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
Cautions we will admit her to come to you Lient of the Tower Will your Lordship please to give us a Rule to let his Wife and Conusel come to him L. C. J. We do make such a Rule Cler. of the Crown My Lord we will make it part of the Rule Lieut. of the Tower We desire such a Rule for our discharge L. C. J. Sir This is our Rule and we have declared it to this purpose Then as to your matter Brother Stringer this we will do Let the Lieutenant of the Tower keep Mr. Fitz-Harris safely till we return out of the Exchequer and then we will examine him Mr. Serj. Stringer My Lord We think it will be a short business and soon over if you please to do it first Mr. Fitz-Harris My Lord I may see my Wife in the mean time I hope L. C. J. Do you insist Brother that we should examine him presently Mr. Serj. Stringer My Lord Mr. Godfrey desires it L. C. J. Then we will presently Lieut. of the Tower Must his Lady speak with him L. C. J. Yes after he is Examined Lieutenant of the Tower bring Mr. Fitz-Harris into our little Room where we will take a Clerk and examine him Mrs. Fitz-Harris To her Husdand the Court being just risen My Dear Do not Confess any thing about the Death of Sir Edmund-bury Godfry nor the Plot for you will be betray'd Speak only to little things Then the Prisoner was carried away to be Examined and after that to the Tower On Munday the Second of May Sir Francis Winnington and the other three Gentlemen assigned of Councel for Mr. Fitz-Harris came to the Bar and Moved the Court for an Explanation of the Rule concerning themselves and the Business they were assigned for Mr. Williams My Lord I am to move your Lordship in a Case wherein I am with three others of the Gentlemen that attend this Bar assigned of Counsel for Mr. Fitz-Harris and that which I would beg for my self and them is this There is one thing we desire may be explained a little in the Rule I humbly apprehend your Lordship gave leave to the Counsel who you so assigned to come to Mr. Fitz-Harris and entrusted them with the Liberty of speaking with him alone but by the penning of the Rule we apprehend that the same Restraint is put upon them that is upon other persons to have some body at their being with him L. C. J. The Lieutenant sent to me on Saturday about it and I told him it did not extend to you Sir Fran. Winnington We think it may have a Construction either way but we desire it may be made plain as you meant it L. C. J. We tell you It is plain and it was so intended Sir Fran. Winnington Therefore we taking it that your Lordship pronounced and meant it so do desire it may be so expressed We are satisfied that it was your Lordships intention we desire the Clerk may make it plain and intelligible in words And there is this further in it My Lord L. C. J. We declare it now to you it was so meant and intended Sir Fran. Winnington My Lord There is this further in it We four have met and we desire as much as may be to expedite this matter as far as we can for our own Reputation and doing our Duty to the person we are assigned of Counsel for But truely so soon as is appointed by your Lordship it is impossible for us to prepare things so as to be ready by Wednesday-Morning The Plea I never saw nor did I ever hear of it till it was brought and read here but since that I have not seen it till this time The Rules were brought but last Night to our Chambers there is no Soliicitor in the Cause that may attend us The Indictment I have not seen that we are to Plead to and truely I think the Course is to have a Copy of the Indictment L. C. J. We deny that Sir Fran. Winnington Mr. Williams It is impossible for us then to get ready in this time I humbly Move you will Assign some convenient time I know your Lordship will not put an hardship upon us that are of Counsel to plead such a matter so quickly T is a matter of difficulty and there are not many Presidents in it And therefore it will require more care than ordinary Sir Fran. Winnington My Lord We ought to present things to the Court as they are in Fact that we may not lye under any reflection from the Court nor any body else You made a Rule on Saturday that I should be of Council for him which I submit to but I knew not of this till afterwards I never saw the Plea nor any Paper in this Cause as yet The Rule was left at my Chamber this last Night and when I saw it Mr. Williams and we got together in the Hall this Morning We could not do it till just now and we come now to wait upon the Court to acquaint them how the matter stands I was not in Court when you gave your Directions about this matter but when I finde what the Nature of the Case is I shall be ready to do my Duty to the Court and to him who is upon his Life It is a mighty Cause it is a Cause that may-be if we do not acquit our selves as we ought have reflection upon our Posterity if we do not do it as well as we can Therefore we desire some reasonable Time that we may have Copies of the Papers and things concerned in this Cause as the Court shall direct And we are assured your Lordship is so well acquainted with the usual Method in such Cases that you will give us all the favour in it you can Mr. Wallop For my part My Lord the Notice I had was but very lately I was by indeed when this person Fitz-Harris did desire Connsel and your Lordship assigned me amongst the rest but nothing of the Order was brought to me till this Morning So that I know nothing of the matter less or more than what I heard upon the reading of the Paper here on Saturday I do not desire Time for Time-sake or for Delay but we think the nature of the thing is such as will aequire great Consideration and we desire convenient Time to prepare it for the Court. L. C. J. Look you Sir Francis Winnington You must consider here the Nature of your Case This is an Indictment of High-Treason and there is nothing I see that is so greatly considerable in the Case but the heighth of the Crime T is an extraordinary Crime indeed if he be Guilty of it for I speak not to prejudice your Client but of the thing it self 'T is a Treason of a very high Nature And then what have we to consider in this Case We might have taken your Client at advantage here and it had been no Injustice if we had made him to plead immediately as
