that we have not set forth actually that there was any Impeachment I do confess I was a little startled at it for the words of the Plea are that Edward Fitz-Harris by the Knights Citizens and Burgesses was Impeached which Impeachment is in force I do not know how in the world we could have thought of more express words than to say he was Impeached and that that Impeachment is in full force as appears by the Record For the other Objection the other day for we would mention all how little soever they deserve an answer that the King may chuse in what Court he will sue it is agreed when it is at his own suit but this is not so but at the Commons suit and can be no where else prosecuted than where it now depends This is the Method and Course of Parliaments we say and that the Method and Course of Parliaments is the Law of the Land your Lordship will take notice that it is so To conclude as this Plea now stands the Demurrer confessing the matter of it it cannot be over-ruled without deciding whether the Lords can proceed upon such General Impeachments and whether the Commons can Impeach in such a General way We submit the whole to your judgment it is a Case deserves great Consideration as being of great weight and Moment and highly concerns the Jurisdiction of the Lords the Priviledges of the Commons and the Rights of all the people of England Mr. Wallop May it please your Lordship There are in this Plea three Principal Parts upon which it turns which are expresly alledged First That Fitz-Harris before the Indictment was according to the Law and Custom of Parliament impeached of High Treason and this I humbly conceive is confessed by Mr. Attorney upon the Demurrer The Second thing is That this Impeachment be it as it will general or particular does remain in full force and vertue This is plainly alledged and demurred to and so confessed by Mr. Attorney for all things well alledged and pleaded are confessed by the Demurrer The Third great Point and Hinge upon which it turns is this That the High Treason mentioned in the Indictment and the High Treason for which he was Impeached in the House of Lords is one and the same Treason This we have plainly averred and this Mr. Attorney hath likewise by his Demurrer plainly confessed as we humbly conceive For the two former Points there is no difficulty in them and therefore I shall pass them over 'T is this third matter which I take to be the only point in the Case and if we have well averred it and can by Law be let into such an Averrment then I hope your Lordship and this Court will not pretend to go on in this Case They Object and say because he is Impeached of High Treason generally without naming any particular Treason that cannot be averred to be the same and a Demurrer does never confess the truth of that which by Law cannot be said but if it may be said and is said plainly then the Demurrer confesses it My Lord I humbly conceive this matter is well averrable and we have taken a good Averrment I grant that a repugnant and an impossible Averrment cannot be taken as to averr a Horse to be a Sheep which is apparently repugnant and impossible and in that Case a Demurrer can never confess the truth of that which appears impossible to be true But My Lord if there be no Impossibility nor Repugnancy nor Contradiction in the Averrment between the matters that are averred to be the same as there is not between that which is but generally expressed and that which is more specially alledged where all may well stand together and the one includes the other and needs only some farther explanation it is not only allowable to avert it but most proper and in such case only necessary For quod constat claâ—â—â—â—â—â— debet verisicari in this Case it is not necessary that it should appear to the Court upon the view of the Indictment and Impeachment that the matter contained in both is the same but it is sufficient that it be proveable upon an Issue to be taken And so much is admitted by the Judges in Sparries Case Co. 5. rep 51. that if there be convenient certainty which may be put in Issue it is sufficient and consequently not necessary to appear at the first but upon the event of the issue afterwards to be tryed And if they intend it otherwise I confess I understand them not It is true it must appear to the Court either at the first opening or upon an Issue subsequent to be found And My Lord if this matter may appear at first or at last and the thing is possible to be proved then we are well enough In Corbet and Barnes Case in the first Croke fol. 320. a Battery supposed to be in London and a Battery supposed to be in Herefordshire were averred to be one and the same Battery which naturally is impossible yet being transitory and therefore supposable to be done in any County such an averrment is allowable though it seemed contradictory and could not appear to the Court by comparing the several declarations to be any way the same And there being a Demurrer for that Cause in that Case the truth of the averrment was ruled to be confessed by the Demurrer And so hereby the Demurrer the truth of the suggestion that the Treason in the Impeachment and the Treason in the Indictment is one and the same is confessed By taking this Averrment we offer them