House of Lords Journal Volume 4: 10 April 1641

DIE Sabbati, videlicet, 10 die Aprilis.

PRAYERS.

The Eighth Article of the Scots Demands, to be considered, P. M.

It was signified to the House, That the Lords Commissioners have received all the Scots Demands, touching the Eighth Article; and it was desired, in regard of the Importance of it, that their Lordships would appoint a Time to consider of it; and it was Agreed, That the House should sit this Afternoon about that Business.

L. Herbert versus E. of Cleveland, concerning the Manors of Stepney and Hackney.

Ordered, That, upon Monday Morning next, the Earl of Cleveland is to be heard, by his Counsel, to shew Cause why the Lord Phillip Herbert and others should not have the Possession of the mortgaged Lands of Stepney and Hackney, according to an Order of the 8th Day of January 1640, made by the Lords Committees for Petitions.

Adjourn to Westminster Hall.

E. of Strafford at the Bar.

After this, the Lord Steward adjourned this House to Westm. Hall; and, the Peers being all set there in their Places, the Lord Steward commanded the Lieutenant of The Tower to bring forth the Earl of Strafford to the Bar; which being done, the Lord Steward signified, That both Sides might make a Recollection of their Evidence, and the Earl of Strafford to begin first.

Hereupon Mr. Glynn desired, That, before the Earl of Strafford began, that the Commons might produce Two Witnesses to the Fifteenth and Twenty-third Articles, to prove that there be Two Men whose Names are Berne; and so a Mistake will be made clear.

Debate about examining new Witnesses to the 15th and 23d Articles.

The Earl of Strafford desired, That no new Witnesses may be admitted against him, unless he might be permitted to produce Witnesses on his Part likewise; which the Commons consented to, so the Earl of Strafford would confine himself to those Articles upon which he made Reservations; but, he not agreeing to that, and the Commons insisting upon it;

Adjourn to the Chamber of Parliament.

New Witnesses to be examined to these Articles.

The House was adjourned to the usual Place above, to consider of it; and, after some Debate, their Lordships thought it fit, That the Members of the Commons go on in producing new Witnesses, as they shall think fit, to the Fifteenth and Twenty-third Articles; and that the Earl of Strafford may presently produce such Witnesses as are present; and such as are not, to name them presently, and to proceed on Monday next; and also, if the Commons and Earl of Strafford will proceed upon any other Articles, upon new Matter, they are to name the Witnesses and Articles on both Sides presently, and to proceed on Monday next; but both Sides may wave it if they will.

Adjourn to Westminsterhal.

The Lord Steward adjourned this House to Westm. Hall; and, being returned thither, signified what the Lords had thought fit for the better Proceeding in the Business.

Debate whether the E. of Strafford shall examine new Witnesses to any Article he pleases.

Adjourn to the Chamber of Parliament.

The Earl of Strafford, upon this, desiring not to be limited to any Reservation, but to be at Liberty for what Articles are convenient for him to fortify with new Witnesses; (fn. 1) to which the Commons not assenting, and for other Scruples which did arise in the Case, one of the Peers did desire that the House might be adjourned, to consider further of the Particulars. Hereupon the Lord Steward adjourned the House to the usual Place above.

The Lords, being come up into the House, fell into Debate of the Business; and, for the better informing of their Judgements what was the Course and Common Justice of the Kingdom, propounded this Question to the Judges:

Question to the Judges.

"Whether it be according to the Course of Practice, and Common Justice, before the Judges in their several Courts, for the Prosecutors in Behalf of the King, during the Time of Trial, to produce Witnesses to discover the Truth, and whether the Prisoner may not do the like."

The Lord Chief Justice delivered this, as the unanimous Opinions of himself and all the rest of the Judges:

Their Answer.

"That, according to the Course of Practice, and Common Justice, before them in their several Courts, upon Trial by Jury, as long as the Prisoner is at the Bar, and the Jury not sent away, either Side may give their Evidence, and examine Witnesses, to discover Truth; and this is all the Opinion as we can give concerning the Proceedings before us."

Upon some Consideration after this, the House appointed the

Earl of Bath,
Earl of South'ton,
Earl of Hartford,
Earl of Essex,
Earl of Bristoll, and
The Lord Viscount Say et Seale,

To draw up some Reasons upon which the former Order was made; which being read, as followeth, were approved of, as the Order of the House:

Reasons upon which the Order was made touching the Examination of new Witnesses.

"The Gentlemen of the House of Commons did declare, That they challenge to themselves, by the Common Justice of the Kingdom, that they, being Prosecutors for the King, may bring any new Proofs by Witnesses during the Time of the Evidence being not fully concluded. The Lords, being Judges, and so equal to them and the Prisoner, conceived this their Desire to be just and reasonable; and also that, by the same common Justice, the Prisoner may use the same Liberty; and that, to avoid any Occasions of Delay, the Lords thought fit that the Articles and Witnesses be presently named; and such as may be presently produced to be used presently, and such as cannot, to be used on Monday; and no further Time to be given."

Both Sides sum up their Evidence, if they will wave the Examination of new Witnesses.

