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Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
cause_n	according_a	court_n	law_n	1,543	5	4.8094	4	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A25869	The arraignment and plea of Edw. Fitz-Harris, Esq. with all the arguments in law, and proceedings of the Court of Kings-Bench thereupon, in Easter term, 1681.	Fitzharris, Edward, 1648?-1681, defendant.; England and Wales. Court of King's Bench.	1681 (1681)	Wing A3746; ESTC R6663	92,241	70

of the Lords in the Tower and of the Opinion in February of the Judges in their Case For in the beginning of December were those Lords Indicted and after on the 5 th of Dec. the House of Commons taking it into their Consideration that there was a Commission going out for an High Steward with an intent to bring them to Tryal before the Peers they purposely to have the Carriage and Prosecution of this great and horrid Treason and take off the Prosecution upon the Indictment do Impeach the same Lords and there the Impeachment is just the same as this in our Plea of High Treason but not of any particular Fact adding only of other Crimes and Misdemeanors which is as general as can be Now my Lord the Judges did take so much Notice of it that though the Parliament was Dissolved before the particular Articles were carryed up to set forth the particular Offence Yet in February following some of the Judges are here and they will rectifie me if I be mistaken their Opinions being asked about it at the Council Board upon the Petition of the Lords to be either Bayled or Tryed they were of Opinion that this Impeachment though thus general was so depending in Parliament that they could not be Tryed So that I think the Proceedings in Parliament are of that Nature that if you will meddle with what they do you will take notice of their Method of Proceedings as you do of other Courts Why then my Lord if this be so how is it possible for us to do better We have Pleaded as our Fact is an Impeachment of High Treason What would they have had us to do or wherein is our fault What would they have had us said We were Impeached of any High Treason so and so particularizing how can that be There is no such thing Then they would have said Nul Trel Record And we must have been Condemned for failing in our Record then indeed we had been where they would have had us But having done according to our Fact if that Fact be such as in Law will out this Court of Jurisdiction I see not how it is possible we should Plead otherwise or what Answer they will give to it My Lord I will meddle as little as I can with what hath been said they have mentioned that it is a Case of an high Nature and this Impeachment in Parliament they will look upon it as the Suit of all the people of England why then my Lord this must needs be agreed to me if this Impeachment in Parliament be in the Nature of an Appeal Surely an Appeal does suspend the Proceedings upon any Indictment for that Fact which is the Case expresly in my Lord Dyer fol. 296. Stanley was Indicted of Murder and Convicted after he was Convicted and before any Judgment the Wife of the Party Murdered brought her Appeal then came they and moved for Judgment no said the Court here is an Appeal brought and they could not go to Judgment till that Appeal was determined So the Stat. of 3. H. 7. Ca. 1. and Vaux's Case 4 Report fol. 39. an Appeal of Murder the Party Convicted before Judgment the Petitioner in the Appeal did die Then an Indictment brought and this Conviction Pleaded in Bar of that Indictment and Adjudged to be a good Plea but then there was a fault found in the Appeal upon which the Conviction on the Appeal was void in Law and they went on upon the Indictment This is to shew that if this be of the Nature of an Appeal then ought this Suit first to have its Course and Determination before your Lordship proceed on this Indictment But my Lord whether it be of this Nature or no is a matter we know where under great Controversie and whether your Lordship will interpose in that great Question or whether it comes in Judgment under this Question you will do well to Consider for 't is a matter of Parliament and determinable among themselves not in the Courts below nor have ever Inferiour Courts taken upon them to meddle with the Actions of the Superiour Courts but leave them to proceed according to their Laws and if that be done in any Case there will be as much regard had in this great Cause to the Court of Parliament as in others Besides the Authorities Cited out of my Lord Coke and others I would Cite one more and that is Cotton's Records 5 H. 4. fol. 426. the Earl of Northumberlands Case He comes and Confesses himself to be Guilty of an Offence against his Allegiance the King delivered his Petition to the Justices and would have them to Consider of it No said the Parliament 't is matter of Parliament and the Judges have nothing to do with it The Lords make a Protestation to this purpose and then they went on themselves and Adjudged it to be no Treason There is only that one Record more which has been often Cited and that is Rot. Parliamenti 11 R. 2 pars 1. N. 6. In this Parliament the Lords Spiritual and Temporal Claimed the same Priviledge My Lord I only offer these things with what my Lord Coke says hath been formerly thought prudence in the Judges to do So that I hope that if the matter be good the Form is as good as the matter can be put into and therefore we hope you will allow us the benefit of it Mr. Attorney May it please your Lordship I am of Counsel in this Case for the King and notwithstanding what hath been said I take it with Submission that this Plea is a naughty Plea as a Plea to your Jurisdiction and there is no matter disclosed therein that we can take a good Issue upon The great Substance of the Arguments of these Gentlemen Assigned of Counsel for the Prisoner is against the Prisoner For the great matter of their Arguments was lest this Gentleman should escape which Arguments in several Instances they have used to support the Plea but the Prisoner Pleads this Plea to the purpose that he might escape Therefore if these Gentlemen had taken Instructions from him surely they would have used Arguments to the same purpose that he might escape My Lord they object we have admitted here that there is an Impeachment depending that we have admitted 't is for the same matter and that we have admitted the Parliament to be in being but no Fact is admitted that is not well Pleaded Indeed if that be admitted that the Parliament is still in being then it goes very hard with us and if not so admitted the whole force of Mr. Williams his Argument falls to the ground But I say my Lord with Submission to this matter that the beginning continuance Prorogation Adjournments and Dissolution of Parliaments are of publick Cognizance and the Court ex Officio will take Notice of them so that they need not be Averred And so is the 41. of the Queen the Bishop of Norwich's Case A Private Act of