here a fair Issue an Issue of Fact tryable by a Jury wherein the Attorney General might have joined with us if he had pleased but refusing that and having demurred and thereby confessed what we have alledged it must be taken to be true as if found by a Jury And My Lord That this matter is properly averrable and tryable I think 't is plain it being a Question of Fact which is properly triable by the Countrey and if they had taken Issue upon that we might have gone to a Jury where the matter would have been easily proved For upon Evidence given the Jury might fairly take into consideration the reading of this very numerical Libel set forth in the Indictment and the particular and special debates of the House of Commons thereupon And that upon those very Debates the House voted that Fitz-Harris should be Impeached for matters contained in that Libel And that upon those Votes the Impeachment was carried up to the Lords This is Evidence sufficient that the House of Commons did intend to accuse him of the same Treason contained in the Indictment which proves the Issue that is that the Treason contained in the Impeachment is the same with that contained in the Indictment neither is this to put the Intention of the mind or secret thoughts of the heart in Issue which is against the rules of Law but to put them into
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
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
a positive Answer by any means Mr. Attor Gen. My Lord he told me he was not in England then and that he knew no more than what he had discovered Mr. Fitz-Harris Did I say so Mr. Attorney Mr. Attor Gen. Yes you are the Man Mr. Fitz-Harris I can bring twenty Witnesses I did not tell you so and I can bring 500 Witnesses that I was in Town then L. Ch. J. Lieutenant of the Tower take your Prisoner and be here before eight a Clock on Saturday Morning Sir Fra. Win. My Lord now I desire we may have a Copy of the whole Record L. Ch. J. Not of the Indictment but of the Plea and Demurrer you may Sir Fra. Win. But my Lord I hope you will let the Indictment be read upon Saturday because Mr. Attorney hath fixed his Exception upon part of the Indictment which is the Libel that he calls the particular Treason and I desire it may be in Court L. Ch. J. It shall be and if you have any occasion of Reference to it we will look upon it we are all upon our Oaths and must take heed that no Prejudice be done to the King as well as to see the Prisoner have no unfair thing put upon him Then the Prisoner was carried back to the Tower On Saturday the 7th of May 1681. Mr. Fitz-Harris was brought to the Bar of the Court of King's-Bench about eight a Clock in the Morning Mr. Williams MAy it please your Lordship I am assigned of Counsel for this Person Mr. Fitz-Harris the Prisoner at the Bar. Mr. Attor Gen. My Lord if you please I will only briefly acquaint them with what our Exceptions are that they may apply themselves to them L. Ch. J. Look you Gentlemen I must tell you all our time is strait enough for this Matter for we are all of us to be by and by with all the Judges in the Exchequer Chamber therefore we pray this of you we will abridge no Man's speaking what is material for his Client but we desire you will keep to the Matter and the Points in Question between you and save our time as much as you can Mr. Attor Gen. That is the reason my Lord why I would lay my Finger upon those Points that will be the Questions between us Now the Exceptions I take to the Plea are these This is a Plea to the Jurisdiction of the Court and some of our Exceptions are to the Form and one is to the Matter To the Form my Exceptions are these First we say that the general Allegation that he was Impeached de Alta Proditione is uncertain and too general It ought to have been particularly set out that the Court might judg whether it be the same Crime and it is not helped by the Averment And the next Exception I take to it is here is no Impeachment alledged to be upon Record I mentioned this the last time and looking more strictly into it I find 't is so as I said For they come and make a general Allegation that Fitz-Harris such a time was Impeached Impetitus fuit by the Commons before the Lords Quae quidem Impetitio in pleno robore existit prout per Recordum inde c. Now my Lord there is no Impeachment mentioned before And quae quidem Impetitio is a Relative Clause and if there be no Impeachment mentioned before in the Plea then there is nothing averred upon the Record to be continued or discontinued for Impetitio does not actively signify the Impeaching or passively the Person Impeached but it signifies the Indictment or Impeachment that Instrument which contains the Accusation and which is to be and remain upon Record Therefore when they come and say he was Impeached and afterwards alledg Quae quidem Impetitio remains upon Record that cannot be good If a Plea should be Indictatus fuit and afterwards they say quod quidem Indictamentum c. It cannot be good for the Relative there is only illusive These are our Exceptions to the Form For the Matter of it 't is a Plea to the Jurisdiction of the Court and with submission there the Point will be whether a Suit depending even in a Superior Court can take away the