the Prisoner stands Impeached by the Commons of England in Parliament Assembled of High Treason Secondly That the Impeachment thus made by the Commons in the Name of themselves and of all the Commons of England before the Lords in Parliament for Treason is now in being Thirdly Which I omitted in the opening of the Plea that this was done sed in Legem Cons Parliamenti and being so remains in plenis suis Robore Effectu And more particularly this Plea does refer to the Record for the Parts and Circumstances of the Impeachment prout patet per Record inde inter c. So that it does refer the Impeachment it self to the Record and tells you this is among the other Records of that Parliament all this is admitted by the Plea Fourthly And moreover that this Treason for which he stands Impeached before the Lords and the Treason for which he stands Indicted before this Court are one and the same Treason and no way diverse and so they are the same numerical thing and there is no manner of Difference And that this Person Fitz-Harris now Indicted and the Fitz-Harris In peached are one and the same Person and no way diverse And withal my Lord it appears plainly upon the Record that this Impeachment was depending before the Indictment found for the Parliament was the 21 st of March and it appears by the Record this is only an Indictment of this Term. And another thing I must entreat you to observe my Lord it does not appear but that this Parliament is still in being for any thing to the contrary in the Record and as I take the Case then it must be admitted so to be So then I take the Plea to be in substance thus though Mr. Attorney was pleased to except to both the substance and the form but in substance the Case is thus Here is a Person Impeached in Parliament by the Commons in Parliament for High Treason before the Lords in Parliament and for ought appears that Parliament still in being and this impeachment still depending Then here is an Indictment for that very Treason whether your Lordship now will think fit in this Court to proceed upon that Indictment is the substance of the Case I shall speak to the form by and by My Lord by the way I think it will not be denyed but that the Commons in Parliament may Impeach any Commoner of Treason before the Lords in Parliament I take that to be admitted And I do not find that Mr. Attorney denys it or makes any doubt of that for I think that was the Case of Tresilian and Belknapp who were Impeached in Parliament by the Commons before the Lords I am sure my Lord Chief Justice Vaughan does in his Reports in Bushell's Case say so and upon that Impeachment of the Commons one of them was executed and the other banished in Parliament My Lord I cite it not merily but I cite it as Authority Indeed I do not go so far as to cite the Parliament Roll it was in the time of Rich. the 2. I have not seen the Roll of late truly but I am sure 't is upon the Roll and there 't is to be found Since then Impeachments of Commoners will lye in Parliament here then My Lord will be the Question whether this Court may proceed upon an Indictment for the same offence the Parliament was for And here I shall distinguish upon Mr. Attorney he does allow the Parliament to be a superior Court but admitting that he says though it be so yet the inferiour Court having Original Jurisdiction of the Person and the Cause it may proceed notwithstanding an Indictment in the Superior Court And Ergo he does inferr that this Court may proceed upon an Indictment notwithstanding an Impeachment in Parliament My Lord I will compare a little the Case of an Indictment and an Impeachment and shew you how manifestly they differ I do take the Case of an Impeachment not to be the Case of an Indictment and so the Principle that Mr. Attorney hath taken is wrong and the ground of that Argument wrong I cannot say 't is like the Case of an Appeal but I may say the Case of an Appeal is like the Case of an Impeachment For in an Appeal of Murder though the Indictment be Capital and the same that is given upon Criminals prosecuted for the King yet it is at the suit of the party as in this Case 't is at the suit of the Commons and so 't is an intimation of and Analogical to and bears the resemblance of an Impeachment in Parliament I will not compare an Impeachment to an Appeal but I will say an Appeal imitates an Impeachment And 't is as plain as can be because Appeals are proper to Courts in Westminster-Hall and 't is at the suit of the party the Prosecution and all the Process is ad instantiam partis so is an Impeachment at the suit of the Commons An Indictment is found upon the presentment of a Grand Jury who are Sworn ad inquirendum pro Domino Rege pro Corpore Com. And 't is a mistake in the form when 't is said pro Corpore Com. for it is not for the King and the body of the County but for the King for the body of the County But now an Impeachment