they have denied to answer when their Advice has been demanded and insisted upon it that they were not proper Judges of such matters as in 31 H 〈◊〉 〈◊〉 Par. N. 26. For there among other things the Judges were demand 〈◊〉 â—…ether the Speaker of the House during the Adjournment of Parliament might be arrested they desired to be excused from giving any opinion for said they in this great matter they ought not interpose it being a matter of Parliament In the great Council primo secundo Jacobi about the Union of both Kingdoms the Judges refused to give their opinions upon several Questions put to them desiring to be excused for that such things did not belong to them but were matters fit for Parliament only My meaning is to infer from hence that since it is pleaded here to be according to the Law and course of Parliaments and Mr. Attorney hath acknowledged it that now your Lordship is foreclosed from further meddling with this Case it appearing upon record to be a matter whereof you cannot judge But the objection is that admit the Impeachment should be taken to be according to the course of Parliament yet it is so general that the Court cannot judge upon it I answer that 't is evident the Impeachment was not for nothing 't is most certainly to be presumed that such a body of men as the House of Commons would not Impeach a man for no Crime Fitz Harris Avers by his Plea that it was for the same Treason for which the Jury have found this Bill against him Now this Averment makes the matter as clear to the Court as if the Impeachment had mentioned the particular Treason Every days Experience shews that Averments which are consistent with the Record are good and are of necessity to clear the Fact to the Court so that the Judges may give a judgment upon it If the Defendant will plead a Recovery in a formal action in bar to an action of Debt or other action it is not enough for him to set out the Record he must Aver also that the Cauuses of the action are the same and that it is the same person who is mentioned in one Record and in the other Records and this shews that the most special and particular are of no use without Averments My Lord there is a Case that I find directly to this purpose which goes further than the Case I did but now put and that is 26. Assiz pl. 15. It is also mentioned in Stamf. Pla. Cor. 105. Where a man was indicted for the Murder of I. S. and he pleads a Record of acquittal where he was indicted for the Murder of I. N. But he Avers that I. S. in this Indictment is the same person with I. N. in the other Indictment and that was adjuged a good Plea and the party was acquitted though the Averment there seemed to be a contradiction to the Record This makes it clear that if an Averment may consist with the Record the Law will allow it In Mores Rep. 823. Pl. 1112. The King against Howard it is said that if an Act of Parliament be certified into Chancery no Averment lies to say this is no Act of Parliament because the Commons did not assent to it but if it appears in the Body of the Act that the Commons did not assent as if it was ordained by the King and Lords and without mentioning any assent of the Commons There it may be Aver'd to be no Act for this being a matter consistent with the Record is Averrable And so it is agreed in 33 H. 6. fol. 18. Pilkingtons Case Now Mr. Attorney has his Election here as it is in all such Cases either to plead Null tiel Record and then we must have produced it and if we had fail'd it had been against us as to the whole Plea Or if he would not deny the Record as indeed he could not he might have taken issue upon our Averment that it was not for one and the same offence but he has Demurred and thereby confessed there is such a Record and confessed the Averment to be true that he was Impeached for the same Crime and that he is the same person and now it is plain to your Lordship that I stated the Question right at first My Lord I shall cite you one Precedent out of Rast Ent. fol. 384. and 385. Where a man was Indicted and acquitted before certain Justices and being Indicted de novo Lord Chief Justice It is Title Gaole delivery is it not Sir Fran. Win. Yes My Lord it is And he pleads that he was Indicted coram aliis Justitiarlis for the same fellony and upon this Plea the entry is made Quia testatum est hic in Cur. in praefatâ—s Justiciarios that the said party was acquitted of the fellony in manner and form as he had alledged in his Plea Therefore 't is adjudged that he should be discharged and go without day My Lord I do not altogether rely upon this Precedent for Law but I find it in that book Now My Lord I shall offer some Reasons in general First that when once the Commons in Parliament in the name of themselves and of all the Commons of England have lodged an Impeachment against any man it seems to me against natural Justice that should ever any Commoners afterwards come to try or judge that man for that fact I speak this because every man in England that is a Commoner is a party to the accusation and so we have pleaded by such an Impeachment a man is subjected to another sort of Tryal Magna Charta says that every man