House of Lords Journal Volume 7: 12 February 1645

DIE Mercurii, 12 die Februarii.

PRAYERS, by Mr. Wilkinson.

Ds. Grey de Warke, Speaker.

The Speaker acquainted the House, "That he hath received a Letter from the Commissioners at Uxbridge;" which was opened; and the Letter and inclosed Papers were read, as followeth:

Letter from the Commissioners for the Treaty, with Papers relative to the Propositions.

"My Lord,

"You will see, by the Papers herewith sent you, how the Three First Days assigned for the Treaty upon the Propositions for Ireland have been spent. The Two last shew the Result of our Debate upon them, which continued until Twelve of the Clock last Night. Immediately after, we delivered in a Paper upon the Proposition for Religion, which this Day comes in its Second Course to be treated upon.

"The Copies of the Letters mentioned in the last Paper, being very long, and not yet transcribed, shall be sent you by the next.

"Your Lordship's Humble and faithful Servants.

Uxbridge, 11 Feb. 1644.

"A. Northumb.
Salissbury.
Pembrooke & Mount.
B. Denbigh."

Next, the several Papers were read.

(Here enter them.)

Message from the H. C. to to sit a while.

A Message was brought from the House of Commons, by Sir Robert Pye Knight, and others:

To desire their Lordships will please to sit a while, for they shall (fn. 1) have Occasion to bring up a Message of great Importance.

The Answer returned was:

Answer.

That this House will sit a while, as is desired.

Report concerning Lady De la War's Assessment.

The Report from the Committee at Haberdashers Hall was read, concerning the Case of the Lady De la Ware:

"The Lord Colraine being assessed at Four Thousand Pounds for his Twentieth Part, and the most Part thereof being unpaid; the Committee of Lords and Commons sitting at Haberdashers Hall were informed, That the Lady De la Ware was indebted to the Lord Colraine about Three Thousand Pounds; whereupon her Ladyship was desired to appear before the Committee, to satisfy the said Debt, or shew Cause to the contrary. The Lord De la Ware, Son to the said Lady, appeared, and desired Fourteen Days that her Ladyship might appear, which was granted; but as yet her Ladyship hath not appeared."

Hereupon this House Ordered, To hear what the Lady De la Ware will offer to this House, To-morrow Sevennight, concerning this Business.

Report of the Conference concerning the Ordinance for putting the Army under the Command of Sir T. Fairfax.

The Lord Admiral reported the Effect of the Conference Yesterday with the House of Commons, concerning the Ordinance for the new Model of the Army: (Here enter the Report.) And it is Ordered, That the Consideration of this Business shall be To-morrow Morning.

Pickering, Smyth, & al. versus De La Salle, Mathewes, & al.

Upon reading the Petition of Thomas Smyth, Phineas Andrewes, Robert Toakeley, and James Pickering, on Behalf of themselves and others, Owners of the Ship called The Unity, (fn. 2) to the Petition of Peter De La Salle and Peter Mathewes, Merchant Strangers, &c. It is Ordered, That Peter De La Salle and Peter Mathewes shall have a Copy of this Petition, and return their Answer to the same; and then this House will take the Business further into Consideration.

Ives to be attached.

Ordered, That Robert Ives shall be attached by the Gentleman Usher attending this House, and keep him in safe Custody, until he be examined by the Committee of both Kingdoms, concerning his being a principal Actor and Instigator of Multitudes of People to go to the Commissioners at Uxbridge.

Message from the H. C. to expedite the Ordinance for Sir T. Fairfax to command the Army; and with Orders.

A Message was brought from the House of Commons, by Sir Henry Mildmay Knight, and others:

To desire their Lordships will please to give Dispatch in the Ordinance concerning the new Model of the Army.

2. To desire Concurrence in an Order concerning paying Three Hundred and Seventy-five Pounds, for Shoes, for Sir Wm. Waller's Forces. (Here enter it.)

Agreed to.

3. To desire Concurrence, (fn. 3) That Edward Payne Esquire may be nominated and (fn. 4) approved to be High Sheriff of the County of Sussex.

Agreed to.

