House of Lords Journal Volume 4: 7 December 1641

DIE Martis, videlicet, 7 die Decembris.

PRAYERS.

Earl of Denbigh's Privilege.

Townshend arrested.

Delinquents sent for.

Complaint being made this Day, "That Thomas Townsende, a menial Servant of the Earl of Denbigh, and one specially employed in his Affairs, is arrested, contrary to the Privilege of Parliament, upon an Execution:" Hereupon it is Ordered, That a Habeas Corpus cum Causa, returnable immediate, shall be directed to the Sheriffs of London, to bring the Body of the said Thomas Townsende before the Lords in Parliament; and that Peter Bultiel, at whose Suit he was arrested, and also Hugh Osborne, who arrested him, shall be sent for, to answer the said Contempt and Breach of the Privileges of Parliament.

Smith versus Busby, in Error.

Forasmuch as the Cause between Smith and Busby, upon a Writ of Error, decidable in no other Court but in Parliament, in regard the Suit was commenced by Original Writ, and depending long before the Lords here, it having been sundry Days attended for Argument with Counsel; and being it is a Matter in Law, the Presence of the Judges is thought needful, and so cannot be heard in the Term, without Prejudice to the several Courts of Westm. Hall: It is therefore Ordered by this House, That the said Case shall be argued at this Bar on Thursday Sevennight next, being the 16th of this Instant December; and the Judges are desired to be present at the said Arguments; and further, that the Parties of either Side, or their Counsel, are to attend, and come prepared for arguing and debating of the Points in the said Case, at their Perils.

Commission for the English Commissioners to treat with the Scots Commissioners about Ireland.

Next the Commission was read, to give Power to the English Commissioners of both Houses, to treat with the Scotts Commissioners touching the Affairs of Ireland: videlicet,

"Charles, by the Grace of God, &c. To Our Right Trusty and Right Well-beloved Cousin William Earl of Bedford, and to Our Right Trusty and Right Well-beloved Cousin and Counsellor Robert Earl of Leycester, Lieutenant General and Governor General of Our Realm of Ireland; as also to Our Trusty and Right Well-beloved Edward Lord Howard of Estcrik; and likewise to Our Trusty and Well-beloved Nathaniell Fines, Esquire, Sir William Armyn, Baronet, Sir Phillip Stapleton, Knight, John Hampden, Esquire; Greeting: Know ye, That We, reposing assured Trust and Confidence in your approved Wisdoms, Fidelities, and great Abilities, have nominated, constituted, and appointed you to be Our Commissioners, and by these Presents do give full Power and Authority unto you, or any Three or more of you (whereof you the said Earl of Bedford, Earl of Leycester, or Lord Howard, to be One), to treat and consult with Our Right Trusty and Right Well-beloved Cousins, William Earl of Lothian, and John Earl of Lyndsey, Our Commissioners of Our Scottish Nation, of and concerning Our Irish Affairs, for the quieting and suppressing of all Tumults, Insurrections, and Rebellions, moved and raised in Our Realm of Ireland, and settling of Peace and Tranquillity therein, according to such Instructions and Directions as you shall hereafter from Time to Time receive from Us in that Behalf: Wherefore We will, require, and command you, or any Three or more of you (whereof the said Earl of Bedford, Earl of Leycester, (fn. 1) or Lord Howard to be One), forthwith, with all Diligence, to attend the Execution of this Our Commission accordingly; and whatsoever you shall do in this Behalf, according to the Tenor thereof, this Our Commission shall be your sufficient Warrant and Discharge for the same. In Witness, &c. Witness Ourself at Westminster, the 7th Day of December, in the 17th Year of Our Reign, &c."

Ordered, That this House approves of this Commission.

Lord Mountnorris's Cause.

Next, was read a Letter, dated the 29th of November last, sent from the Council of Ireland, directed to the Lord Keeper, touching the Lord Mountnorris's Business.

The Report concerning the Thirteen Bishops impeached.

The Archbishop of Yorke reported the Conference, which was Yesterday with the House of Commons, concerning the Thirteen Bishops that are impeached.

His Grace reported, "That Mr. Glyn said, That the Knights, Citizens, and Burgesses of the House of Commons, having lately received a Message from their Lordships, that their Lordships had appointed this Day to hear the Plea and Demurrer of the Bishops, and that such of the House of Commons might be there as they thought fitting, commanded him to deliver unto their Lordships these Particulars:

"That the Canons and Constitutions in Question were voted by both Houses, to contain Matters contrary to the King's Prerogative, the Laws of the Land, the Right of Parliament, the Propriety and Liberty of the Subject, and many Matters tending to Sedition, and of dangerous Consequence:

"That thereupon the House of Commons, to the Intent to bring this Matter to Judgement, brought up their Impeachment of the Thirteen Bishops 4 Augusti last, which was read verbatim.

