The Diary of Thomas Burton: 12 December 1656

Friday, December 12, 1656.

An Act for taking away purveyance, and compositions for purveyance, was this day read the third time, and, upon the question, passed; and ordered to be offered to his Highness the Lord Protector, for his consent. (fn. 1)

Per Sir William Strickland. Resolved that the Bill for Acklam to pay his debts, be read to-morrow morning.

Upon the order of the day.

Mr. Speaker twice read the question for the smaller punishment.

Mr. Bond and Mr. Bampfield. The proper question is for drawing up a Bill of Attainder, and that the person should suffer death. It was first moved, and by the Orders of the House it ought to be put, else you exclude their votes that are in the negative, (if the question be put for the smaller punishment) for then he shall not be punished at all.

Alderman Foot and Major-General Gaffe. The first question is most proper; for, however you have drawn up another question; and offered it, the sense of the House has gone as much the other way.

Lord Strickland and Colonel Rouse. The question for the smaller punishment ought to be put, for the sense of the House has gone that way.

Colonel White. You should put the question whether that question should be put. This will determine it; you having fully debated the business already.

Mr. Ashe, Junior. If that question be put, it cannot be adequate to the offence. If you adhere to your former vote, that he is a horrid blasphemer, you cannot go to less than the punishment by death. It is death by the common law, blasphemy and heresy, and it is true till 2d Henry IV. (fn. 2) there was not a statute for it; but the law is the same.

Mr. Robinson. By this rule all the protestants of England may suffer death, for I believe according to that rule, we shall be all heretics.

Mr. Bampfield and Major-General Goffe called him down: he had spoken before, viz. upon Tuesday night, at the post, near the bar.

Mr. Bedford. He did not speak to the debate, but only to the order as I remember; and he was called up against his will.

Sir William Strickland. We must, in a matter of this nature, dispense with our orders in this case, and give every man his freedom to speak. I desire he may speak.

Major-General Whalley proposed that he might be heard, but not upon these grounds.

Major-General Disbrowe. Till we be of a better temper, so as to hear one another speak with patience, I would have us lay this business aside, and go to something else.

Major-General Kelsey proposed that he might be heard.

Mr. Church stood up to speak, but Mr. Speaker called him down, unless he spoke to Mr. Robinson's speaking.

Mr. Robinson. By that rule which Mr. Ashe offered, we must all suffer death. For the law he speaks of was made in the time of popery, when we were all accounted heretics and blasphemers. I desire to know whether, if the Papists should come to be our judges, we might not all suffer by this law. I like it not, to leave it arbitrary to the judgment of after parliaments to determine what is blasphemy. I shall not undertake to argue the merit of the cause. It has been fully debated. I cannot agree to that punishment by death; nor to dismember him, which is worse than death, for it is equal in torment. I had rather err in point of mercy, than exceed in justice.

I can freely concur with your question, and I think that will answer your end. For it is idleness has brought the fellow to these high notions; whereas hard labour will bring him to sleep, and consequently to settlement again. I would have you make him a false prophet as to the foretelling his death. I strive in all things to personate Christ. Let us make him a liar.

Mr. Bodurda. I question whether you ought to put either the one or the other question: for, by this means, you tacitly admit the power of the civil magistrate in matters of religion, which has been also debated. I conceive, under favour, that though this House may make a law, yet they cannot do it against the law. They arc to keep to the rules of justice. I cannot say this person is worthy to die, so much as I understand of the business. Pardon my confusion, because of the complicateness of the question. I never heard of any punishment that had more than two ends:—1. Reclamatio. 2. Exemplum. If you put him to death you bar Reclamation. For Example: It is not likely to reclaim his followers in their errors. It will rather confirm them; for what he told you at the bar, I suppose, he has told his disciples also,—that he must lay down his life. I cannot say this is an offence against the law of nature, but rather against the law of grace.

I cannot say the text is clear in the Old Testament, for to put a blasphemer to death.

However, we are under a Gospel administration, and no rule nor warrant there can be found for his punishment. I know nothing he has professed in the letter, against the law. The inward thoughts and opinions of men are not to be punished in this world. This is but only opinion in him.

I remember what was reiterated six or seven times by Mr. Bampfield, "The mind of God was clear to him." (fn. 3) If you should call Nayler again, haply he would also say, "The mind of God was clear to him;" and it may be proved just, by as many texts. I appeal to all, if any divines or others have been sent to discourse with him upon his opinions, or that he has been at any time told that his life was in danger, which was always the course with heretics, to use all endeavours, again and again.