Jurisdiction of an Inferior Court who had an Original Jurisdiction of the Cause of the Person and of the Fact at the time of the Fact committed What use might be made of it as a Plea in Bar might be of another Consideration but whether this be enough to make it amount to such a Plea as will take away the Jurisdiction of a Court that had an Original Jurisdiction that 's the Question before you These are the Exceptions I take and do insist upon And I desire my Lord the Counsel will apply themselves to these Exceptions to answer them and when we have heard what they can say I hope to give them an Answer Mr. Williams My Lord I am assigned of Counsel for the Prisoner at the Bar Edward Fitz-Harris who is Indicted here for High Treason and hath pleaded a special Plea to the Jurisdiction of the Court And I must crave leave to state his Case upon the Indictment the Plea to the Indictment and the Demurrer to the Plea And the Case my Lord upon the whole Record stands thus He was Indicted this Term by one of the Grand Jurie's for this County of High Treason As to the Indictment it cannot be expected I should state the Parts of it it being an Indictment I never saw To this Indictment thus presented Fitz-Harris hath pleaded thus That he ought not to be compelled to answer to this Indictment because that before the Indictment was found at a Parliament held at Oxford the 21 st of March last he was impeached by the Knights Citizens and Burgesses of the House of Commons in Parliament Assembled in the Name of themselves and of all the Commons of England of High Treason and that this was before the Court of Lords in that Parliament He says further that this Impeachment is remaining in full force and effect before the Lords in Parliament prout per Recordum inde in t ' Record Parliamenti remanens plenuis liquet apparet These are the Words of the Plea And then he avers that the High Treason mentioned in the Indictment and the High Treason specified in the Impeachment are one and the same And he further avers that he is the same Fitz-Harris named in that Indictment and mentioned in the Impeachment And after the Averments he concludes to the Jurisdiction of the Court Whether upon all this Matter they will proceed any further against him upon this Indictment and demands the Judgment of the Court to that purpose Upon this Plea Mr. Attorney hath demurred generally and we that are of Counsel for the Prisoner have joyned in Demurrer with him Now in this Case which thus comes before you for your Judgment upon this Plea and this Demurrer I take these things to be admitted First That
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
with Impunity but the preference was given to the person more particularly concerned and the Kings Indictment must stay till the year and day were out to see whether they will proceed in their suits And so says My Lord Chief Justice Hales in his Pleas of the Crown 2442 45. Then à minori admajus does the Law so regard the interest of the Wife or the Heir c. in their suit and has it no regard to the suit of all the Commons of England For manifestly an Impeachment is the suit of the people and not the Kings suit That 's the 2. Reason another Reason I shall urge is that which was touched by Mr. Williams Suppose this man should be tryed here and be acquitted Is it to be presumed that he can plead this acquittal in Barr to the Impeachment before the Lords My Lord I believe there is no considering man in England that has regard either to the Jurisdiction of Parliament or to the Nature of the suit will affirm that it would be a good Plea and that he could barr the great Court of the Kingdom from proceeding against him by saying he was acquitted by a Jury in Westminster Hall after the suit was first well commenced in that Court My Lord I say with reverence to the Court that should you proceed in this Tryal it may fall out that contrary to a Fundamental Rule of Law a man shall be twice put in danger of his Life for one offence which by the Law he cannot be and therefore I urge that as a reason why you cannot proceed here on this Indictment My Lord I will now mention two or three Precedents which will prove that this Impeachment is according to the Course and Law of Parliaments though it may seem needless after the Kings Learned Council have agreed it My Lord I shall first mention the Case of Michael de La Poole Rot. Par. 18 or 28 H. 6. n. 18 He was a very great man and came to the House of Lords voluntarily and said there was a Rumour that he was Guilty of horrible things Lord Chief Justice Where did you take this Case out of Cotton it is mentioned there But I have seen a Copy of the Roll. Sir Fran. Win. Yes My Lord There upon the Commons pray he may be committed upon his own confession and that the thing being Debated in the House the Lords said we know not what was meant by those words horrible things it may import only Misdemeanours if it had been said Treason we had known how to have proceeded thereupon And thereupon within a few days after the Commons came and accused him of Treason and there 't is said that the Course of Parliament is to find out the Truth by Circumstances and such degrees as the Nature of the thing will bear and they are not confined to the strict rules