"This was all that was acted 4 Augusti.

"But, lest this Impeachment might prove too general, they brought up a Second Charge, or Impeachment, 13 Augusti; which was read, in hæc verba: videlicet,

A Second Impeachment against the Thirteen Bishops.

"Whereas the Knights, Citizens, and Burgesses of the Commons House of Parliament, have lately impeached the several Bishops hereafter named, that is to say, Walter Bishop of Winton, Robert Bishop of Coventry and Litchfeild, Godfrey Bishop of Gloucester, Joseph Bishop of Exon, John Bishop of Asaph, William Bishop of Bath and Welles, Matthew Bishop of Ely, George Bishop of Hereford, William Bishop of Bangor, Robert Bishop of Bristoll, John Bishop of Rochester, John Bishop of Peterborough, Morgan Bishop of Landaph, before your Lordships, in this Parliament, of several Crimes and Misdemeanors, in contriving, making, promulging, and executing, several Constitutions and Canons Ecclesiastical, and by granting a Benevolence or Contribution to His Majesty, contrary to Law: Now the said Commons do further declare to your Lordships, That the said Canons, Constitutions, and Grant of Benevolence, contained in Two several Books; the One intituled, The Constitutions and Canons Ecclesiastical, treated upon by the Archbishops of Canterbury and Yorke, Presidents of the Convocations for the respective Provinces of Cant. and Yorke, and the rest of the Bishops and Clergy of those Provinces, and agreed upon, with the King's Majesty's Licence, in their several Synods, begun at London and Yorke 1640, and in the Year of the Reign of our Sovereign Lord Charles, by the Grace of God, of England, Scotland, France, and Ireland, the 16th; and the other intituled, A Grant of the Benevolence, or Contribution, to His most Excellent Majesty, by the Clergy of the Province of Cant. in the Convocation, or Sacred Synod, holden at London, Anno Domini 1640.

"Which Things I am commanded by the House of Commons to deliver to your Lordships; and further to declare to your Lordships, that all and every the said Canons and Constitutions, and Grant of Benevolence, and the contriving, making, publishing, and executing of the same, and every of them, were and are contrary to the King's Prerogative, the fundamental Laws and Statutes of the Realm, the Rights of Parliament, the Propriety and Liberty of the Subject, and tending to Sedition, and of a dangerous Consequence, and were so contrived, made, promulged, and executed, to the great Oppression of the Clergy of this Realm and other His Majesty's Subjects, and in Contempt of His Majesty, and of the Laws; and do pray, as they did before, that the said Bishops may be forthwith put to their Answers, in the Presence of the Commons; and that such further Proceeding may be had therein, as to Law and Justice appertains.

"By the bringing of this Second Impeachment, the House of Commons conceive they had satisfied Two main Objections:

"1. That the Book of Constitutions was not particularly instanced upon in the First, which now they punctually deliver, with the Impeachment.

"2. That they had not before charged any Thing in particular, but now they did; that all and every the said Canons and Constitutions, and Grants of Benevolence, etc. were and are contrary to the King's Prerogative, the fundamental Laws of this Kingdom, to the Rights of Parliament, the Propriety and Liberty of the Subjects, and tending to Sedition, and Matters of dangerous Consequence.

"And thereupon they desired the Thirteen Bishops might be put to their Answers; and yet, for all this Desire of the Commons 13 Augusti, they had several Times, which spent almost a Quarter of a Year, given them to answer in.

"Their last and peremptory Day was the 10th of November last; and then they put in no Answer at all, but a certain Writing, which they are pleased to call a Plea and Demurrer.

"Upon Notice hereof, the House of Commons returned an Answer, That whereas they had impeached Thirteen Bishops, whereof One of them had pleaded not guilty, and the rest had neither confessed nor denied the Impeachment, they desired a prefixed Day to descend to Proofs, and to make good the Charge.

"Soon after, they received a Message from their Lordships, that their Lordships had appointed this Day to hear the Demurrer argued.

"Hence it appears that, notwithstanding divers Days are given the Bishops to answer, nothing is brought in but a Plea and Demurrer, which was not to be admitted, for Two several Reasons:

"1. No Defence ought to be made to an Impeachment brought in by the Commons, but in the Presence of the Commons.