in Parliament is otherwise 't is not in the Name of the King but in the Name of the Commons in Parliament and of all the Commons in England wherein it suites with an Appeal which is at the suit of the party so that 't is like an Appeal and not like an Indictment an Indictment is for the King an Impeachment for the people And as it is in its nature and constitution different so 't is in the prosecution also for that is by the Commons of England they are the prosecutors in effect but now in all Indictments they are prosecuted always by the Kings Attorney or by some person in the name of the King We are now arguing upon the Methods and forms of Parliament therefore I must crave leave to insist upon those Methods more particularly The Commons they bring up the Impeachment to the Lords the Commons they prosecute the Impeachment they manage the Evidence upon the Tryal and when the Lords have considered of it and have found the fact the Commons come and demand Judgment and Judgment is given at the Prayer of the Commons and no otherwise and there are no proceedings by the Attorneys Indeed there have been attempts by Attorneys to prosecute persons in Parliament by exhibiting Informations in the Parliament but what success they have had I leave to them to consider that are concerned and have read the Rolls of Parliament But it is not safe to alter the old ways of Parliament therefore I take it under Correction that it is out of the road of Comparisons when they will compare an Indictment and an Impeachment together for they do not agree
but differ extreamly I would then offer you some reasons why this Court ought not to proceed upon this Indictment I take it it does not become the Justice of this Court to weaken the Methods of proceedings in Parliament as this Court will certainly do For if you will admit this to be the course that I have open'd your proceedings will alter it When there is an Impeachment depending in Parliament for Treason if your Lordships will admit there may be an Indictment here afterwards in this Court and proceedings in this Court upon that Indictment 't is to alter the Method of Parliament proceedings and to subject the Method of their proceedings there to the proceedings of this Court. And what the Mischief of that will be I must leave to your Lordship As I open'd it before the Methods of both Courts are different and their proceedings very much vary I think I need not trouble your Lordship with that We all know it very well in the main Indictments in this Court are to be tryed by a Jury where a Verdict must be given presently There is but very little time for giving the Evidence or for making Observations for the Crown or for the publick and in order to bring it to the Tryal there must be an immediate Plea of Guilty or Not Guilty Now if the proceedings of Parliament were so sudden there might be a great surprize and great offenders pass unpunished because the Prosecutors had not greater time to inspect the Records that might be of avail in the Case Therefore in Parliament 't is quite otherwise there is time for Deliberation and Consideration there are many references and many Examinations which are matters of Deliberation and Consideration which take up a great deal of time But here you are straitned not only in time but bound up to strict Rules and so are straitned in your Methods and forms of proceedings as Mr. Attorney would here tye us up to the forms of little Courts but it is not fit that the Justice of the Kingdom and the high Court of Parliament should be crampt by the Methods of an Inferior Court and a Jury So you will then subject the Methods of proceedings in Parliament to the Courts in Westminster-Hall and what the Consequence of that will be is worth the consideration Another reason I would humbly offer is this My Lord the Parliament is the Supream Court certainly and this Court is every way inferior to it and it will be very strange that that Supream Court should be hindred by an inferior For the Highest Court is always supposed to be the wisest the Commons of England in Parliament are supposed to be a greater and a wiser body than a Grand Jury of any one County The Peers who are the Judges in that Court are supposed to be the wisest Judges as the Commons the wisest Inquest Will the Law of England now suffer an Examination Impeachment and Prosecution for Treason to be taken out of the hands of the greatest and wisest Inquest in England And will the Law of England suffer the Judicature upon this Prosecution to be taken out of the hands of the wisest and greatest Judicature and put it into the power of a smaller Number of Judges or of an inferior Jury I do think it does not stand My Lord with the wisdom of the Law or of the Constitution of the Government Another thing is this My Lord the common argument in any extraordinary Case there is no Precedent for this way of proceeding 't is my Lord Cokes argument in his Comment upon Littleton fol. 108. and in the 4th Inst fol. 17. in his Comment upon the High Court of Parliament And he takes occasion to speak it upon the account of that Precedent the Case of the Indictment against the Bishop of Winchester and of that against Mr. Plowden and he says this wus never practised before Therefore it ought not to be so he infers and puts a black mark upon it by saying 't is a dangerous attempt for inferiour Courts to alter or meddle with the Law of Parliaments for the words I refer my self to the Book I dare not venture to repeat them upon my memory So in this case in regard that it never was done from the beginning of the