4. An Order to pay Two Hundred and Forty Pounds, out of Haberdashers Hall, for Services done for the Public, to the Commissioners for Martial Affairs.

(Here enter it.)

Agreed to.

The Answer returned was:

Answer.

That this House will take the Ordinance for the new Army into speedy Consideration, and send an Answer by Messengers of their own; as to all the rest of this Message, their Lordships do agree to them.

Paper from the Parliament's Commissioners, for the Treaty with the Rebels in Ireland to be annulled; and for the War there to be managed by both Houses.

"7 Februarii, 1644.

"We desire that an Act of Parliament be passed, to make void the Cessation of Ireland, and all Treaties with the Rebels without Consent of both Houses of Parliament; and to settle the Prosecution of the War of Ireland in both Houses of the Parliament of England, to be managed by the joint Advice of both Kingdoms; and His Majesty to assist, and to do no Act to discountenance or molest them therein.

"By Command of the Commissioners for the Parliaments of both Kingdoms.

"Exam'r,

"John Thurloe.
John Cheislie."

King's Commissioners desire to know if any Thing further is to be offered on this Head.

"7 Februarii, 1644.

"We desire to know, whether the Paper we have received from your Lordships contain in it all the Demands your Lordships are required by your Instructions to insist upon concerning Ireland; which if it doth, we are ready to enter upon that Debate; but, if it doth not, we then desire to receive all the Propositions your Lordships intend to make concerning Ireland together, being confident that, upon a whole View of the Business, we shall give you full Satisfaction in that Argument.

"By Command of His Majesty's Commissioners.

"Exam'r,

"John Thurloe Secretary.
Wm. Dugdale.
Daniel Earle Secretary.
Nic. Oudart."

Parliament's Commissioners desire an Answer to these Propositions first.

"7 Februarii, 1644.

"We are to insist upon other Things concerning Ireland; which, being Parts of other Propositions, we conceive not so proper to give your Lordships till we have received your Answers to our Paper formerly delivered; and we are ready, by present Conference, to satisfy any Doubts that remain with your Lordships concerning that Paper.

"By Command of the Commissioners for the Parliaments of both Kingdoms.

"Exam'r,

"John Thurroe.
John Cheisley."

Parliament's Commissioners desire the Treaty concerning Ireland to be confirmed; the War there to be managed by the joint Advice of both Kingdoms; and the Officers there to be appointed by the Parliament here.

"7 Februarii, 1644.

"We desire that an Act be passed, in the Parliaments of both Kingdoms respectively, to confirm the Treaty concerning Ireland, of the 6th of August, 1642, (fn. 5) which Treaty we herewith deliver; and that all Persons, who have had any Hand in plotting, designing, or assisting, the Rebellion of Ireland, may expect no Pardon, and their Estates to pay Public Debts and Damages; and that the Commissioners, to be nominated as is appointed in the Fifteenth Proposisition, may order the War of Ireland, according to the Ordinance of the 11th of April, 1644, which we herewith deliver; and to order the Militia, and to conserve the Peace, of the Kingdom of Ireland; and that, by Act of Parliament, the Deputy, or Chief Governor or other Governors of Ireland, be nominated by both Houses of the Parliament of England, or, in the Intervals of Parliament, by the said Commissioners, to continue during the Pleasure of the said Houses, or, in the Intervals of Parliament, during the Pleasure of the said Commissioners, to be appointed or disallowed by both Houses at their next Sitting; and that the Judges of both Benches and of the Exchequer in Ireland be nominated by both Houses of Parliament, to continue (quam diu bene se gesserint); and, in the Intervals of Parliament, by the aforesaid Commissioners, to be approved or disallowed by both Houses at their next Sitting.

"By Command of the Commissioners for the Parliaments of both Kingdoms.

"Exam'r,

"John Thurloe.
John Cheisley."

King's Commissioners desire an Explanation of some Things in the last Paper.

"9 Februarii, 1644.

"We desire to know, what your Lordships intend or expect by those Words in your First Paper concerning Ireland ["and His Majesty to assist"]; since you propose to have the Prosecution of the War of Ireland to be settled in both Houses of the Parliament of England, and to be managed by the joint Advice of both Kingdoms.