"And it ought to be so in all Courts of Justice, in all Manner of Pleadings, Answering and Replying; else Abundance of Mistakes would happen of all Sides, which the Presence of the Parties might prevent.

"As for Example, in this Particular, had the House of Commons been present, there had not happened so many Jeofails and Mistakes.

"And, because Demurrers arise ordinarily from the Uncertainty of the Charge, the Second Impeachment was of Purpose brought in, to avoid Incertainties, because the Particulars omitted in the First were supplied in the Second.

"The Book was appended to the Second, but not to the First Impeachment; but the Second was not entered as it was delivered, and so this Cause of so much Consequence hath been delayed.

"2. Because (posito sed non concesso), put the Case the Commons ought not to be called upon, and to be present at other Defences, yet ought they to be in all Defences made in this Case; because they had, conceptis verbis, in precise Words, desired it, which they did because this is a fecit aut non fecit, a mere Matter of Fact; and the Bishops ought to have clearly answered such a Matter of Fact, that the House of Commons might presently have descended to their Proofs, according to the old Law, Est, non est, de omni re verum est.

"That the House of Commons had commanded the Gentleman to put their Lordships in Mind, that long Time given in Causes of this Nature produces great Inconveniencies; and that this Kind of Proceedings is not precedented in former Parliaments; for this Course would keep all Causes from being heard, and Delinquents from being questioned.

"Super totam materiam, he demanded, in the Name of the House of Commons, One of these Three Things to be granted:

"1. That the Demurrer might be rejected.

"2. That their Lordships would proceed to Judgement.

"3. Or at least that the House of Commons might be admitted to make their Proofs, without further Delay."

This being done, the Counsel for the Bishops were called in, and heard the Second Impeachment of the 13th of August last read; and then the Counsel desired some short Day to consider what Answer the Bishops should make thereunto.

Day given the Bishops to answer.

Hereupon it is Ordered, That the Thirteen Bishops impeached shall put in their Answers to the aforesaid Impeachment on Saturday next, or resolve whether they will abide their Plea and Demurrer.

Message from the Queen, concerning Phillips the Priest.

The Earl of Dorset signified to this House from the Queen, "That Her Majesty, understanding that Robert Phillips is restrained from coming to the Court, and She having Occasion to use him concerning Her Conscience, conceives that the Parliament will think it fit he should attend Her, rather than that She should go unto him; which if the Parliament will give Way that he may come to Her, She will take very kindly."

This House, taking this into Consideration, conceives it fit, That Robert Phillips should wait upon the Queen.

Then a Message was sent to the House of Commons, by Sir Robert Rich and Doctor Bennet:

Message to the H. C. for a Conference concerning the Queen's Message about Phillips; and pressing Men for Ireland.

To desire a present Conference (if it may stand with the Conveniency of their House), by a Committee of both Houses, touching a Message received from the Queen, about Robert Phillips the Priest; and also touching the Bill concerning the pressing of Soldiers for Ireland.

The Matter of the Conference was to be:

Subject of the Conference.

"To let the House of Commons know, That the Queen, understanding that Robert Phillips is restrained from coming to the Court, and She having Occasion to use him concerning Her Conscience, conceives that the House will think it fit he should attend Her, rather than that She should go unto him: The Lords are of that Opinion; but, in regard the House of Commons did desire he should not come to the Court, therefore the Lords do acquaint them therewithall."

The Second Part of the Conference was, To acquaint the House of Commons with the Amendments and Alterations in the Bill for Pressing.

Day given the King's Counsel about it.

Ordered, That Mr. Attorney General and the King's Counsel do provide themselves to argue the Clause in the Bill for pressing of Soldiers; and, for their better preparing for this Business, they are to be excused from attending this House in the mean Time.

Ld. Mountnorris's Cause.

Ordered, That the Lord Mountnorris's Cause shall be heard this Day Sevennight; and that Copies shall be given unto him of the Letters that lately came from Ireland, concerning his Business.

The Messengers return with this Answer from the House of Commons:

Answer from the H. C.

That they will give a present Meeting, in the Painted Chamber, as is desired.

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

Then

Adjourn.

Dominus Custos Magni Sigilli declaravit præsens Parliamentum continuandum esse usque in diem Mercurii, videlicet, 8^m diem instantis Decembris, hora 1^a post meridiem, Dominis sic decernentibus.