world till now the 33 year of this King I may say it being without Precedent there is no Law for it My Lord there is another mischief that will certainly follow upon this and that too runs upon the Comparison of an Appeal and of an Indictment In the Case of an Indictment 't is in the power of the Prince to pardon that Indictment to pardon the punishment and to pardon the offence but in the Case of an Impeachment I take it to be otherwise as 't is in the Case of an Appeal And My Lord if your Lordship will take this Case out of the power of the Parliament and bring it into this Court where the offence may be pardoned You do by that means subject that offence and that method of proceedings which would make it without consent of the party prosecuting not pardonable by Law to a Pardon and this may be of dangerous consequence to the publick that crimes that are heinous and great in themselves mighty bulky crimes fit for the consideration of a Parliament be they never so great never so dangerous to the Government yet should by giving this Court a jurisdiction and possessing it of these causes expose them to the will of the Prince and so those crimes which are impardonable by methods of proceedings in Parliament would become pardonable by prosecution in this Court Now My Lord for my Authority that Impeachments are not pardonable I would only hint a little to compare it to the Case of an Appeal as Peuryn and Corbett's Case in 3 Croke Hill 38 Eliz. fol. 464. There was an Appeal of Murder upon which he is found Guilty of Man-slaughter and Not Guilty of the Murder Then there was a Pardon pleaded of the burning in the hand or of the punishment it is not plain in the Book whether the Pardon was after the Verdict or before that I can't be clear in but however there was a question whether the Queen could pardon the burning in the hand however it was there allowed but there was an exception My Lord Coke who was then Attorney General took that the King could not pardon if it had been an Appeal of homicide and he concurr'd with the Court in that opinion but that Appeal being for Murder and the Verdict of Man-slaughter they passed over the question for this reason that I have mentioned That the appeal was not for Man-slaughter it was for Murder and if he had been found guilty of the Murder it was not in the power of the King to pardon him it being at the suit of the party So the opinion of that Book is and of the then Attorney General Thus I have stated the thing and the consequences of
Grammar an Adjective for a Substantive but I take it to be as well as any man can plead in this Case For what says the Prisoner The Knights Citizens and Burgesses in Parliament assembled did Impeach me which Impeachment is still in force before the Lords I take it to be as plain as can be If they did impeach me then there was an Impeachment it can bear no other sence My Lord another Exception and which was thought a strong one the other day and strongly urged is that the King may chuse his Court and they compared it with the other Courts but there is the mistake that runs all along in this Case 'T is no doubt the King may chose his Court for his own action and suit but the Impeachment is an Impeachment of the Commons and their suit is to be tryed no where else but in Parliament And the Case that was the other day cited by Mr. Attorney for this purpose is true of the person that was arraigned for Treason and had been Indicted and arraigned in Ireland and he may be arraigned and tryed here there is no Question of it but to say therefore that this is a Consequence from that Rule that therefore he will chuse whether he will proceed in Parliament upon the Commons Impeachment and put a stop to the proceeding of the Parliament by proceeding in this Court I take to be a great Non sequitur My Lord I have offered these Reasons as to the form of the Plea to maintain it Now as to the Precedents I would a little speak what hath been done in the like Case where this Court hath taken hold of Causes and the prosecution of the Court hath been stop'd by Pleas to the Jurisdiction and what hath been done upon those Pleas What doom they have had I will hint some of them to you There was a Case mentioned by your Lordship the other day the Bishop of Winchesters Case 3 Edw. 3. I dare not say that I have looked upon the Parliament Roll but my Lord Coke tells us he hath recited the Record de verbo in verbum in the 2. Institutes fol 15. there are all the proceedings it was not an Indictment for my Lord Coke contradicts that and says it was a declaration there the Record at large sets forth that the Bishop of Winchester was attached to answer the King for that whereas at a Parliament held at Sarum it was ordained per ipsum Regem ne quis ad dom Parliament summonitus ab eodem recederet sine licentia Regis And that this Bishop in contempt of the King recessit without leave of the King I think 't is rather an action than a Criminal proceeding what says the Bishop to this He comes and says si quis deliquerit erga Dominum Regem in Parliamento aliquo in Parliamento debet corrigi emendari non alibi in minore Curia quam in Parliamento c. What becomes of this Plea 't is strange there should be such an Inhibition that no man should depart without leave of the King and the Bishop be punished for it we do not find any Judgement was given nor would they venture to do it My Lord Coke hath a mark upon it for this very reason it looked as if there was a design to weaken the Parliaments by bringing their proceedings into Westminster-hall but they would not do it they would give