a way of proof which well stands with the rules of Law which upon the general or other collateral Issue may well be inquired of by the Jury As in an action quare canem inordacem defendens scienter retinuit Here Soienter is not directly issuable but it is proveable and must be proved upon the general Issue So in the present case the intention of the Commons upon the Issue offered by us and refused by the Attorney General might and ought and would have been proved and without doubt found by the Jury Neither is this general Impeachment such a notional thing as the other side would pretend but 't is as if they should say We do charge him to have Committed certain Crimes that are Treason Now whether the Crimes they say he had committed and for which they Impeached him are the same with those for which he is Indicted is a good and proper Issue And if it appear to the Court to be the same you will certainly your selves take off your hands from these proceedings This is all I shall say as to the Averrment And if we can well get over that I take it all the rest is well enough But again they say the Impeachment is too general and no man shall be put to answer to such a general Accusation And I say so too neither shall Fitz Harris be put to Answer to it without special Articles yet he cannot quash the Impeachment for this Cause as he might an Indictment which shews the difference betwixt an Impeachment and an Indictment which always contains the special matter and without which it might be quasht and made no Record But hereby the Law of Parliament such general Impeachments are held good And Articles are usually brought in afterwards and after those additional Articles which cannot be in the course and way of Indictment and therefore we must take the Impeachment as we find it and since it stands against us as a Record though this general we may and must Plead it in the same generallity having no way to make it no Record as we have in case of such a general Indictment So then this being an Impeachment according to the Course of Parliament it is well lodged in the House of Lords where it only ought to be Tryed and we must Plead it as we may and as we find the Case to be And having averred the Crimes to be the same we have done what we could and therefore Enough And that a general Impeachment without Articles is a Bar to any Indictment for the same matter was resolved by all the Judges as I am informed in the Case of the Lords in the Tower who were all Indicted for Treason either in the Kings Bench or before Commissioners of Oyer and Terminer And afterwards 5. Dec. 78. generally Impeached before the Lords in Parliament and no Articles exhibited till 3. April 79. And yet in the mean time it was resolved at the Council Table by all the Judges there attending that after the general Impeachment before Articles they could not be proceeded against upon those Indictments though the Parliament wherein they were Impeached was dissolved And that was a stronger Case than this of Fitz Harris For there the Inferiour Court was first possessed of the Cause and yet the general Impeachment closed up the hands of the Court But in this Case the Superiour Court the Parliament was first possest of the Cause which cannot be taken out of their hands by the Inferiour Court There is a farther difference betwixt an Impeachment in Parliament and an Indictment That in an Indictment which is always as particular as Articles upon an Impeachment you cannot Plead auter foitz Arraigned but you must Plead either auter foitz Convict or Acquit as appears in Sir William Wishipoles Case Cron. 1. 105. But in an Impeachment in Parliament the other side will acknowledge that after Articles exhibited there can be no Proceedings upon an Indictment for the same offence although the Defendant in the Impeachment be neither Convict or Acquit Otherwise you may bring back all the Lords in the Tower to the Kings Bench to be Tryed which Mr. Attorney will not I suppose Attempt And it is observable in the Case of Sir William Wishipole That to avoid the doubt that the Party there should not be questioned both upon the Coroners Inquest and the Indictment of Murther it was Ruled by the Court that the first should be quasht as insufficient so careful were the Judges to avoid double vexation in a Case compared with this of no great import I shall say no more to the Case but only observe how scrupulous the Judges have been to touch upon a Case where they had the least suspicion or jealousie that the Parliament had or pretended to have a Jurisdiction or were possessed of the Cause I am sure I could never get any thing by any Labours of mine in those Cases But upon all such Motions they were so aware of what might be the Consequence that they would always worship afar off and would never come near the Mount They would ever retire when they came but near the Brink of this Gulf. Now my Lord If you retain this Cause in consequence you Charge your selves with the blood of this man wherein if you proceed regularly and according to Law all is well But however by over ruling his Plea you take upon you his blood one way or other Through which you must wade to come at the Cause And whether it be adviseable to come at it upon these terms I leave it to your Lordships wisdom to consider Mr. Pollexfen My Lord I shall not make any long Argument there hath been so much said before me But I would fain come to the Question if I could for I must confess afterall I cannot see what the other side make the Question Mr. Attorney was pleased to say that both for the matter and form he objected against our Plea But if for the matter it be admitted to me that an Impeachment in Parliament for the same matter will out this Court of Jurisdiction I will say nothing at all of it for I apprehend that is not then in Question Ld. Ch. Just No not at all Mr. Pollexfen Then the matter seems to be agreed and only the manner and form of the Plea are now in Question And for the manner they except to it in these particulars First they say 't is not alledged that there is any Impeachment upon Record now I confess form is a subtile matter in it self and it is easy for any man that reads other mens words and Writings if he will to make what Construction he will of them even Nolumus to be Volumus but I know the Court will not so do But for an Answer to the Objection I think it is as strongly and closely penned as I can tell how to pen any thing he was Impeached Quae quidem Impetitio c. What can that Quae quidem signifie