I am also against your question for the smaller punishment, not that I would not have him punished at all. It will look very ridiculous upon your records.

Proceed either by your judicial or legislative way. I doubt whether you have all the power of the House of Lords transferred to you, or especially in this thing. You did take off the grand and high delinquent, the late king, by your legislative law, but this was just.

I deny that any part of the Report, as to his excommunication, was fully evidenced to the Committee. But, if he was excommunicated, this makes more for James Nayler. If you punish him for this, you must punish twenty thousand as well as him. You must punish all the Jews; for those that never were of a church are all one with them that are excommunicated; else, I dare be bold to say, you do unjustly. Will you suffer the Jews to walk upon the exchange that deny Christ, and say he is an Impostor, and put this man to death that acknowledgeth Christ, and all that is in the letter ? I would have him either transferred to law, or, otherwise, make a speedy law against blasphemers, and you may soon overtake him by it; and in the mean time keep him close prisoner.

Mr. Bedford. If I could be at peace in my conscience in this thing, I should not have troubled you; for he that justifies the wicked, and he that condemns the innocent, are equally guilty.

It is told you that it is not granted whether the civil magistrate have any power in matters of religion. I hope there are few in this House that will deny it.

If I should not bear my testimony against this person, by telling you he deserves to die, I should be afraid to go out of this House.

I conceive, though we be under a different administration, yet the equity of the old law still remains to us, be it judicial or otherwise.

After Moses and Aaron had put in ward the person in Leviticus, God decides the question, he shall die. I would fain have it answered, whether God has not by this made a law. The other text for gathering of sticks, is the like.

It was very well opened to you, that place of Zechariah; (fn. 4) and I confess it much satisfies me, as an explanation of the law. As to the objection, if the law in Deuteronomy must now be observed, then the father and mother must thrust the blasphemer through. What is understood by the fifth commandment? Is not obedience to the magistrate and all superiors included under the title of father and mother ? But, from Gospel rules, I am satisfied in this sentence, which I am ready to give upon this person.

Heresies in the Gospel are enumerated under the works of the flesh, and so to be punished by the magistrate. Let it be made out to me that a blasphemer is not an evil doer, then I will agree the civil magistrate has no power to punish. Where is there a rule in the Gospel to punish an incestuous person, or a murderer? Yet I hope none will say these ought not to be punished with death. The equity of the law of old, is the foundation of our law against such persons.

That parable of the tares and the wheat growing together, cannot surely extend to the impunity of blasphemy. It may as well reach to murder and adultery, for David committed both, and yet became of a tare good wheat. It is dear to me that God's honour is more at the stake in this thing, than ever it was in this nation. It was prayed for you by the minister (fn. 5) yesterday, that God would clothe you with zeal. I beseech God to direct you to do things for his glory. For my part, I dare not but freely deliver my opinion, that this person ought to die, and that is my humble motion.

Major-General Kelsey made a long repetition of the former debates.

The gentleman was mistaken who said the first punishment of sabbath breaking was not till the person was taken gathering of sticks. The law was made before, that the sabbath breaker should die the death. Yet so tender was Moses in the case of blood, that though he had a law for it, he did not do execution till he had asked counsel of God. There are but four texts, four examples in Scripture in this case; yet God, in them all, was consulted.

There may be a higher blasphemer than this man. He that cursed God was put to death; but you will hardly bring that to this case.

Nor was that blasphemy punishable, by the principles of nature, with death, till the law was instituted. Though the light of nature convince men of the sin of blasphemy, yet not of the punishment; though the sin was the same from the beginning against the Deity. This is a very high blasphemy, and a dishonour to God, and scandal to Christian re ligion. But it cannot possibly be reduced to that case, so much insisted upon. A vast difference between this, and that of cursing the Creator. Conscience would fly in his face; but to resist or speak evil of Christ, is not so great a blasphemy, for we cannot receive him unless it be given us of the Father.

No body will be against exasperating this offence under the Gospel; but who shall be judge? I would fain have those gentlemen make it out, how those texts in the Old Testament and the New, do quadrare.

I hope that common law is out of doors, that was but too common. We shall never rake that out of the ashes. It was so common, that it had left no Protestants in England. They were the heretics which that law designed as the gentleman mentioned. (fn. 6)

It may be any man's case here. He knows not how to walk securely; if a man shall be punished by a law ex post facto. To make a law in any case to this purpose is dangerous, much more in a matter of this nature, which is so dark and difficult to know what the mind of God is in this thing. The Christians in New England, I had it from a good hand, do much wonder at the zeal of this Parliament in this case. (fn. 7) I grant this is no argument to us, what they do; yet it may serve as well as that precedent which was urged to us from the Parliament of Burgos. [Bourdeaux.] (fn. 8)

It is greatly to be doubted, whether this person that has so far apostatised and fallen upon the rock, but he shall be broken in pieces. I have little hopes of him. Yet who can tell what hard labour and humbling of him may bring him to; but to take his life I cannot agree.

