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
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
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
this Person come to be Indicted again for the same offence there is a Record for him to plead that will shew forth the whole matter and if he does not plead that Record 't is his own default But in this Case here is no such Record to plead and there is the mistake upon which Mr. Attorney hath gone all along And you must in this Case be governed by the Rules and Methods of Parliament which is this the Commons in the name of themselves and of all the Commons of England Impeach such a person and they bring up this Impeachment to the Lords in general and there they have Liberty to present Articles in due time after due Consideration which ought not to be done hastily All this is no Record such as may be had in the Case of auter foitz acquit for first the Impeachment of the Commons is no Record when 't is brought up to the Lords there is only an entry into the Journal for the Lords that such a day such a person came from the House of Commons and Impeached such a one And you are not to expect the same strict Method and form of proceeding as in other Courts the Courts of Westminster-Hall or inferior Courts Your Lordship in this Case must be governed by such a proceeding as is in Parliament And must take it as it is and we have said enough and as much as can be in our Case We have not indeed set forth an Indictment a Plea a Venire facias c. For there is no such proceeding in Parliament but there was an Impeachment by the Commons in the name of themselves and of all the Commons of England before the Lords that it is in pleno robore Effectu and that it was secundum legem consuetudinem Parliamenti prout patet inde inter Recorda remanen c. And here is enough For when we refer you to a Record that is as much as if we had set forth the Record it self for we tell you there is such a Record and we point you to the place where you may find it So we take it 't is a very full Plea and if not 't is as much as any man can plead in such a Case though it be not pleaded particularly And My Lord that your Lordship is to judge in this Case according to the Methods of Parliament I depend upon the authority of My Lord Coke I will repeat you some of his words speaking of the Law of Parliaments he says and he borrowed it out of Fleta That this high Court of Parliament propriis suis Legibus 〈…〉 Et ista lex ab omnibus quaerenda à multis ignorata à paucis Cognita But he tells you and certainly he says true in it Who ever will be learned in the Law of Parliaments must repair to the Rolls of Parliament and give me leave to cite his Opinion which I hope may be of great weight with this Court It is in the fourth Institutes fol. 15. He says for any thing moved or done in the House of Commons it ought to be determined adjudged and discussed by the course of Parliament and not by the Civil Law nor yet the Commons Laws of this Realm used in more inferior Courts which was declared so to be secundum legem consuetudinem Parliamenti concerning the Peers and the like pari ratione for the Commons and that stops this Court in our Case For so it is said in this Plea which is the matter you are to be governed by that it is secundum legem consuetudinem Parliamenti He tells you further there is no notice to be taken of any thing said or done in the House of Commons but by the Report of that House and every member thereof hath a judicial place he takes it out of Henry the 7th and so the Book is expresly And he goes on this is the reason that Judges ought not to give any opinion of matters of Parliament because it is not to be decided by the Commons Laws but secundum legem consuetudinem Parliamenti So he tells you you are bound by the Methods of Parliament and I need not press the thing much after his authority for he was learned in Parliament matters But I would crave leave to mention a Case that was lately in this Court and that was the Case of My Lord of Shaftesbury who was brought by Habeas-Corpus to this Court and upon that Habeas-Corpus it was thus returned that he was committed by order of the Lords in Parliament there to remain during the pleasure of the King and of the House of Lords And this for an high Contempt committed in that House Upon this return we insisted that My Lord might be bailed because it was uncertain the pleasure of the King or the House of Lords and upon reading the Order there is no Crime expressed but only in general for an High Contempt I speak it not for the particular Cases sake but to apply the reason of it to our Case the reason then given by the Judges Mr. Justice Jones will please to remember it for it was particularly declared by him why they could not baile My Lord was this He was pleased to say we in this Court take notice of the Court of Exchequer and other Courts in Westminster-Hall and it would be strange if we should not take notice of the Course of Parliament and House of Lords And if you are bound so to do in other Cases you are bound to do so in this And if without pleading you take notice of the Course of those Courts you will also take notice of the Law of Parliaments and Customs of Parliaments and that I may make use of it to our purpose in this Case we need not particularly say secundum legem consuetudinem Parliamenti in hoc instancing in this and that and t'other particular but the Court is to look into it without my pointing to the particular Law of Parliament So that My Lord here is ground enough before the Court and I know the Court will look into it before they give judgement The second Exception is this that it is not said in the body of the Plea that Fitz Harris is impeached for this Treason but it comes in only in the Averment Now My Lord as to that we must pursue the Impeachment as it is in the Lords Journal 't is for Treason generally there and 't is said to be secundum legem consuetudinem Parliamenti which goes to all and there is a Record of it among the Records of Parliament and Mr. Attorney hath confessed it by the Demurrer And that this is the same Treason we do Aver in fact which also is confessed by the Demurrer and your Lordship will see by the Records and forrus of Entries in Parliament that I may not repeat things over and over again that this is the Course and Method of Parliaments Mr. Attorney hath fancied an Exception of