no judgment for the King but for ought appears the Plea stood Then there is the other Case of Mr. Plowden and many more in primo secundo Phil. and Mar. where a great many of them some whereof were Burgesses and they submitted but he did not The Information there is this that these persons were summoned to the Parliament and departed from thence without the leave of the King and Queen though it was prohibited by them that any should depart most of them submit to a Fine and if it had rested there it might have turned to the prejudice of the Commons as an example But Mr. Plowden he pleads as one that understood himself and the power of Parliaments and their proceedings very well and considers the time to have pleaded in says he continued in the Parliament from the beginning to the end of the Parliament but he relies not there but he brings a traverse full of pregnancy and if our Plea be faulty theirs was 100 times as faulty Absque hoc that he the said Edmond Plowden the said day and year during the said Parliament without License of the said King and Queen and the Court aforesaid did contemtuously depart in Contempt of the said King and Queen and their Commandment and inhibition and to the great detriment of the Common-Weal and State of this Kingdom c. All these things he pleads which your Lordship knows to be a very ill traverse and yet this Case continued all the time of that Queen and the Court would never give judgement in it This was in primo secundo and yet it appearing upon the face of the Information that it was a Case that concerned the Commons the Court would not give judgement for or against the Commons as long as the King and Queen lived There is a later Case and that is Elliots Case 5 Car. there is an Information against My Lord Hollis Sir John Elliot and many more and there is a Plea put in to the Jurisdiction of the Court I have a Copy of My Lord Hollis's Plea and 't is in a manner as faulty as Plowdens Plea but the Court in that Case does go not upon the insufficiency of the Plea but gives judgement generally that this Court had a Jurisdiction the assault happen'd in Parliament and the words were spoken there and upon the Demurrer they gave judgment upon the whole matter what became of that judgement We know very well it was reversed 19 of this King And pray observe the proceedings in the reversal of that judgment Judgment wâ—s given against My Lord Hollis and the rest of the Gentlemen of the House of Commons though there was no prospect of a Parliament yet they were obstinate and would not plead for they thought the judgment to be a very hard judgment and this being a Plea in abatement judgment was given for want of a Plea over It may fall out in this Case that this person may be obstinate and not plead over if you should give your judgment against this Plea In Elliots Case they were fined severly and they continued under this judgment in Prison and in execution for the Fine a great while and they were delivered by what I cannot indeed justifie in all its proceedings I mean the long Parliament but what was done in 19 of this King I think is good authority which none can say but was a Parliament as useful to the King and Kingdom as ever could be In that Parliament the Commons examined this judgment I speak because I have it in my printed Book t
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
but the Impeachment that was just mentioned before But what they mean by this to say this is not the same Impeachment when the Words are positive that 't is the same I must confess I cannot Fathom My Lord there was another thing spoken the last day but they have not mentioned it now if there be any thing stirred in it I hope your Lordship will be pleased to hear us before you give your Judgment in it That it was not said to be sub pede sigilâ—i but I know they won't insist upon it therefore I say nothing to that But the great Question now is whether or no this be not too general the alledging that he was Impeached in Parliament and not saying how or for what Crime tho there be an Averment afterwards that 't is for the said Crime Whether this be not so general as that therefore this Plea should be naught First for this of the Averment I take it with submission let the Crimes be never so particularly specified in the Record that is pleaded and in that upon which the party is brought in Judicature yet always there must be an Averment and that Averment is so much the substantial part of the Plea That let the matter never somuch appear to be the same without an Averment it would be naught And it must come to be tryed per paâ—â— whether the offence be the same or not for if a man plead one Indictment for the murder of I. S. to another Indictment for the murder of I. S. tho' they bear the same Name he must Aver they are one and the same Person For else Non constat to the Court but there may be two I. S. Therefore all Averments are still the substance of the Plea to bring the Identity of the matter into Judgment and are to be tryed by the Country so then the Objection to the Generality is not an Objection to the substance but rather an Objection to the form on their side Because the substance is alledged in the Plea that it is for the same Treason which substance if Mr. Attorney had thought not fit to have demurred to but taken Issue on must have been tryed per pais Having thus spoken to the Averment My Lord Let me speak to the general Allegation that he was Impeached for Treason and not saying particularly what the fact was My Lord If they admit the Law that an Impeachment in Parliament does