Colonel Briscoe. The distinction of blasphemies offered to you, may be good in other cases; but, under favour, in this case there needs no distinction.

The Turks punish the Christian for blasphemies, and so the Jews. The arguments drawn from the consequences are, 1. No natural consequences, but only accidental; so that we ought not to fear any danger from that precedent. 2. It is said, he is under a delusion, therefore to be pitied. And say he does it, ignoranter, not per ignorantiam: this should rather aggravate than extenuate. Do we not say in Indictment for murder, "by the instigation of the devil ?" (fn. 9) I appeal to yourself.

Again. This man's offence is more than an Atheist's or a Pagan's, for he had received the light; which divines call a species of sin against the Holy Ghost.

My reasons why the person ought to die:—

1. I presume the common law, in this case, may be in force. The difference was de modo prosequendo.

You may proceed by the legislative power, and you cannot take a better rule than that in the Old Testament, your Master's rule, which is like ipse dixit with Pythagoras's own scholars, or like est Aristotelis in the University.

But it is said, that of cursing God is a greater blasphemy. I grant it to be so in itself, but the circumstances of it may extenuate; for it was in his passion that he committed that cursing; but this offence of Nayler's is deliberate. The punishment in that text is reiterated, morte moriatur.

That of death for gathering sticks on the Sabbath-day, was very well answered to you by the gentleman over the way. That was but singularis, and so ought not to be drawn into precedent.

3. This man's principles and practices are destructive to human society, as by destroying those of their own sect. Do not they all hold against the essence of Government ?

4. How pernicious have these men already been; how spreading, infectious, and contagious. The magistrates are nursing fathers, and ought to see to this. They increase daily. They have neglected the opportunity of all admonition, and so are left to punishment.

5. It robs God of his glory: instance Achan's case, &c., and God will not give his glory to another. He is jealous of it. I am as much for mercy as any man; but in this case, I cannot go less than death; but with this caution, that I would have him reprieved for a month, or six weeks, or longer, and send some divines and others to him, that, if possible, he may be recalled and restored, &c.

Lord Whitlock. Adjourn, for I see many desire to speak; and in this weighty business it is fit every man be heard out, which you have not time to do now.

Colonel Shapcot stood up to speak, but was cried down, but cleared himself that he had not spoken.

Sir William Roberts. If you hear Colonel Shapcot to the merits of the cause, you ought to hear Lord Whitlock first, for he only moved conditionally to adjourn, otherwise, that he might speak.

Colonel Shapcot. I shall not trouble you long. I hope it is agreed upon, on all hands, that by the old law this very blasphemy is punishable by death. The question is now, whether you may pass that sentence upon him. In my own private opinion, I am satisfied for this offence Nayler ought to die.

But I sit here in a court, and upon that account I cannot give my vote that you shall pass a sentence of death upon him; that is, if you proceed judicially. I doubt you, having not a law, cannot properly do it in this way.

My motion was to go in the way of a Bill. Then you might have properly passed this sentence upon him; but you are out of that way now.

For my part, I think the smaller punishment will be sufficient disgrace to the offender, and that would content me. I am not satisfied from any precedent or law, now in force, that you can proceed judicially to work in this matter. Now that the power of the House of Lords or the Ecclesiastical power is in this house, I very much doubt whether you can take up the legislative power in all cases. Those precedents, before cited, do very much differ from this case in my judgment.

The power sticks most with me of any thing. I confess, if I were satisfied in that, I should be of another opinion. But if you please to put the first question, it will soon be decided, and you must come to that at one time or other.

Mr. Nathaniel Bacon. I am for propounding of a new question. Otherwise, you exclude their votes that are for a higher punishment; for if they give their negative, and it pass, then the fellow shall have no punishment at all. But seeing that many stand up with a desire to speak, and others will speak to it, I desire you would adjourn the debate till to-morrow.

Resolved, That this debate be adjourned till to-morrow.

We were at dinner with Lord Richard Cromwell, per special invitation; Mr. Bampfield and divers others. Lord Richard was very clear in passing his judgment that Nayler deserves to be hanged, and he said he very much slighted Shapcot's motion. He, for his part, was clear in that Nayler ought to die.

This afternoon the grand Committee, but I was not there.