"By Command of His Majesty's Commissioners.

"Examinatur,

"John Thurloe Secretary.
Wm. Dugdale.
Daniel Earle Secretary.
Nic. Oudart."

Parliament's Commissioners Answer.

"9 Februarii, 1644.

"By the Words in our Paper concerning Ireland ["and His Majesty to assist"], we conceive, is to be understood the giving of His Royal Assent to such Acts of Parliament as shall be presented unto Him by both Houses, for raising of Monies from the Subject, and for other Things necessary to the Prosecution of the War in Ireland; and to be further aiding, by His Power and Countenance, in whatsoever shall be requisite for the better carrying on of that War.

"By Command of the Commissioners for the Parliaments of both Kingdoms.

"Examinatur,

"John Thurloe.
Jo. Cheisley."

King's Commissioners justify the Cessation in Ireland.

"10 Februarii, 1644.

"We conceive that His Majesty had and hath Power to make a Cessation in Ireland; and having, upon just Grounds, and for the Good and Safety of the Protestant Subjects there, and for the Preservation of that whole Kingdom, consented to such a Cessation, we desire to be informed by your Lordships how that Cessation can be declared void, without a Breach of Faith and Honour in His Majesty; and we are ready, by Conference, particularly to inform your Lordships of the Motives which induced His Majesty to consent to that Cessation.

"By Command of His Majesty's Commissioners.

"Exam'r,

"John Thurloe Secretary. Wm. Dugdale.
Daniel Earle Secretary. "Nic. Oudart."

Parliament's Commissioners question the King's Power to make it.

"10 Februarii, 1644.

"We conceive His Majesty had not Power to make the Cessation in Ireland, nor had any just Grounds to do the same; and therefore we insist, as in our former Paper, that an Act of Parliament be passed, to make void the Cessation of Ireland; and conceive that His Majesty is bound in Honour and Justice to consent unto the same; and we are ready to confer with your Lordships, as is desired, and to receive your Lordships fuller Answer to this and the other Particulars expressed in our Paper concerning Ireland.

"By Command of the Commissioners for the Parliaments of both Kingdoms.

"Exam'r,

"Daniel Earle.
John Cheisley."

King's Commissioners further justify it, and will give a full Answer to all the Particulars relative to Ireland.

"10 Februarii, 1644.

"We have received no Satisfaction or Information, in your Lordships Debate, to alter our Opinions of His Majesty's Power to make the Cessation in Ireland; and having carefully perused and considered the Statute alledged by your Lordships, we cannot find any particular Clause in that Statute, neither have your Lordships mentioned any (though often desired by us so to do), whereby His Majesty's Power to make a Cessation there is taken away; and therefore we are still of Opinion, that His Majesty had full Power to make and consent to that Cessation; and we conceive that we have given your Lordships an Account of very just Grounds to induce His Majesty to do the same, it appearing to His Majesty, by the Letters and Advice from the Lords Justices and Council of that Kingdom, and of the Officers of His Army there (which we have read to your Lordships, and of which Letters and Advices we now give Copies to your Lordships), that His Majesty's good Protestant Subjects of that Kingdom were in imminent Danger to be overrun by the Rebels, and His Army to be disbanded, for Want of necessary Supplies; and that there was no such probable Way for their Preservation as by making a Cessation; neither have your Lordships given us any satisfactory Reasons against the making the said Cessation, or made it appear to us that that Kingdom could have been preserved without a Cessation; and therefore we cannot apprehend how His Majesty can with Justice and Honour declare the same to be void.

"We shall be ready, against the next Time assigned for the Treaty touching Ireland, to give your Lordships a further Answer to your Propositions concerning that Argument; the Treaty concerning Ireland, of the 6th of August, 1642; and the Ordinance of the 11th of April, 1644 (which we did never see till your Lordships delivered us Copies of them); making so great an Alteration in the Government there, that we cannot be prepared for the present to make a full Answer to those Propositions.

"By Command of His Majesty's Commissioners.

"Exam'r,

"John Thurloe Secretary.
Wm. Dugdale.
Daniel Earle Secretary.
Nic. Oudart."

Parliament's Commissioners insist that the King had not Power to grant the Cessation, and that it was not necessary.