suspend or take away the Jurisdiction of this Court then they have admitted a great part of the fact and then the matter in Question will be what Impeachment in Parliament it is that will take away the Jurisdiction of the Court and there can be but two sorts the one at large where the whole Offence is specified the other not at large but only in general Words the Knights Citizens and Burgesses in Parliament Assembled in the Name of themselves and of all the Commons of England do Impeach such an one of High Treason Now my Lord if so be such Impeachment in Parliament be a good Impeachment then have We I think the most plain Case pleaded that can be as plain as the Fact that this is an Impeachment in Parliament and then this Court is outed of its Jurisdiction They that have gone before have said which I must pray your Lordship to remember That the Court and we are to take notice of the proceedings in other Courts as other Courts are bound to take notice of the proceedings of this Then I would suppose in other familiar Cases there is generally as 't is true in Sparry's Case the Writ or the Declaration which does in all civil Causes set forth the particularity of the thing in Question yet in some Cases we are sure it does not do so but the Course and practice of some Courts admits general proceedings Now where-ever that is so the party cannot mend himself by making their Course otherwise than it is For he must not say it is more particular than the Course of the Courrt does make it Therefore he hath no other way by the Law to bring his matter on and help himself but by an Averment that 't is the same I will suppose a Case of such a Nature as this a man brings an Account in London upon Concessit Solvere and he does not particularize in the Count any thing what or how his Debt did arise But after he brings another Account or delivery aspecial Declaration in an Account of Debt shall not I because the first Declaration is in general Words Aver that this is the same matter that he sued for by the Concessit Solvere which he now sues for in this particular Declaration Or suppose a man in this Court does bring an Account for divers wares and Merchandises sold and does not express any particulars but that he was indebted in general Words for Wares sold and afterwards he comes and brings another Account and says it is for such and such Wares so much for Cloth so much for Wine c. tho' his first Declaration be in general not expressing what the Wares were and the last is particular shall not I come and plead in Abatement to the second Declaration that the first and second were for one and the same thing Suppose again an Indictment of Barrelry be found against a man which is an Offence that is only general and hath no particulars alledged in the Indictment Should not a man that is the second time Indicted come and say this is one and the same My Lord under favour in all these and such like Cases the Law must be Govern'd by its own proceedings and take notice of the Nature of the things depending before the Court. And if so be upon Consideration of the Nature of the thing there is as much of certainty set forth as the Case will admit and is possible to be had we must permit the party to plead as he can and help himself by the Averment Then my Lord the Question is whether an Impeachment generally in Parliament without particularly setting forth for what be a good Impeachment there or no. If they say it is not then the bottom of the Plea is naught and all is quite gone but if they say it is then I have Pleaded my matter as it is For I cannot say that that is particular or make that particular that is not and I have done all that is possible for me to do in my Case I have Pleaded what is in the Record and as 't is in the Record from which my Plea must not vary and I have Averred 'tis for the same matter and you have Confessed it by the Demurrer My Lord I would not intangle the Question but I must Confess I do not see how they can extricate themselves out of this Dilemma if they do admit a General Impeachment is a good Impeachment Then there are fresh Instances of this considerable in the Case as that which hath been particularized
Law that he have a Copy of the Charge L. C. J. Sir Fran. Winnington For you to come and say these things here methinks is very strange I think you can shew us no President that ever so long time was given to any man to Plead to the Jurisdiction of the Court nor that ever a Copy of the Indictment was granted in High-Treason and for you because of the greatness of the Treason therefore to go about to make us believe that it is more reasonable that a Copy of the Indictment should be granted in this Case than in another that the greatness of the Crime should be meritorious and deserve a Favour of the Court not granted in other Cases is a thing extraordinary Sir Fran. Winnington I do not press it that way I pray I may be understood aright upon what appeared the other day upon the nature of the Plea I present it to your Consideration Whether or no when you have been pleased to admit a Special Plea You will not let us see that which we are to Plead to L. C. J. No it was never thought of surely Mr. Just Dolben No it hath been constantly denied in Cases of Felony and Treason and so you will find the practice to have always been But I 'll tell you what hath been done sometimes They have granted some Heads out of the Indictment that should inable the Party to fit his Plea to the Charge and that was done in Wittypooles Case upon a Plea of Auter forti acquit They gave him the Times and some other Circumstances