the charge now against him shall be read to him at the bar.

Colonel Whetham. We are surprised in the vote, if we must not resume the debate to-morrow, before Nayler be called.

Lord Cochrane. You will not longer suffer this fellow to personate Christ before your eyes, and be so suspensive what you shall do with him. I would have you call him to the bar to-morrow morning, and proceed.

Sir Gilbert Pickering, Major-General Kelsey and Colonel Jones. Put not a question that may preclude the vote of others who think the debate is adjourned. The order of the house is that you should hot proceed further.

Major-General Packer. This question is fair, for we that agreed to defer-it till to-morrow, are also concluded in our vote, for though the debate was adjourned, it was in order to the calling him to the bar.

Mr. Nathaniel Bacon and Mr. Downing. It is fit you should keep him close. He has many friends in the city, who may acquaint him with your proceedings, so that he may stand mute, or deny.

Lord Strickland. You ought not to meddle with any debate upon what you have adjourned.

Sir Christopher Pack. By this rule you cannot put a question about letting none come to him; if all further debate in order to the business be excluded.

Sir William Strickland. Such a leper ought to be separated from the conversation of all people. This is no harm to the debate.

Sir Gilbert Pickering. I am against keeping him private, but would have him rather to know the danger he is in, that it concerns his life. Who can tell but the terror of death may so work upon him as that he may retract his errors. I hope there is none here but desire his repentance rather than his ruin. I speak my heart in this thing, though none second me.

Resolved, That he be kept close prisoner till further order of this house.

Mr. Downing proposed that James Nayler be brought to the bar to-morrow morning.

Sir Richard Onslow and Major-General Kelsey. The members are by this means precluded. Haply it will not be thought fit to call him to the bar at all. This was part of the debate which was adjourned, and properly you cannot proceed to put this question.

Lord Claypole. My opinion is against this question; for, besides the main objection, other questions will rise about the time, which you cannot determine now, and what you shall say to him when he comes.

Captain Stone and Major-General Skippon. I would have him called to the bar to-morrow, and the report read to him, lest you lose the fruit of this debate and to-morrow too.

Colonel Shapcot. The proper question is to agree with the Committee. Haply you may have no occasion to call him, till sentence.

Colonel Whetham and Mr. Cary. I desire you would inform the House what was the debate that was adjourned. If this about calling Nayler to the bar was not the debate, I beseech you that you would not put this question. Other questions would arise upon.it, and you must fetch candles. (fn. 13)

Mr. Bedford and Mr. Bacon. It is very considerable that you should be unanimous in this debate, as you have hitherto been; and to the end there should not be a negative at all in the business, I am willing that the question be for the House to adjourn, and to forego the other question.

This debate held till almost four, and then the House adjourned.

The Grand Committee of Religion sate this night.