"10 Februarii, 1644.

"It is very contrary to our Expectation to find your Lordships unsatisfied, after the Arguments and Reasons alledged by us, that His Majesty had not Power to make that Cessation with the Rebels of Ireland; and that, upon your Perusal of the Statute, it appears not to you, that His Majesty had no Power to make that Cessation: It is strange to us, your Lordships should forget all the other Arguments used by us from the Common Law, from other Proceedings in Parliament, and Circumstances as this Case stands, on which we still insist; and do affirm, that His Majesty had no Power to make or consent to that Cessation. We do not see any just Grounds, in the Copies of the Letters given us by your Lordships, for His Majesty's assenting to the Cessation; nor do we know by whom those Letters were written: We are therefore still clearly of Opinion, notwithstanding all your Lordships have alledged, that it was unfit for His Majesty to agree unto that Cessation, being destructive to His good Subjects, and to the Protestant Religion there, and only for the Advantage of the Popish Rebels, to the high Dishonour of God, the Disservice of His Majesty, and evident Prejudice of His Three Kingdoms. We therefore again desire your Lordships full Answer to what we have delivered to you concerning Ireland.

"By Command of the Commissioners for the Parliaments of both Kingdoms.

"Exam'r,

"John Thurloe.
Jo. Cheisly."

Report of the Conference concerning the Ordinance for putting the Army under the Command of Sir Thomas Fairfax, and for new modeling it.

"At a Conference of both Houses, in the Painted Chamber, 11 Februarii, 1644.

"Mr. Lisle, a Member of the Commons House, delivered a Message from the said House to their Lordships, touching the Ordinance for the Army, in Substance as followeth:

"My Lords,

"This Conference was desired with your Lordships, concerning the new. Model of the Army, wherein the House of Commons doth agree to most of those Provisos which were sent by your Lordships to their House; only, in regard they do think fit to offer some Alterations to your Lordships in the Three First Provisos, they have commanded me to represent their Reasons to your Lordships concerning these Alterations:

"The First Alteration is in your Lordships First Proviso, which I shall First read:

["Provided also, That all Colonels, Lieutenant Colonels, Serjeant Majors, and Captains, that shall be employed in this Army, may be such as shall be nominated, appointed, and approved of by both Houses of Parliament."

"The House of Commons desire it may be thus amended:

["Provided also, That the Commander in Chief, nominated in this Ordinance, shall have Power to nominate all Colonels, Lieutenant Colonels, Serjeant Majors, and all Captains, out of any the Forces under the Command of the Parliament, to be approved of by both Houses of Parliament."]

"My Lords, if you please to observe, in this Proviso thus amended, there be these Two Alterations:

"First, That the Commander in Chief shall have Power to nominate all Colonels, Lieutenant Colonels, &c.

"Secondly, That the Commander in Chief shall have Power to nominate these Officers out of any the Forces under the Command of the Parliament.

"My Lords, the House of Commons have commanded me to offer these Reasons to your Lordships in Maintenance of the First Amendment:

"They do conceive, that, by giving of this Power to the Commander in Chief to nominate their Officers, will more oblige his Officers, and better enable him to carry on the Work.

"They do conceive, that there can be no Inconvenience in giving him this Power of nominating, in regard both Houses of Parliament are to approve of the Officers nominated by the Commander in Chief.

"And they do observe, that this Power of nominating Officers is no unusual or extraordinary Power; for this Power of nominating is granted constantly, and usually, to every Commander in Chief.

"My Lords, they have commanded me further to observe these Reasons, in Maintenance of the Second Amendment:

"My Lords, they do intend principally, that these Officers shall be nominated by the Commander in Chief, out of any the Forces under Command of the Parliament, whether out of my Lord General's Army, or that under Command of the Earl of Manchester, or Sir Wm. Waller: and if this Clause had not been inserted, we could not have nominated any of those Officers.

"And the Clause is more general, because the Commander in Chief will have the greater Latitude, if he desire it, to nominate such Persons for Officers as he shall think faithful, and fittest for Service.