to fit his Plea to his Case but never was there a Copy of the Indictment granted Mr. Wallop My Lord Coke in his Preface to the 3d Report declares That it was the Ancient Law of England and so declared by Act of Parliament in Edward the Thirds time That any Subject may for his necessary Use have access to Records and Copies of them be they for the King or against the King and that the practice to the contrary is an Abusion L. C. J. So then Mr. Wallop you take it that we are bound when any man is Indicted of Fellony or Treason or any Capital Crime if he say he must have a Copy of the Record we must grant him a Copy of the Indictment If you think so the Court and you are not of the same Opinion Mr. Wallop I inform the Court what I have read and seen and where 't is to be found Mr. Williams My Lord It may be necessary for ought we know for him to Plead over to the Fact laid in the Indictment Not Guilty as sometimes it is requisite for the Party to do Now if we should mistake for want of having what is necessary and thereby preclude him of the Advantages he might have had if the Plea had been rightly drawn for ought I know it will lye upon me for ever My Lord I do it merely out of Caution and for my own Reputation sake If any Legal Advantage should be lost by my unwariness it will be a perpetual Reflection upon me And therefore I am so earnest in this Case And my Lord I can tell you what was done in a Case wherein I was of Counsel It was not a Case of Treason indeed but it was Murder the next Crime to it it was the Case of King and Thomas Thomas was Indicted of Murder in one County and found Guilty of Manslaughter and afterwards was Indicted for the same Murder in another County and being to plead this matter I did insist upon it that we ought to have a Copy of the Indictment There was some Debate about it but at last we had a Copy and we alledged there as here it was impossible to plead without it and the Cause was removed hither into this Court for Judgment Mr. Just Dolben The first Indictment you might have a Copy of for you were to plead the whole Record Mr. Williams Nay we had a Copy of that to which we pleaded L. C. J. Mr. Williams You tell us you may peradventure have occasion to plead over when you know t is High-Treason that you are Indicted of in framing and publishing a Treasonable Paper Cant you direct your Client to plead over without a Copy Certainly what you alledge in that for a Copy of the Indictment is Non Causa pro Causa Mr. Just Jones What prejudice will it be to your Client to plead over Sir Fran. Win. My Lord We only offer these things for our selves and we hope we shall not be pressed to do such a thing as this without having reasonable Time to consider and deliberate of it and without having what is necessary in order to it Then Mr. Attorny being sent for came into the Court. L. C. J. Look you Mr. Attorney These Gentlemen that were assigned of Council for Fitz-Harris do move the Court here and say they would have longer Time to draw up his Plea for they must make use of several Copies of Papers and they cannot so soon obtain them nor find out those Records they must use or other things as ingredients to this Plea in so short a time and they say likewise that they desire a Copy of the Indictment Now in truth they ought to have given you notice of this that you might have been here likewise to hear what they say If you do consent to give them longer time we shall be ready to do it but without it we shall not be willing to delay it Mr. Att. General I think your Lordship and the Court gave them a very just and reasonable time when you allowed them four Days and these Gentlemen are mistaken if they think they are assigned as Counsel to all Events They are only to draw up a Plea upon that matter that is alledged by the Prisoner and to the Jurisdiction of the Court. Sir Fran. Win. No My Lord I beg your Lordships pardon The Rule is to plead the special matter without more saying Mr. Att. General My Lord Under favour It is as I say and so is the course of Law For the Prisoner ought to acquaint you with the Points he desires his Counsel to be heard to And in this Case Fitz-Harris did acquaint the Court before he would Plead that he had some thing to object to the Jurisdiction of the Court and so his Wife directed him when she gave him the Paper I suppose she had other advise upon it for she could not draw it up in that Form it was her self and he did acquaint the Court he had matter to Plead to the Jurisdiction of the Court and concluded so in the Paper that was read And thereupon according to his Prayer he had Council assignâ—d him these Gentlemen I consented to it as it was just I should but that they should think that they are to advise him in other matters than that particular upon which they are assign'd I know they know their Duty better than to offer at any such thing
