House of Lords Journal Volume 4: 13 March 1641

DIE Sabbati, videlicet, 13 die Martii.

PRAYERS.

L. Fielding's Petition.

The Petition of the Lord Feilding was read, and Ordered to be referred to the Committee for Petitions.

Marquis of Huntly discharged by Privilege.

The Lord Chamberlain signified to the House, by His Majesty's Command, That the Lord Marquis Huntley (being His Majesty's Servant) hath been lately arrested in Westm. contrary to the Privileges of Parliament. Hereupon this House did Order, That the said Lord Marquis Huntley be forthwith discharged of the said Arrest; and the Bailiff and Under-bailiff of Westm. be sent for, to appear before this House, to answer the said Arrest.

Pool, Hayward, and Sach, to be discharged.

Upon the Report of the Earl of Warwicke, That Jonathan Poole, Hayward, and Sach, of Halsteed, in the County of Essex, have made their Submission, according to the Order of this House, as appeared by a Certificate sent to his Lordship from the Justices of Peace adjoining to the said Town; it was Ordered by this House, That all Proceedings in the Country against them, for the said Fact, shall be stopt, and no further Proceedings therein to be against them, because they have suffered here for the same Cause.

Report and Order concerning Walker and Sir John Lamb.

Upon the Report of the Lords Committees for Abuses in Courts of Justice, &c. "That Walter Walker, Doctor of Law, being seised, for Term of his Life, of the Office of Commissary of Leycester, and the Office of Official of the Archdeaconry of Leycester, was disturbed therein by Sir Jo. Lambe, Knight. Hereupon Walker taking his Remedy at Common Law (by which Patents for Life, being Freehold, are only triable) Sir Jo. Lambe tried all Ways he could to divert and stop the Trial at the Common Law; as by his Suggestions he procured Commands to be signified in His Majesty's Name by the then Secretary Dorchester, to the Judges, to command them to give no Judgement against him; upon which the Proceedings at Law were stopped, and Judgement respited, till Means were used to get the said Commands taken off; and then it was adjudged, That Sir Jo. Lambe had no Right; and Judgement was given against him. Notwithstanding, Sir Jo. Lambe used Means in the Chancery to get his Possession still continued to him, which made Walker bring a real Action against him; and at Leycester Assizes it was adjudged for Walker; but, to avoid a final Judgement, Sir Jo. Lambe procured Secretary Windebanke to signify, under a Petition, His Majesty's Pleasure, in Nature of an Injunction at Law, commanding Walker and his Counsel to surcease absolutely all further Prosecution at the Common Law against Sir Jo. Lambe, until Two Suits in the Starchamber were finally heard and determined, whereunto Walker was neither Party nor privy to; since which Time, Eight Years, Sir Jo. Lambe hath and still doth hold the said several Offices, and hath taken the Profits to himself, worth One Hundred and Fifty Pounds per Annum, by which Means the said Mr. Walker hath sustained Fifteen Hundred Pounds Loss and Damages. The Opinion of the Lords Committees were, That Sir Jo. Lambe, for the Criminal Part of his Offence, be left to the further Consideration and Proceedings of this House; and for the Civil Part of his Charge, the Lords have thought it fit that Sir Jo. Lambe do pay to the said Doctor Walker Twelve Hundred and Fifty Pounds, by Way of Damages."

But the House resolved nothing herein at this Time.

A Message from the House of Commons, by Mr. Peirpointe:

Message from the H. C. concerning the Trial of E. Strafford.

To desire a Free Conference, by the same Committee as formerly, touching the Trial of the Earl of Strafford; and this to be at such convenient Time as their Lordships shall please to appoint.

Answer.

The Answer to the aforesaid Message was: That the Lords of the same Committee as formerly will give a Meeting presently, in the Painted Chamber.

Nash versus Kynaston, in Error.

Ordered, That Tho. Nash shall assign Errors, in a Writ of Error against Charles Kynaston, on the 20th Day of this Instant March; and, if the said Nash do not assign Errors peremptorily at that Time appointed, then he is to be Non-suit; and the Transcript of the Record brought into this Court from the Court of King's Bench shall be remitted into the said Court, that so the said Charles Kynaston may there take out Execution upon his Judgement, the said Writ of Error superseded thereupon notwithstanding.

After this, 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:

Report of the Conference, concerning the Trial of the E. of Strafford.

1. Concerning the Place for Trial of the Earl of Strafford, the House of Commons do conceive, That, although the Bar in the Lords House be removed, and some Members of their House be absent, and the Room without the Bar scaffolded, as the Lords proposed; yet it will be much too strait to contain all the Members of the House of Commons; therefore desire their Lordships will be pleased to direct some other more convenient Place for the Trial; and for Precedents concerning the Place, their Lordships took Notice, that the Parliament hath sat in The Blanch Chamber, as they did in the Case of Gomines, 1 R. II; but, the Parliament being summoned to appear at the King's Palace at Westm. if One Room there be not convenient, another may be desired, that shall be more convenient.

2. Concerning the Persons: The Earl of Strafford being impeached by the Commons, they conceive it appertains to their House to resolve in what Manner they will be present at the Trial; and that of Right they may come as a House if they please; but, for some special Reasons upon this Occasion, they are resolved to send their own Members as a Committee of the whole House, authorized by the House to be present at the Trial to hear, and some particular Persons of themselves to manage the Evidence.