shall be tryed by his Peers or by the Law of the Land And by the Law of the Land there are several sorts of Tryal some by Juries others not by Juries This is one of those sorts where the Tryal is by the Law of the Land but not by his Peers for it would be hard that any man should come to Try or to give judgement upon a person who hath been his accuser before And in effect hath already given his judgment that he is Guilty by the accusation of him and so stands not indifferent By this means the Tryal by Jury is gone And the Lords who are the Peers of the Realm are Judges in point of fact as well as Law Here is an enormous offence against which all the Nation cryes for so they do in the Impeachment Then says the Law it is not fit that you should try him who are parties but the Lords are the proper Judges they shall Try him per testes and the Commoners may come in as Witnesses but not as Judges My Lord another reason is this that if an Appeal of death or any other Appeal were depending before the Statute of 3 H. 7. cap. 1. The King could not proceed upon an Indictment for the same fact because the King as the Common parent does only take care that such Offenders should not go away
Parliament was Pleaded and the day of the Parliament mistaken there was a general Demurrer and it was resolved that it was naught and Judgment given against the Bishop though no Exception was taken in particular because the days of the beginning and ending Parliaments are of publick Notice and the Judges take notice when a Parliament is in being and when not That 's a sufficient Answer to that matter Then for those many Cautions that have been given you what a difficult thing it is for two Jurisdictions to interfeir Mr. Fitz Harris is much concerned in that matter who hath forfeited his Life to the Law as a most notorious Offendor that certainly deserves nothing but punishment yet he would fain live a little longer and is much concerned that the Judicature of Parliament should be preserved If it be not Law he shall not be oppressed in it but if it be Law fiat Justitia Certainly no Consideration whatsoever ought to put Courts of Justice out of their steady Course but they ought to proceed according to the Laws of the Land My Lord I observe 't is an unusual Plea and perhaps they had some reason to put it so It concludes si curia procedere vult I wonder they did not put in aut debeat that is the usual form of such Pleas for you have no Will but the Law and if you cannot give Judgment you ought not to be pressed in it but it being according to Law that great Offendors and Malefactors should be brought to Condign punishment we must press it whatsoever the Consequences are And if we did not take it to be the Interest of all the Kingdom and of the Commons too as well as of the King my Lord I should not press it but it is all their Interest that so notorious a Malefactor that hath certainly been Guilty of Treason in the highest Degree and that for the utmost Advancement of the late Popish Plot should not escape or the truth be stifled but brought into Examination in the face of the Sun that all men may see what a Villanous thing hath been Attempted to raise up the whole Kingdom against the King but they say if it be not Law you will not proceed it Ties your hands But with Submission they have not given you one Instance to make good what they say Many things have been that a Plea pending in a Superiour Court is Pleadable to the Jurisdiction of an Inferior Court for my Lord that is it we put upon them to shew if it had been Pleaded in Abatement it would have had its weight and been considered of as in Sparry's Case where it was no Plea to the Jurisdiction Put the Case it had been a good Impeachment and he had been Arraigned upon it and acquitted If he had afterwards come to be Indicted in this Court and the Prisoner will not plead this in Bar but to the Jurisdiction of the Court it would not have been a good Plea But he had lost his Advantage by mispleading If then an Arraignment and an acquittal or Conviction thereupon not a good Plea to the Jurisdiction then certainly an Impeachment depending singly cannot be a good Plea to the Jurisdiction This Court hath a full Jurisdiction of this Case and of this Person both of the Crime and of the party who is a Commoner and not only to find the Indictment but to proceed to Justice and this you had at the time of the fact Committed For certainly we need not put Cases for to prove that the King's Bench especially since the Statute for trying Treason beyond the Seas hath an universal Jurisdiction of all Persons and Offences Pray then what is it that must out this Court of their Jurisdiction For all the Cases that have been or can be put about matters which are not originally examinable in this Court make not to the matter in Question there 't is true the Court may be by Plea outed of its Jurisdiction as at Common Law where a fact is done super altum mare and so Pleaded that puts it out of the Courts Jurisdiction and that was my Lord Hollis and Sir J. Eliots Case and so that was my Lord Shaftsbury's Case too the fact was done out of their Jurisdiction and that