"Your Lordships Second Proviso is thus:

["Provided further, That all Commanders, Officers, and Common Soldiers, that shall be employed in this Army, shall take the Solemn League and Covenant of both Kingdoms, within Twenty Days next after Publication thereof; and shall submit to the Form of Church Government that is already voted by both Houses of Parliament."]

"My Lords, the House of Commons desire it may be thus amended:

["Provided further, That all Commanders and Officers, that shall be employed in this Army, and to be approved of by both Houses of Parliament, as aforesaid, shall take the National League and Covenant of both Kingdoms, within Twenty Days next after such Approbation; and all other Officers, to be employed as aforesaid, shall take the said Solemn League and Covenant within Twenty Days after they shall be listed in the said Army: And be it Ordained, That all the Common Soldiers of this Army shall likewise take the same, at such Time, and in such Manner, as shall be in that Behalf directed by both Houses of Parliament."]

"Wherein your Lordships may observe these Three Alterations:

"First, in the Point of Time when the Officers shall take the Covenant.

"Secondly, in Point of Time when the Common Soldiers shall take the Covenant.

"Thirdly, in leaving out this Clause, ["and shall submit to the Form of Church Government that is already voted by both Houses of Parliament."]

"My Lords, for the First Amendment, they present these Reasons:

"They do observe, that in your Lordships Proviso the Time is not certainly expressed; for your Lordships Expression is, ["they shall take the Covenant within Twenty Days after Publication thereof"]; and therefore, to make it more certain, they have added this Clause, ["that they shall take the Covenant within Twenty Days next after the Approbation of both Houses."]

"And not only the Commanders and Officers approved by your Lordships, but all others, shall take the Covenant; and therefore it is added, ["that all Officers whatsoever are to take the Covenant within Twenty Days after they shall be listed in the said Army."]

"My Lords, concerning the Amendment for the Common Soldiers in Point of Time, they have made it on this Ground: They do conceive that you may be inforced to press some Soldiers, to serve you in this new Model; and if you should be inforced thereunto, these Soldiers may make their Excuse of not serving the Parliament, on Pretence they cannot take the Covenant.

"They do observe, besides, that the recruiting of the Army is uncertain; they do not know the certain Time, and think it not convenient that, before the Army be recruited, they should set down any certain Time for the Common Soldiers; but that it be referred to the Wisdom of both Houses.

"For the leaving out of the last Clause, they conceive that on this Consideration there can be no Advantage by the last Clause, if the Covenant be taken according to the Intent of this Ordinance.

"And they leave it out the rather, because the Resolutions of both Houses concerning Church Government are not yet perfected, their Votes not yet complete.

"I shall now, my Lords, read to your Lordships the Third Proviso:

["Provided also, That every Lord Lieutenant shall, in their several and respective Counties, be of the Committees now appointed by this Ordinance."]

"The House of Commons do desire that this Proviso may be amended thus:

["Provided also, That every Lord Lieutenant, who is not disabled by Ordinance of Parliament to sit in the House of Peers, shall, in their several and respective Counties, be of the Committee now appointed by this Ordinance."]

"Which Amendment will stand with so much Reason, that they conceive they need not offer any Reasons.

"To all the rest, they agree."

Order for 375 l. to Mings and Ellis, for Shoes.

"It is this Day Ordered, by the Lords and Commons in this present Parliament assembled, that the Committee of Lords and Commons sitting at Habberdashers Hall do pay, or cause to be paid, unto John Mings and Jenkin Ellis, within Two Months after the Date hereof, the Sum of Three Hundred Seventy and Five Pounds, for Three Thousand Pair of Shoes, sparabled, for the Use of the Forces designed for the present Service under Sir William Waller; and for their so doing, this shall be their sufficient Warrant."

Order for 240 l. to the Commissioners for Martial Affairs.

"It is this Day Ordered, by the Lords and Commons, That the Committee at Habberdashers-hall do forthwith pay unto Mr. John Milles Two Hundred and Forty Pounds, to be by him disposed of and paid, according to former Appointment of Commissioners for Martial Affairs, to such Persons as have been employed by them in the Public Service of that Court, and according to such Proportions and Allowances as the said Commissioners have by their Orders limited and appointed."