3. By that Word "managing the Evidence," the House of Commons do mean the ordering, applying, and inforcing the Evidence, according to the Truth of the Fact.

4. At the last Free Conference with this House concerning the Trial of the Earl of Strafford, your Lordships were pleased to acquaint the House of Commons with an Order concerning Counsel. The Commons do conceive (and so desire your Lordships will explain your Meanings) that, during the whole Time of giving the Evidence, and until the same be fully concluded on both Parts, upon all the several Articles, no Counsel is by Law and Course of Parliament to be allowed him.

And the Commons acquaint your Lordships, That if, at any Time during the Evidence, the Counsel of the Earl of Strafford shall interpose, then the Members of their House that shall be appointed to manage the Evidence must of Necessity desist, because it will not become them to plead against Counsel.

And as concerning the allowing of Counsel in Matters of Law, and the Reservations to your Lordships to judge the Doubts that shall arise what is Matter of Fact and what not, the Commons therein do save to themselves all Rights that do pertain to them; according to Law and the Course of Parliament, when such Matters of Law, and Doubts what is Fact and what not, shall arise.

"And lastly, the Commons desired your Lordships to appoint a speedy Time for Trial of the Earl of Strafford."

This being ended; the House took the Particulars into Consideration; and

Orders concerning the Trial.

"1. For the Place of Trial of the Earl of Strafford;" the House did Order, That the Lord Great Chamberlain and the Lord Chamberlain of the Houshold be appointed to move His Majesty, that it may be in Westminster Hall.

"2. For the Manner how the Commons may be present at the Trial;" this House Agreed, That the Commons be present as a Committee, for this Time, of the whole House, with a Saving to the Rights of this House, as either by Law or by Parliamentary Proceedings belongeth; and that this shall not be drawn into a Precedent for hereafter, on either Side.

"3. For some of the Members of the House of Commons to manage their Evidence;" this House doth grant it.

"4. Concerning the Counsel of the Earl of Strafford;" this House doth Order, That, in managing and inforcing the Evidence by the Members of the House of Commons, the Counsel of the Earl of Strafford is not to speak, nor interrupt the Members of the House of Commons, whilst all the Evidence be delivered and finished; and the Counsel not to stand at the Bar, but in some convenient Place where they may hear; and the Counsel of the Earl of Strafford shall be admitted to speak (in Matter of Law, but not in Matter of mere Fact) when the Lords shall think fit.

"5. For the Time of the Trial;" the Lords will take it into their Consideration on Monday next. In the mean Time, the Lord Chamberlain is to know of the King's Surveyors by what Time the Room will be prepared for the Trial.

Next a Message was sent to the House of Commons, by the Master of the Rolls and Dr. Bennett:

Message to the H. C. for another Conference concerning the Trial.

To desire a Free Conference, with the same Committee, touching the last Free Conference, concerning the Trial of the Earl of Strafford.

Then the House resolved, That the Earl of Bath, the Earl of Bristoll, and the Lord Viscount Say & Seale, should deliver, at the Free Conference, what the House now resolved on, concerning the Trial of the Earl of Strafford.

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

Answer.

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

Ordered, That Sir Edward Leech have Leave to speak with Justice Barckley.

Hide versus Lloyd, in Error.

The Writ of Error formerly brought into this Court, wherein Anne Hide was Plaintiff, against Thomas Lloyd, Defendant, with the Transcript of the Record sent into this House from the Court of King's Bench, was this Day remitted thither, that Execution might be had upon the Judgement. The Copy of which remittitur follows, in hæc verba:

"In præsenti Curia Parliamenti, tenta apud Westm. in Comitatu Midd. tertio die Novembris, Anno Regni Domini Regis nunc sexto decimo, prædictus Thomas Lloyd, in propria Persona sua venit, die Veneris, xxvi die Februarii, Anno sexto decimo supradicto, et petiit quod prædicta Anna Hide assignaret Errorem, five Errores, in Recordo et Processu prædicto; et superinde per eandem Curiam Parliamenti dies data est eidem Annæ usque in diem Lunæ, primum diem Martii proxime futurum; ad assignandum Errorem, five Errores, in Recordo et Processu prædicto, ad quem diem, scilicet prædictum primum diem Martii, in prædicta Curia Parliamenti venit prædictus Thomas in propria Persona sua, et prædicta Anna non venit ad assignandum Errorem, five Errores, sed Defaltum fecit, nec est Breve suum de Errore prædicto ulterius prosecuta. Ideoconclusum est quod eadem Anna sit in Misericordia; et superinde Transcriptus Recordi, nec non Processus, cum prædicto Brevi de Errore, missus e prædicta Curia dicti Domini Regis, coramipso Rege in prædictam Curiam Parliamenti, per eandem Curiam Parliamenti, ad prædictam Curiam dicti Domini Regis, coram ipso Rege, remittuntur; ac prædictus Thomas in eadem Curia Domini Regis, coram ipso Rege, habeat Executionem Judicii prædicti versus præfatam Annam, juxta Formam et Effectum Judicii illius, prædicto Brevi de Errore et super inde non obstante."

Which Writ, being subscribed by the Clerk of the Parliaments, was delivered to the Defendant's Attorney. (fn. 1)

Huc usque examinatur per Dominos,
Warwicke.
Essex.
P. Wharton.
Howard.
Hevey.