The Lord Steward was to let them know, That, if they will on both Sides wave the Use of new Witnesses, they may proceed to the Recollection of their Evidence on both Sides; if both Sides will not wave it, then the Lord Steward is to read the precedent Order; and, if they will not proceed then, this House is to adjourn and rise.

Adjourn to Westminster Hall.

This being done, the Lord Steward adjourned this House to Westm. Hall, and demanded whether both Sides would wave the examining of Witnesses, and proceed to the Recollection of the Evidence.

Committee of the Commons cannot wave the new Evidence.

Mr. Maynard said, "He had no Command from the House of Commons to wave the Evidence, which he had Directions to press."

Former Order read.

Then the Lord Steward read the aforesaid Order of this House.

Committee of the Commons desire Leave to consult their House.

Mr. Maynard replied, "They were but as a Committee, trusted by the House of Commons to manage the Evidence; therefore desired to have Leave to receive Direction from the House in this Particular."

E. of Strafford desires to examine Witnesses to sundry Articles.

Mr. Glynn said, "That all their Witnesses were now ready."

But the Earl of Strafford desired to have the Liberty to examine Witnesses to the Second, Fifth, Thirteenth, and Fifteenth Articles.

Adjourn to the Chamber of Parliament.

Hereupon the Lord Steward adjourned the House to the usual Place above.

E. of Strafford remanded to The Tower till further Order.

The Lords being come up thither; it was Ordered, That the Lieutenant of The Tower do carry the Earl of Strafford back to The Tower, there to remain until further Order from this House be given.

Adjourn.

Dominus Senescallus declaravit præsens Parliamentum continuandum esse usque in post meridiem hujus diei, hora quarta, Dominis sic decernentibus.

Post meridiem.

PRAYERS.

It was moved, That the Time of the Cessation of Arms with the Scotts will expire on Thursday next; therefore, it was thought fit to have a Conference with the House of Commons, about the Continuance of it for One Month longer.

Hereupon a Message was sent to the House of Commons, by Mr. Justice Reeves and Mr. Justice Heath:

Message to the H. C. for a Conference, concerning the Continuation of the Cessation of Arms with the Scots.

To desire a present Conference (if it will stand with their Conveniency), by a Committee of both Houses, in the Painted Chamber, concerning the Cessation of Arms with the Scotts.

Cessation of Arms for a Month approved by this House.

Ordered, That this House doth approve of the Cessation of Arms with the Scotts for a Month longer, videlicet, from the 16th of April to the 16th of May 1641, upon the same Terms as formerly, if the Treaty last so long.

The Answer to the Message from the House of Commons was:

Answer from the H. C.

That they are now in a great Debate, but will send an Answer by Messengers of their own.

Baron Hendon refused Leave to go and hold a Court at the Cinque Ports, as his Attendance here is wanted; and that Court adjourned.

It was moved, That Mr. Baron Henden might have Leave of this House to be absent for a Time, upon Occasion of some Business concerning the Cinque Ports, he being Steward under the Lord Duke of Lennox there, and a Court there speedily to be kept. But the House entering into Consideration of the great Businesses now depending before their Lordships, wherein the Opinion of the said Baron might be used; it is Ordered, That he the said Mr. Baron Henden shall not depart the Town, but attend the House at such Times as it shall sit; and that the next Court to be held for the Cinque Ports shall, by virtue of this Order, be adjourned unto the next accustomed Day for their Meeting of the same; and that this Adjournment shall not be prejudicial to any Person whatsoever.

A Message from the House of Commons, by Sir Edward Hungerford:

Message from the H. C. that they will meet the Lords about the Cessation of Arms with the Scots.

To let their Lordships know, that they are now ready to give a Meeting, in the Painted Chamber, concerning the Cessation of Arms with the Scotts.

Their Lordships returned this Answer:

Answer.

That they will give a Meeting presently, as is desired.

Heads of the Conference.

The Earl of Bristoll was appointed to deliver at the Conference, "That their Lordships have consented to the Cessation of Arms, for a Month, if the Treaty last so long; but the Lords Commissioners will conclude sooner, if it can be; and to desire that they will take it into their Consideration, and return an Answer with what Speed they can."

L. Audley versus L. Cottington.

It was Ordered, That the Lord Awdley shall have a Warrant for bringing in such Witnesses as he shall have Use of, at the Hearing of his Cause between him and the Lord Cottington; and the Names to be returned unto the Clerk.

The House was adjourned during Pleasure, and the Lords went to the Conference; which being ended, the House was resumed.

Afterwards a Message was sent, by Mr. Pierpointe, from the House of Commons:

Message from the H. C. that they agree to the Cessation of Arms.

To let their Lordships know, That they do approve and consent to the Cessation of Arms with the Scotts for a Month longer, videlicet, from the 16th of this Month of April to the 16th of May 1641, upon the same Terms as formerly, if the Treaty last so long.

Then

Adjourn.

Dominus Capitalis Justiciarius de Communi Banco, Locum tenens Domini Custodis Magni Sigilli, declaravit præsens Parliamentum continuandum esse usque in diem Lunæ, videlicet, 12^m diem instantis Aprilis, hora septima Aurora, Dominis sic decernentibus.