Order to establish Elliot's Ordinance.

"Whereas, on an Ordinance of both Houses of Parliament, in Consideration of the Losses sustained by John Elliott Esquire, for his adhering to the Parliament, and otherwise, dated the 10th of June, 1644, there hath been Doubt raised, whether the said Ordinance be valid, for that it's not published in Print, according to a Clause therein: Be it therefore Ordained, by the Lords and Commons assembled in Parliament, That the said John Elliott have as much Benefit and Privilege by the said Ordinance unprinted, as he should have had, had it been published in Print the very Day of the Date thereof; any Thing in the said Ordinance to the contrary notwithstanding."

Smith, Pickering, & al. versus Peter De La Salle and Matthews, & al.

"The humble Answer of Thomas Smith, Phinees Andrewes, Robert Toakeley, and James Pickering, on the Behalf of themselves and others, Owners of the Ship called The Unity, to the Petition of Peter De La Salle and Peter Mathewes, Merchants Strangers, by them exhibited on Behalf of themselves and Bernard Duke of Espernoone in the Kingdom of France.

"The Respondents, in all Humbleness, and in Obedience to an Order of this most Honourable House of the Tenth of this Instant February, for Answer to the said Petition, say, That it appears by the said Petition, that these Defendants have recovered against the Duke of Espernoone, in an Action upon the Case at the Common Law, by these Defendants brought against the said Duke, for not performing his Promise, in paying the Freight of the said Ship, and returning of her safe unto these Defendants, the Sum of Eight Thousand Five Hundred Pounds Damages; for which, and for the Costs of Suit amounting to One Hundred and Forty Pounds, they have a Judgement against the said Duke; and that the Petitioner De La Salle is charged in Execution, as Bail for the said Duke; and that there is a Commission of Bankrupts sued out against the Petitioner De La Salle (not warranted by the Law, as is pretended); and that the Duke of Espernoone is dismissed in Chancery; and the Petitioners do, by their Petition, upon Pretence that the Duke of Espernoone, in the Action against him at Law, was condemned without any Witnesses examined by him, pray an extraordinary Relief, which, as these Defendants are advised by their Counsel, they cannot have upon this their Petition, for these ensuing Reasons:

"1. For that, by the Laws and Statutes of this Realm, no Judgement shall be avoided but by Error or Attaint; and the Scope of the Petition is, to avoid Two Judgements, the One given against the Duke in the Action brought by these Defendants against him, and the other against the Petitioners as Bail.

"2. For that, as to the Proceedings that were in Chancery, the Petitioners do not complain of any Injustice or Irregularity, neither was there in Truth any; for these Defendants shall and will be ready to make it appear to this Honourable House, that the Proceedings in Chancery were just and regular, according to the ordinary Rules of Justice, and Proceedings of that High and Honourable Court.

"3. Whereas the Petitioners pretend that the Duke and the Petitioners have no Remedy against the said Verdict and Judgement; these Defendants are advised by their Counsel, that if the Verdict were obtained by such Mistake of the Witnesses as is alledged, that the Duke hath good Remedy against the said Witnesses, by Way of Action, or Indictment of Perjury; or, if the Jurors have given excessive Damages against the said Duke, that the said Judgement may be reversed by Attaint.

"4. As the Petitioners have set forth their Case upon the said Petition, they have no Remedy against these Defendants either in Law or Equity, but are to be relieved by the Legislative Power; wherein, as these Defendants are advised by their Counsel, the Petitioners are to proceed by Ordinance or Bill in Parliament, and not by Petition before your Lordships.

"5. As to the Commission of Bankrupts, that the Petitioners pretend is against Law; which if it be, these Defendants cannot have any Fruit thereof: But these Defendants are advised by their Counsel, that the said Commission is legally and warrantably sued out; and therefore they hope they shall have the Benefit thereof, according to Law.

"For all which Reasons, these Defendants humbly pray, that the said Petition may be dismissed this most Honourable House; and these Defendants left to their ordinary and legal Proceedings.

"And the Defendants shall most humbly pray, &c.

"Tho. Smith.
James Pickering.
William Rand.
P. Andrew."

Adjourn.

House adjourned till 9^a cras.