Journal of the House of Lords: Volume 4, 1629-42. Originally published by His Majesty's Stationery Office, London, 1767-1830.
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DIE Jovis, videlicet, 15 die Aprilis.
A Message was sent from the House of Commons, by Mr. Capell:
Message from the H. C. for a Conference about Earl Strafford.
To desire a present Free Conference, by a Committee of both Houses, if it may stand with their Lordships Conveniency, concerning the Proceedings against the Earl of Strafford.
The Answer to the said Message was:
That their Lordships will give a Meeting presently, as is desired, in the Painted Chamber.
Lords to report the Conference.
The Lord Privy Seal, Lord Steward, Earl of Bath, and the Earl of Warwicke, were appointed to report the Conference.
The House was adjourned during Pleasure, and the Lords went to the Conference; which being ended, the House was resumed, and the Earl of Bath reported the Effect of the Conference, as followeth: videlicet,
Report of the Conference about allowing the E. of Strafford Counsel in Matter of Law.
"That your Lordships were pleased the last Night to send Notice to the House of Commons, that you were resolved to hear the Counsel of the Earl of Strafford speak in Matter of Law in Westm. Hall Tomorrow Morning. The House of Commons took into Consideration this Part of your Lordships Message, and find that it came very suddenly for so great a Matter unto them, it being Five of the Clock last Night before they received the Message. Besides, some Difficulties occurred to them, as that the Matter of Law is subsequent in Consideration to the Matter of Fact; and they know not that your Lordships are come to any Resolutions what the Fact is upon the Proofs made by them.
"The Articles that are delivered are of several Natures; some are directly charged as High Treason, which they think no Man can speak against, being positively laid; others are of another Nature; and how far they will be Treason on that Part of the Subversion of the fundamental Laws of the Kingdom, is the Question. If the Counsel must speak on the latter Part, they must have a Case made to them before they can speak; else they must be admitted to make a Case themselves. If they shall be admitted to make a Case, of what ill Consequence may it be, that Counsel by him retained should be at Liberty to take Advantage to ravel into the Evidence, and make a Case in so great an Auditory? which when it is once represented, though the Commons may satisfy your Lordships (fn. 1) of the Truth, yet they cannot gather up the Misreports that may be made of the Case, when it hath been delivered before your Lordships; therefore that occurs as a Matter of great Consideration and Weight to the Commons, how far your Lordships shall hear Counsel before a Case be stated, and before you have directed to what they shall speak.
"Another Thing that came into their Consideration is, the Way of Proceeding hitherto had, and whether the proceeding in a Judgement, or upon a Bill, might most conveniently and properly be taken; for, if it be to demand Judgement of your Lordships, no Man can say against what hath been done; but, if it be by Way of Bill, there must be a Guilt, a Fact, before there can be a just Attainder; a Fact must appear, before there can be a just Judgement; it must appear to them that concur in the Bill, that is, to both Houses, your Lordships, and the House of Commons; and that Course hath been taken, that the Evidence hath been given in Effect in Presence of both Houses, so that the Proceedings by Way of Bill, or by Way of Judgement, do not oppose that which your Lordships and the House of Commons have done.
"That, these Things put together, and the Consideration of the Suddenness of the Time of Notice to hear Counsel, have put so great a Difficulty on the House of Commons, that they cannot on the sudden fall into any certain Resolution at all, of which they thought fit to acquaint your Lordships, and that they are not fit to hear Counsel at this Time."
This being done, the House considered what Answer was fit for the present to return to the House of Commons; and thought requisite to let them know, That their Lordships will take into Consideration what was delivered at this Conference; and that their Lordships have put off the Hearing of the Earl of Strafford's Counsel for this Day; and when they have debated the Business, and grown to Resolutions, they will send to desire a Free Conference with them.
Earl of Strafford remanded to The Tower.
Ordered, That the Earl of Strafford be sent back again to The Tower, there to remain until the further Order of this House be known.
Stating a Case for his Counsel to speak to, in Point of Law.
The House was put into a Committee during Pleasure, to debate that Part of the Message concerning the stating of a Case for the Earl of Strafford's Counsel to speak to in Matter of Law.
At length the House was resumed; and it was agreed, That the further Debate should be referred until this Afternoon.
The Lord Chief Justice of the Common Pleas sat Speaker.
E. of Cleveland versus Lord Philip Herbert.
Ordered, That the Counsel of the Earl of Cleveland and the Lord Phillip Herbert's and others, shall be heard this Afternoon, the First Cause peremptorily.
Dominus Capitalis Justiciarius de Communi Banco, Locum tenens Domini Custodis Magni Sigilli, declaravit præsens Parliamentum continuandum esse usque in post meridiem hujus diei, hora 2a, Dominis sic decernentibus.
E. Cleveland versus Lord Philip Herbert, touching Stepney and Hackney.
The Counsel of the Earl of Cleveland was at Bar, 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 the Order of the 8th of January 1640; and it was desired by the Counsel, that the Lord Phillip Herbert and others might not have the Possession of the said Lands, but that the Cause may be left to a Trial at Law.
The Counsel of the Lord Phillip desired the Possession, according to the Order; and that the Earl of Cleveland may go on to pass his Bill; and when he hath done that, the Lord Phillip Herbert and others will resign up the Possession, upon a full Satisfaction of what Monies is due unto them.
The Counsel were commanded to withdraw; and it was Ordered, That the Counsel on both Sides shall be heard again at this Bar To-morrow in the Afternoon, at Two a Clock peremptorily.
It was signified to the House, That the House of Commons were in the Painted Chamber, ready for the Conference.
Conference about the Treaty with the Scots.
Hereupon the Earl of Bristoll was appointed to deliver to the Commons the Papers concerning the Scottish Business; and to give an Account of the Proceedings in the Treaty, and what he was commanded to deliver from His Majesty. Likewise the Earl of Essex and the Earl of Holland were to speak at the Conference what they said here Yesterday.
The House was adjourned during Pleasure, and the Lords went to the Conference; which being ended, the House was resumed.
Then a Message was sent to the House of Commons, by Mr. Justice Foster and Mr. Justice Heath:
Message to the H. C. for a Conference about the Earl of Strafford.
To desire a present Free Conference (if it may stand with their Conveniency), by a Committee of both Houses, concerning the Proceedings against the Earl of Strafford.
Heads of the Conference and Reporters appointed.
The Lord Privy Seal, the Earl of Bath, the Lord Viscount Saye, and the Lord Savill, were to report the Conference; and to let the House of Commons know, "That their Lordships have resolved to hear the Earl of Strafford's Counsel speak in Matter of Law, Tomorrow Morning, in Westm. Hall; and, if the Counsel shall run into Matter of Fact, and not keep them to the Matter of Law, they shall be held to it."
The Answer to the said Message was:
Answer from the H. C.
That the Commons will give a Meeting presently, as is desired.
The House was adjourned during Pleasure, and the Lords went to the Conference; and being returned, the House was resumed; and the Earl of Bath reported:
"That the Commons are gone to their House, and will send an Answer to the Conference in convenient Time."
Dominus Capitalis Justiciarius de Communi Banco, Locum tenens Domini Custodis Magni Sigilli, declaravit præsens Parliamentum continuandum esse usque in diem Veneris, videlicet, 16m diem instantis Aprilis, hora nona, Dominis sic decernentibus.