of other Courts I will not cite any more ancient Cases though there are many to be found of general Impeachments for we are not disputing what is the right and course of Impeachments which is confessed upon the pleading but we have had several Cases of late the Earl of Clarendon was Impeached generally and the Commons took time to bring in their Articles and I have had the experience in 3 or 4 a Parliaments wherein we have been pretty well busied with Impeachments though we have had no great success in them That though the Commons may if they please carry up particular Articles at first yet the Law and course is for the Lords to receive the general Impeachment and the Commons say that in due time they will bring in their Articles So it was done in the Case of the Popish Lords some particular Member was appointed to go up and Impeach them of High Treason in General and in that Case though the Parliament was Dissolved before any Articles sent up yet afterwards in the next Parliament the Articles upon the former Impeachments were sent up and receiv'd and My Lord â—â—â—fford since executed upon his Conviction upon that Impeachment yet Indictments were exhibited against them before ever any Impeachment was sent up by the Commons and preparations were made for their Tryals But from that day to this there hath been no attempt to Try them upon their Indictments though there have been several Intervals of Parliament Our Case is stronger than that of the Lords for in the Case at the Bar the first suit was in the House of Lords by the Commons whilst in the other Case the first was the suit of the King by Indictment and yet by a subsequent Impeachment that was stop'd and the Lords continue yet Prisoners in the Tower Our time hath been so short that we could not see the Copies of Orders which we might otherwise have made use of for maintaining this Plea we sent to the House of Lords but the Officers were out of Town and we could come at the sight of nothing there we have been told the opinion of the Judges was delivered at Council concerning these very Lords that the Impeachments being lodged in Parliament no other prosecution could be against them till the prosecution of the Commons was determined So far the Courts below have always been from meddling with the Jurisdiction of Parliament that even many times in Questions upon Acts of Parliament they have gone up to the Parliament to know what was meant by it And I remember it was said by the Court in that Case of My Lord of Shaftsbury where it was agreed by all that the Commitment was too general for it was only for a Contempt whereas the Crime ought particularly to appear in the Warrant that it being in a Case of Commitment by the Parliament at least while that Parliament was continuing they ought not to meddle with it nor could they inquire into the formality of the Warrant My Lord I must mention one thing touching the Case of My Lord Hollis which was cited by Mr. Williams and I have but a word to add It is in the Appendit to the first part of Rushworth's Col. and also in Croke Car. fol. 181. It was there pleaded to the Jurisdiction of this Court that it was a matter done in Parliament In our Case his pleaded that an Impeachment is depending in Parliament that was but a prosecution for a Misdemeanor this is a Case of High Treason it fell out in that Case the Court here did adjudge that the Information did lye but upon a Writ of Error it was agreed by the Lords unanimously that the judgement was Erroneous and that the Parties should be restored to all which they had lost by reason of it but if this man should lose his Life by your judgment what help would there be upon a Writ of Error The danger of such a thing requires great consideration and it would be of fatal consequence if the Lords should hereafter adjudge that this Court had no Jurisdiction As for Mr. Attorneys objection to day
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
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
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
you if you have any thing wherein you can amend it either in matter or form If you will let us know it we shall consider of it But if you have not if you abide by this Plea then we do think 't is not reasonable nor will be expected of us in a matter of this consequence to give our Judgment concerning this Plea presently All the Cases cited concerning Facts done in Parliament and where they have endeavoured to have them examined here are nothing to the purpose at all For plainly we do not assume to our selves a Jurisdiction to inquire of such matters for words spoken or Facts done in the Commons-House or in the Lords we call none to question here nor for any thing of that nature which takes off most of the Instances you have given but our Question is barely upon the pleading before us whether we have a sufficient pleading of such an Impeachment as can foreclose the hands of the Court And as to that we shall take some reasonable time to consider of it we will not precipitate in such a Case but deliberate well upon it before we give our Judgment Take back your Prisoner Mr. Att. Gen. Before he goes away we hope you will set a reasonable time as short as you can to have him come again for your