agreed then you may ask our Judgment L. Ch. J. We cannot put you to it to give a final Answer to bind the King therefore let it stand as it is we will consider of it Mr. Attor Gen. Then my Lord I 'le Demur immediately Mr. Sol. Gen. And we pray they may joyn in Demurrer immediately Mr. Serj. Jefferies If they do not mean it for delay now Mr. Attorney hath demurred I suppose they will joyn in Demurrer immediately Then the Clerk of the Crown drew up a general Demurrer which Mr. Attorney Signed and it was read in the Court by the Clerk of the Crown Mr. Attor Gen. We pray they may joyn in Demurrer Mr. Williams My Lord We that are assigned of Counsel for this Gentleman the Prisoner at the Bar that your Lordship may be satisfied and all that hear us that we do not design or desire to delay one Minute in this Cause do declare that we will joyn in Demurrer with them immediately Then the Clerk drew up the Joynder in Demurrer which being Signed by the four Gentlemen of Counsel with Mr. Fitz-Harris was also read in Court Mr. Attor Gen. MY Lord I pray your Judgment here is an Indictment for framing a Treasonable Libel Mr. Williams My Lord we hope we shall not be put Mr. Attor Gen. Pray Sir hear what I pray My Lord I desire your Judgment that the Plea may stand over-ruled for a plain fatal Error in it This is a particular Indictment for the framing a most pernicious scandalous Libel against the King and the Government for Treason in that particular And I think there is no Person does doubt but that this is a Matter within the Jurisdiction of this Court to try There is no difficulty in that What do they do to out this Jurisdiction They come and Plead that Fitz-Harris was Impeached de alta proditione that 's all they plead of High Treason in general to out the Court of a Jurisdiction of a particular Treason for framing a malitious trayterous Libel And this is a particular Treason upon the Statute of the 13 th of this King Now they have pleaded no particular Treason upon that Statute they were Impeached for nor upon the Statute of the 25 th of Edw. the 3 d which hath a general Clause of a Declaratory Power and it may be he was Impeached upon that and we shall not intend it otherwise that being the general Law the other but a particular Law for this Kings Life Now in all Pleas to the Jurisdiction they ought to be the strictest and most certain of any Pleas whatsoever And as I offered before to you so I do now again they ought to be ready with the Record to justify their Plea but this in short I insist upon that to out a Court of its Jurisdiction for a particular Treason 't is not a good Plea by saying he was Impeached or Indicted generally of High Treason and no Averment can possibly help it For it appears by the Impeachment 't is not for the same and 't is rather to be intended that it was not but the Impeachment being general that they went upon a Declaratory Power in the Statute of the 25 th of Edw. the 3 d which reserves to them the Power of declaring Treason at large and not upon that which may be tryed here in an Inferiour Court upon a particular Statute I say my Lord they ought to have pleaded it certainly which they having not done 't is Fatal and I pray your Judgment upon it and I hope they are ready to make good their Plea Mr. Sol. Gen. My Lord That that we do say to it is That this Plea is neither good in Matter nor Form and if it had been pleaded never so formally perhaps we would have demurred to it But as now it is pleaded it is not Formal and therefore we pray it may be over-ruled The Exception we take to it in point of Form we think is Fatal for there is no Man that pleads an Indictment or an Impeachment in another Court but must set forth the Indictment in the Plea which is not done in this Case and we take that to be fatal to it For a Man that will plead auter foitz acquit must set forth the Indictment and all the Proceedings of the Court upon that Indictment this is the constant pleading in all Cases and particularly in Vaux's Case the 4 th Report who ever will plead auter foitz acquit must set forth the Record before it will require an Answer to be given to it L. Ch. J. What do you say to it Gentlemen for the maintaining of your Plea Mr. Williams This is that we say my Lord We hope your Lordship and the Court in this Case will not tye us up presently to come and argue this Matter One thing I would mention because it hath been said there was never such a Precedent I think to this Purpose the Precedent of Elliot's Case is very full in it Mr. Attorney is pleased to say he never found that any Plea to the Jurisdiction did require a Demurrer but was over-ruled or allowed by the Court presently But that Case is plain to the contrary upon that very Matter It was an Indictment brought against Elliot for some Misdemeanours committed by him in the House of Commons this being pleaded to the Jurisdiction of the Court the Attorney General at that time said it was not to be received that was the Matter he insisted on then that should be rejected but the Court did then as you do now over-rule the Attorney in it and put him to demur L. Ch. J. We have done the same for you Mr. Williams Then my Lord here is a Precedent that Mr. Attorney hath not seen Now for time the Court in that Case did not tye the Counsel up to argue the Plea presently but gave them time till the next Term. We ask not so hard a thing of the Court as so long a time in this Case only here is a Man's Life in Question 't is indeed for Treason and so it is of Consequence to the King and there is also the Priviledg of Parliament consequently concerned in it What time your Lordship and the Court shall think reasonable for us to be ready in we leave it to your Lordship we design not to delay at all only we desire a reasonable time Your Lordship did in the Case of Plunket give him time for his Tryal till next Term which is as high a Treason as this I am sure L. Ch. J. You would have People think you have strange measure in this Case that you have not the same time given to you that was given to Plunket Pray consider you object these things as tho the Court were hard upon you to tye you up in point of time Is your Case like Plunket's pray give us leave to clear our Accounts as we go along he is brought from Ireland hither is Indicted for what he did in