may be Pleaded to the Jurisdiction because they had no Original Jurisdiction of the fact but where the Crime and the Person were absolutly within the Jurisdiction of the Court and the Court may Originally take Cognizance of it as this Court had of the present Case I would fain know what can out that Jurisdiction less than an Act of Parliament I will be bold to say the King by his Great-seal cannot do it nor can an Act of either House or both Houses together without the King out the Jurisdiction To say their proceedings ought to be a Bar that is an other Case the party hath his Advantage and may plead it in abatement or Bar as the Case requires for if there had been an Acquittal or Conviction the party could not plead it to the Jurisdiction Therefore for those Cases they put when you come to examine the reason of them you see how they stand viz. that the Court had no Original Jurisdiction My Lord Shaftsbury was committed by the Lords for a Crime in that House a Contempt to that House he is brought here and it appears to be a Commitment in Execution My Lord that was out of your Jurisdiction and if you had bailed him what would you have done would you have bailed him to be tryed here No you could not do it and therefore you proceeded not in that Case And so in the other Cases for there is not one of their Cases that have been cited of the other side but where it was out of the Jurisdiction of the Court originally and not at all within it As for the Case of the five Lords in the Tower because they say it will have a mighty influence upon them and they put the Case That there was in December an Indictment and afterwards an Impeachment from the Commons and they cite some Opinion given at the Council-board which I hope these Gentlemen will not say was a Judicial Opinion or any way affects this Cause But for that my Lord I observe the Lords took care that these Indictments should be all removed into the Lords House so they did foresee that the King might have proceeded upon the Indictments if they had not been removed thither But our Case now is quite another thing for those Lords were not fully within your Jurisdiction You cannot try a Peer of the Realm for Treason and besides the Lords have pleaded in full Parliament where by the Law of Parliament all the Peers are to be their Judges and so you can't out them of that Right And the reason is plain because thereby you must do them an apparent prejudice they having pleaded there all the whole Peerage are their Tryers But upon Tryal before
Commissioners they must have but a select number of Peers to be their Tryers But in none of those Cases hath any Judicial Opinion been given for the Case of 11 R. 2. first cited by Sir Fran. Winnington and then by Mr. Pollexfen a Declaration in Parliament That they proceeded according to the Law of Parliament and not according to the Common-Law nor according to the practice of Inferiour Courts that will be nothing to our purpose at all that was in case of the Lords Appellants a proceeding contrary to Magna Charta contrary to the Statute of Edw. 3. and the known Priviledge of the Subject But those proceedings had a countenance in Parliament for there was an Oath taken by all the Lords in Parliament That they would stand by the Lords Appellants And thereupon they would be controuled by none and they would not be advised by the Judges but proceed to the trying of Peers and Commoners according to their own will and pleasure And between that time of 11 R. 2. and 1 H. 4. see what havock they made by those illegal proceedings and in 1 H. 4. you will see that these very Lords were sentenced except one or two of them who were pardoned and then it was expresly resolved by Act of Parliament That no more Appeals of that nature nor any Appeals whatsoever should be any more in Parliament And if so these Gentlemen had best consider how they make an Impeachment like an Appeal for in that Statute 't is said There shall be no more Appeals And the Petition upon which this Act is founded runs thus They pray that no Impeachment or Appeal may be in Parliament But when the King came to make the Grant he grants onely for Appeals and principally to out those Lords Appellants who were condemned by that very Parliament So that 't is a very pretty matter at this time of day to liken an Impeachment to an Appeal But my Lord the other great point is this There is nothing at all certainly disclosed to you by this Plea therefore there is nothing confessed by us onely the Fact that is well pleaded therefore I shall come to consider what is said by them as to the form of it They say my Lord that they have pleaded it to be secundum legem Consuetudinem Parliamenti and if that be sufficient let them have said what they would that would have healed all But I say my Lord with submission they must disclose to you what is the Law and Custom of Parliament in such case or else you must take it upon you upon your own knowledge or you cannot give Judgment 'T is very well known what this Lex Consuetudo Parliamenti is no person versed in the Records but knows it that by course of Parliament a Message goes up with a Declaration to