evidently appear That it is in no sort a parallel Case The matter which I conceive is confessed by the Demurrer is that there is an Impeachment by the Commons of England of High Treason against Fitz. Harris lodged in the House of Lords secundum Legem consuetudinem Parliamenti And that the Treason for which he was Impeached is the same Treason contained in the Indictment to the which the Prisoner hath now pleaded Upon this matter of fact so agreed the general Question is Whether an Impeachment for Treason by the House of Commons and still depending be a sufficient matter to oust the Court from proceeding upon an Indictment for the same Offence My Method will be shortly to speak to these things Lord Chief Justice Pray let us give you some direction that is not the question nor can come in Question in the Case you mistake the points of the Case Sir Fran. Winning Why My Lord Lord Chief Justice The Question is whether you have pleaded sufficient matter here to out us of our Jurisdiction It is to no purpose to put Questions in the Case that are not in it Sir Fran. Winning My Lord I know the Case is very nice and tender on all sides and therefore may very well bear an interruption however I express'd my self my meaning is the same with your Lordships The Method that I shall proceed in will be this I will suppose the Case before you had been of an Impeachment containing the special Treason for which he is now Indicted I will shew in the next place that as it is now pleaded 't is as available as if the Impeachment in the House of Lords had mentioned the particular Treason I shall then give some reasons why it is so and mention one or two Precedents that have not yet been cited Two of the Kings Council did agree that they would not make a doubt of the Plea if there had been a particular Impeachment and therefore I would by considering what would be the reason of that Case apply it particularly to the present Case The House of Lords is a Superior Court to this And is agreed to be the Highest Court of Record in the Kingdom Plowden 389. Co. Litt. 109 110. 9. Co. in Prâ—…fat And then I am within the Common Rule of Pleading according to the differences taken in Sparries Case 5. Co. 61. and 62. That a suit first Commenced in an Inferior Court cannot stop a suit in a superior Court though subsequent but a suit in a Superiour Court may be pleaded to stop the procedings of one that is Infeor And though it may be objected here that the Parliament is determined and dissolved and so there would be a failure of Justice yet this Objection is of no force for if once the suit be well Commenced in the Superior Court it cannot after go down to the Inferior And what is begun in one Parliament may be determined in another so is the Case 4 Edward 3. n. 16. of the Lord Barkeley and those that were accused for the death of Edward the 2. And though it was objected there as hath been here that by this means there might be a stop of Justice by the Dissolution of the Parliament yet the short and the true answer is that it is in Law to be presumed Parliaments will be called frequently to consider of the business of the Kingdom and redress grievances according to the several Statutes made for that porpose 4. Ed. 3. cap. 14. 36 Ed. 3. cap. 10. I shall labour this no farther but taking it as the common Rule of pleading that a Record in a Superior Court may be pleaded to stop a proceeding in an Inferior I shall come to prove that this Record is well pleaded and could not be otherwise unless Mr. Attorney would have had us plead what is false this being the truth of the Case for the Commons did Impeach Mr. Fitz Harris generally of Treason as 't is the Course of Parliaments for them to do and in our very Plea we alledge that he was Impeached secundum legem consuetudinem Parliamenti and so Mr. Attorney hath confessed by the Demurrer and if they may prefer an Impeachment in general accord-to the Law and Custom of Parliament why then so far it must be allowed that we have pleaded well that he was Impeached of Treason It is very true My Lord If a man will plead generally that he was Indicted of High Treason this would be ill because the Court cannot take it otherwise than he has pleaded it and such a general Indictment would be altogether void and therefore no Averment could make it good or supply that generality and uncertainty But an Impeachment generally for Treason is good and warranted by the Law and course of Parliament and so confess'd by the Demurrer And so your Lordship will take it to be and will give Credit that all is regular in the proceedings of that High Court You will presume even in the Ecclesiastical Courts as My Lord Coke says in the 4th Report that all things are rightly done when they have a Jurisdiction à fortiori you will believe the greatest Court in the Kingdom does proceed regularly My Lord Coke in the 4th Inst fol. 14. and 15. does say what the Law and Course of Parliament is the Judges will never intermeddle with They always leave it to the Parliament who are the Superior Judges and are to determine the matters before them For they take notice that the Course of a Court is the Law of a Court as 't is in Lane's Case in the 2. Report in the Case of the Exchequer And therefore if a general Impeachment is secundum legem consuetudinem which is confessed by the Demurrer in this case then you must take it for granted that the Parliament proceed rightly and that such a general Impeachment is sufficient in Law There is a famous Case that strengthens what I say 11 Ri. 2 di Rot. Parl. par 2. the Case of the Lords Appellants You will find it also cited in Rushworths Col. part 1. in the Appendix fol. 51. Tresillian and others were appealed against for Treason and both the Judges of the Common and of the Civil Law were by direction of the King called to advise of that matter And they did all declare that the proceedings in that Case were neither agreeable to Common Law nor Civil Law But the Lords in Parlialiament said it did not belong to the Judges of the Common Law or Civil Law to guide them but that they ought to proceed according to the Course and Law of Parliaments which are the words of our Plea and that therefore no opinion of theirs should out them of their Jurisdiction or alter the Course and Method of proceedings My Lord this Case is very remarkable but I will go a little further the Judges in all Ages have been so far from taking upon them to judge of the Laws and Customs of Parliament that
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