Judgment L. C. J. Mr. Attorney we can send for him when we please to come hither by Rule you see this business is come on in the busy part of a Term and 't is impossible for the Court to attend nothing but this we will take some reasonable time Then Fitz-Harris was carried back to the Tower On Tuesday May 10. Mr. Attorney moved the Court to appoint a day for their Judgment on the Plea and for Fitz-Harris to be brought up which they appointed to be the next morning And accordingly on Wednesday morning May. 11. he was brought from the Tower to Westminster-Hall Mr. Att. Gen. My Lord I pray that Fitz-harris may be brought to the Barr. L. C. J. Where is the Lieutenant of the Tower bid him bring Fitz-harris to the Barr which was done Mr. Att. Gen. My Lord I pray your Judgment on the Plea L. C. J. Why Mr. Fitz-Harris you have been Arraigned here for High-Treason and it is for endeavouring and compassing the Kings death and other Treasons specially mentioned in this Indictment you have pleaded here to the Jurisdiction of this Court that there was an Impeachment against you by the Commons of England in Parliament before the Lords for the Crime of High-Treason and you do say that that Impeachment is yet in force and you do say by way of averment that this Treason whereof you are now Indicted and the Treason whereof you were Impeached by the Commons of England before the Lords are one and the same Treason And upon this the Attorney General for the King hath Demurred and you have joyned in Demurrer And we have here the arguments of your Counsel whom we assigned to argue it for you we have heard them at large and have considered of your Case among our selves and upon still consideration and deliberation concerning your Case and all that hath been said by your Counsel and upon conference that we have had with some other of the Judges we are three of us of Opinion that your Plea is not sufficient to bar this Court of its Jurisdiction my Brother Jones my Brother Raymond and my Self are of Opinion that your Plea is insufficient my Brother Dolben not being resolved but doubting concerning it And therefore the Court does order and award That you shall answer over to this Treason Cl. of Cr. Edward Fitz-Harris Hold up thy hand Mr. Fitz-Harris My Lord I desire I may have Liberty to advise with my Counsel before I plead L. C. J. Mr. Fitz-Harris When you proposed a difficulty you had in a matter of Law the Court were willing to assigne you Counsel because 't is known you cannot be a fitting person to advise your self concerning the Law But as to this we cannot assigne you Counsel 't is only a matter of Fact whether you be Guilty or not Guilty Therefore in this Case you can't have Counsel allow'd to advise you Mr. Fitz-Harris My Lord I desire before I plead or do any thing of that nature that I may make an end of my Confession before your Lordship and some of the Privy Council L. C. J. Look you Sir For that you have trifled with us already you pretended you had some scruples of Conscience and that you were now become another man and would reveal and discover the whole of this design and Plot that you are said to be Guilty of here but you have trifled several times concerning it and we can say nothing concerning that now we must now have your Plea if afterwards you have a mind to confess and be ingenious you may do it but now you must either plead or not plead Mr. Fitz-Harris My Lord I have some Witnesses a great way off and I desire time to have them ready for my defence Cl. of Cr. Edward Fitz-harris Hold up thy hand which he did Thou hast been Indicted of High-Treason upon that Indictment thou hast been Arraigned and hast Pleaded to the Jurisdiction of this Court To which Plea His Majesties Attorney-General hath Demurred and thou hast joyned therein And upon the whole matter this Court upon mature and considerate deliberation is of opinion that thou oughtest to answer Over How saist thou Art thou guilty of the High-Treason whereof thou hast been Indicted and hast been Arraigned or not Guilty Mr. Fitz-Harris Not Guilty Cl. of Cr. Cul. Prist c. How wilt thou be tryed Mr. Fitz-Harris By God and my Country Cl. of Cr. God send thee a good deliverance L. C. J. Now if you have any thing to move do it We could not hear your motion till you had pleaded for the method of the Court must be observed Mr. Fitz-Harris I have some Witnesses at a distance my Lord. L. C. J. Where are your Witnesses Mr. Fitz-Harris I have one Witness in Holland a very material one that I am much concerned to have for my Life Mr. Just Jones What is his Name Mr. Fitz-Harris His Name is Steward my Lord. L. C. J. Look you Mr. Fitz-Harris I 'le tell you reasonable time is allowed to all men to make their defence in but when a man is in Holland I know not what time you will take for that Mr. Fitz-Harris What time your Lordship thinks fit for a man to return from thence hither L. C. J. Look you Mr. Attorney Why should not we allow Mr. Fitz-Harris time for his Trial till next Term Mr. Attorn Gen. I think he hath not offered any thing to entitle him to it he doth not tell us And I would fain know what the Witnesses will prove Mr. Just Dolben It may be Mr. Attorney will confess what t is that Witness can prove Mr. Att. General For the