is in Croke Car. I confess 't is not in the first Impression but it is in the 2. Edition that I have and these are the expressions in it Lord Chief Justice What Case is that Mr. Williams 'T is in Croke Car. but the Reversal was in 19 of this King Lord Chief Justice Was the judgment given do you say 19. of this King Can a Case of that time be reported in Croke Mr. Williams I don't say so absurd a thing If your Lordship will have patience to hear me I 'le tell you what I say My Book which is the 2. Impression of Croke reflecting upon that Case in 5 Caroli does publish the Votes of the House of Commons about it and the Reversal of the judgment in the 19. of this King There the proceeding is this Information is given to the House of Commons that there was such a Case published which did Derogate much from the priviledge of Parliament invading the Liberty of speech and the House of Commons considering the Consequence ordered the book to be sent for and read and taken into Consideration and debated and upon Debate the House came to this resolution That the judgment against Elliott and others is an illegal judgment and against the freedom and Liberty of speech and this Vote they send up to the Lords where 't is confirmed and resolved in agreement with the Vote of the Commons And by the way in Answer to a Paper that is commonly spread about by the name of the Observator I say the Commons come to a Resolution and pass a Vote which is not indeed a Law and when they have done that they may transmit their opinions to the Lords and desire them to concur then the Lords and Commons have a Conference upon it and at the Conference the Commons reasons are delivered which the Lords take up with them to their House and debate them Then they come to a Resolution to agree with the Commons Afterwards upon this Resolution of both Houses they go regularly to work by Writ of Error to reverse the judgement And if it should fall out in this Case that your Lordship should give judgment against the Plea and this person should be obstinate and not plead over and thereupon your Lordship give judgment of death upon him it may come to be a very hard Case if a Writ of Error should be brought in Parliament to reverse this judgment and it should be reversed when the party is dead Therefore it will be of great Consequence in that particular My Lord I 'le mind you of one old Case it was 20 of Ri. 2. a person there presents a Petition to the Commons in Parliament and it seems there was something suggested in the Petition which did amount to High Treason as there may be some Petition or some Complaint against a great Minister that may contain an Insinuation as it were of High Treason he was indicted out of Parliament for High Treason and was found Guilty and by the grace of the Prince he was pardoned but because the Commons would not lye under that Precedent of an Invasion of their Priviledge though he was a person without doors that prepared the Petition and no more hurt done to him but the prosecution he being pardoned the judgment was voided Lord Chief Justice Where is that Authority Mr. Williams 20. Ri. 2. Ro. Parl. 12. And you will find it in the Argument of Selden's Case published in Rushworth's Collections fol. 47. and 48. And now My Lord I have done with the substance of the Case with my reasons for the matter and for the form In this Case here is the Life of a person before you here is the right of the Commons to Impeach in Parliament before you here is the Judicature of the Lords to determine that Impeachment before you here is the Method and proceedings of Parliament before you and how far you will lay your hands upon this Case thus circumstantiated we must submit to you but I hope you will proceed no further on the Indictment Lord Ch. Just Pray Gentlemen let us a little direct you not to spend our time about that which is not to the purpose or that is not in the Case here is nothing of the Commons Right to Impeach in Parliament before us nor of the Lords Jurisdiction nor the Methods of Parliament in this Case they are things quite foreign to the Case and the matter in hand which is whether this Plea as thus pleaded be sufficient to protect the Prisoner from being questioned in this Court for the Treasonable matter in this Indictment before us Therefore you ought not to spend time in things that are not before us to be considered being out of the Case For we have nothing to do with any Priviledge of Parliament or of either of the Houses here at this time Mr. Justice Jones And Gentlemen there is nothing at all here of any fact done in Parliament that can be insisted on here nor is there any Complaint against Mr. Fitz Harris for any thing he hath done in Parliament All Mr Williams Precedents run to that but this is for a thing done without doors Lord Chief Justice We speak to you to come to the point which is the duty of all Courts to keep Counsel to the points before them The Sole matter before us is whether this be a good Plea to Ouste this Court of a Jurisdiction which otherwise unquestionably we have of this matter Mr. Williams 'T is a hard matter for the Barr to answer the Bench My Lord. Sr. Fra. Wnning My Lord I shall pursue your direction as well as my understanding will give me leave and save your time as much as I can but the Court having assigned us of Counsel you will give us leave to use our discretion keeping