“After this, the Lord Steward adjourned this House to Westminster 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.  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, 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 waive it, if they will.  The Lord Steward adjourned this House to Westminster Hall, and, being returned thither, signified what the Lords had thought fit for the better proceeding in the business.  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,[78] 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 judgments what was the course and common justice of the kingdom, propounded this 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:  ’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