impeach the party generally and then after there are Articles or a Bill of Impeachment produced Now till that be produced sure there is no Counsel of the other side will say that ever the party can be called to answer And because these Gentlemen do pretend to urge their knowledge herein I would observe there are three things to be considered of the Parliament the Legislative part the matters of Priviledge and the Judicial part proper to this Case For the Legislative part and matters of Priviledge both Houses do proceed onely secundum legem Consuetudinem Parliamenti but for the Judicial part does any man question but that in all times they have been guided and directed by the Statutes and Laws of the Land and have been outed of a Jurisdiction in several Cases as by the Statute of 4 Edw. 3. and 1 H. 4. And the Lords in all Writs of Errour and all matters of Judgment proceed secundum legem Terrae and so for Life and Death And there is not one Law in Westminster-hall as to matters of Judgment and another in the Court of the Lords above But I will not trouble your Lordship any farther to pursue these things But it is not sufficiently disclosed to you that there is any such thing as an Impeachment depending there 't is onely alleadged that he was impeached and so much the News-book told us that he was impeached but to infer thence that there was an Impeachment carried up and lodged for the same High-Treason is no consequence And then 't is alleadged Quae quidem Impetitio when no Impeachment is before set forth but onely that he was impeached generally And as I observed before a person might go up with a Message to impeach but that cannot be said to be an Impeachment to which the party is compelled to answer it must be an Impeachment on Record and appearing on the face of the Record for what Crime it is and so they ought to have set it forth Now that this is too general that is alleadged here I take it the Books are very full When a Record is pleaded in Bar or in Abatement the Crimes ought to be set out to appear the same and so my Lord are all the Presidents of Coke's Entries 53. Holdcroft and Burgh's Case and Watts and Brays Case in 41 and 42 of Q. Eliz. Coke's Ent. 59. Wrott and Wigg's Case 4 Rep. 45. and in Lewes and Scholastica's Case and Dives and Manning's Case The Record must be set out that the Court may judge upon it and the Record must not be tryed per Pais but by it self But for what they say plead it never so certainly there must be an Averment it must be so 't is true but that is for another purpose than they urge it The reason is because if it be for another Fact that he hath committed he may be indicted again though it be of the same nature but whether of the same nature or not of the same nature is the thing must appear upon the Record pleaded because the Court must be ascertained that it was sufficient for the party to answer to it for if it were insufficient he may be again proceeded against as if an Indictment be pleaded which was insufficient though the party pleads an Acquittal or Conviction upon it it will not avail him for the Court will proceed on the other Indictment And so is the Resolution in Vaulx's Case and in Wigg's Case though there was a Judgment given of Acquittal yet he was tryed again So that my Lord that is one great reason why it must appear that the Court may judge whether it be sufficient for the party to answer And you have now that here before you if this be such an Impeachment as they have pleaded it as this person could not answer to by any Law of Parliament or other Court then 't is not sufficient to out you of your Jurisdiction And I do think that by no Law they are or can be compellable to answer to a general Impeachment of High-Treason And to give you authority in that there are many might be cited as the Cases of my Lord
Stafford and the other Lords in the Tower and so is the ancient course of Parliament with submission I will be bold to say the Impeachments are all so that ever I met with And it appears by them that they all conclude contra Coronam dignitatem Regis in the form of Indictments laying some Overt-Acts and the special particular Crimes for which the person is impeached as Overt-Acts for Treason required by the Statute of 25 Edw. 3. And I hope they will not say That without an Overt-Act laid in the Impeachment the Impeachment can be good If then this be so general that it cannot make the Crime appear to the Court and is so insufficient that the Court cannot give Judgment I take it you will go on upon the Indictment which chargeth him with a particular Crime My Lord Mr. Pollexfen does put the case of Barretry where such Averment is allowable but that is a special certain and particular Crime but High-Treason is â—ot so there are abundance of special sorts of High-Treason there is but one sort of Barretry and there are no sub-divisions therefore there is nothing to be averred but the special facts that make that Barretry Then there was another Authority out of the Book of Assizes cited by Sir Fra. Winnington and greatly relied upon A man is indicted for the murder of J. S. and afterwards for the murder of J. N. the former was pleaded to the second with an Averment that it is the same person that is but according to the common form of Averments to be of matter of fact For if J. S. was known as well by the name of J. N. as of J. S. the Indictment was for the murder of the same person and there 't is pure fact averred But where 't is Essential as this case is that the particular Treason do appear to say that it is the same particular Treason and to say that matter of fact aver'd shall enlarge a Record I think is impossible to be found any where And of all the Cases that I have seen or heard I confess none of the Instances come up to it For the Case in Moor King and Howard cited by Sir Francis Winnington that is an authority as expresly against him that nothing can be more For if there be an Indictment for Felony in such a particular act and then he is indicted again he cannot come and plead a general Indictment of Felony and then aver 't is for the particular Felony and so to make the fact enlarge the Record and put matter of Record to be tried by a Jury Mr. Wallop was of opinion that upon this Averment the Jury may try the Fact What a pretty case would it be that a Jury should judge upon the whole Debates of the House of Commons whether it be the same matter or no for those Debates must be given in evidence if such an issue be tried I did demur with all the care that I could to bring nothing of that in question but your Lorship knows if they have never so much in particular against a man when they come to make good their Impeachment they must ascertain it to a particular Crime and the Overt-acts must be alleadged in the Impeachment or else there is another way to hang a Subject than what is the Kings high-way all over England And admit there was an intimation of a purpose to Impeach a Message sent up and any Judgement given thereupon pray consider what may be the consequence as to the Government a very great matter depends upon this if there be any Record of that Parliament then is the French Act gone for so is the Resolution in 12 Jacobi where the Journal-book was full of proceedings yet because there was no Judgement passed nor no Record of a Judgement in a Writ of Errour they adjudged it no Session but if any Judgement had been given then it had been otherwise So that the consequences of these things are not easily seen when men debate upon touchy matters But that which is before your Lordship is this point upon the pleading and I conceive I have answered all the Presidents they have cited therefore my Lord I do take it with submission there is nothing of that matter before you concerning an Impeachment depending before the Parliament but whatsoever was done 't is so imperfectly pleaded that this Court cannot take any notice of it Mr. Soll. Gen. My Lord I shall endeavour to be short and shall confine my self because I am tender of your time to the point in Question which is whether this Plea be sufficient in point of Form There have been many things said on the other side which I must crave leave to take notice of so far onely as to shew they are not in question before you Those are what relate to the matter of the Plea for they argue 't is good both in matter and form and from the matter of the Plea they have taken occasion to debate whether a Commoner may be impeached Whether this Court hath power to judge of the priviledges and course of Parliament none of which Questions will arise upon our case now Therefore I will not now debate whether Magna Charta which hath ordained that every man shall be tried by his Peers and the Statute of 4 Edw. 3. which says that the Lords shall not be compelled nor shall have power to give Judgement upon a Commoner have sufficiently secured the Liberty of the Subject from Impeachments Nor is it the question before your Lordship whether you shall judge of any matter that is a right or priviledge of Parliament here is nothing before you that was done in Parliament but this is an Indictment for High-Treason committed by Fitz-Harris in this County Now my Lord as that is not the Question neither will it be the Question Whether an Impeachment depending in the House of Lords against a Commoner by the House of Commons will bar this Court of its Jurisdiction For though they have entred upon it and debated it at large and seemed to obviate the Objections made to that if it had been a Question as by saying that the King hath no Election because this is not the suit of the King but the suit of the Subject I will not now ex instituto argue that point but I will humbly offer a few things to your Lordships consideration and I shall take my hints from them They say the House of Commons are the grand Inquest of the Nation to enquire of Treasons and other high Crimes and they make these Presentments to the House of Lords Now when such a Presentment is made 't is worthy consideration whether it be not a Presentment for the King for an Impeachment does not conclude as an Appeal does but contra Ligeantiae suae debitum Coronam Dignitatem Domini Regis so far 't is the Kings suit In an Impeachment the Witnesses for the Prisoner are not sworn the Prisoner hath