as near as we can to the points of the Case and to the Pleading But if upon the reasoning of this Case other Parliament Cases fall in I hope you will give me leave to cite them for maintaining our Plea The Plea here is to the Jurisdiction and consists of two parts first matter of Record which is that an Impeachment is depending in the House of Lords for so it must be taken upon the pleading as I shall manifestly prove the second is matter in pais viz. the Averment that the Impeachment and Indictment are for one and the same Treason and the Plea is made up of these 2 parts together with an Averment that the person is the same The Kings Attorney hath been pleased to Demur generally to us and I am sure that if our Plea be well and formally pleaded all the matter of fact is confessed by the Demurrer Mr. Attorney did to my apprehension make but one Objection the other day and he still insists upon it That here is a Record too generally pleaded and they compare it to the common Case of an auter foitz acquit upon another Indictment but I hope to make it
Grammar an Adjective for a Substantive but I take it to be as well as any man can plead in this Case For what says the Prisoner The Knights Citizens and Burgesses in Parliament assembled did Impeach me which Impeachment is still in force before the Lords I take it to be as plain as can be If they did impeach me then there was an Impeachment it can bear no other sence My Lord another Exception and which was thought a strong one the other day and strongly urged is that the King may chuse his Court and they compared it with the other Courts but there is the mistake that runs all along in this Case 'T is no doubt the King may chose his Court for his own action and suit but the Impeachment is an Impeachment of the Commons and their suit is to be tryed no where else but in Parliament And the Case that was the other day cited by Mr. Attorney for this purpose is true of the person that was arraigned for Treason and had been Indicted and arraigned in Ireland and he may be arraigned and tryed here there is no Question of it but to say therefore that this is a Consequence from that Rule that therefore he will chuse whether he will proceed in Parliament upon the Commons Impeachment and put a stop to the proceeding of the Parliament by proceeding in this Court I take to be a great Non sequitur My Lord I have offered these Reasons as to the form of the Plea to maintain it Now as to the Precedents I would a little speak what hath been done in the like Case where this Court hath taken hold of Causes and the prosecution of the Court hath been stop'd by Pleas to the Jurisdiction and what hath been done upon those Pleas What doom they have had I will hint some of them to you There was a Case mentioned by your Lordship the other day the Bishop of Winchesters Case 3 Edw. 3. I dare not say that I have looked upon the Parliament Roll but my Lord Coke tells us he hath recited the Record de verbo in verbum in the 2. Institutes fol 15. there are all the proceedings it was not an Indictment for my Lord Coke contradicts that and says it was a declaration there the Record at large sets forth that the Bishop of Winchester was attached to answer the King for that whereas at a Parliament held at Sarum it was ordained per ipsum Regem ne quis ad dom Parliament summonitus ab eodem recederet sine licentia Regis And that this Bishop in contempt of the King recessit without leave of the King I think 't is rather an action than a Criminal proceeding what says the Bishop to this He comes and says si quis deliquerit erga Dominum Regem in Parliamento aliquo in Parliamento debet corrigi emendari non alibi in minore Curia quam in Parliamento c. What becomes of this Plea 't is strange there should be such an Inhibition that no man should depart without leave of the King and the Bishop be punished for it we do not find any Judgement was given nor would they venture to do it My Lord Coke hath a mark upon it for this very reason it looked as if there was a design to weaken the Parliaments by bringing their proceedings into Westminster-hall but they would not do it they would give no judgment for the King but for ought appears the Plea stood Then there is the other Case of Mr. Plowden and many more in primo secundo Phil. and Mar. where a great many of them some whereof were Burgesses and they submitted but he did not The Information there is this that these persons were summoned to the Parliament and departed from thence without the leave of the King and Queen though it was prohibited by them that any should depart most of them submit to a Fine and if it had rested there it might have turned to the prejudice of the Commons as an example But Mr. Plowden he pleads as one that understood himself and the power of Parliaments and their proceedings very well and considers the time to have pleaded in says he continued in the Parliament from the beginning to the end of the Parliament but he relies not there but he brings a traverse full of pregnancy and if our Plea be faulty theirs was 100 times as faulty Absque hoc that he the said Edmond Plowden the said day and year during the said Parliament without License of the said King and Queen and the Court aforesaid did contemtuously depart in Contempt of the said King and Queen and their Commandment and inhibition and to the great detriment of the Common-Weal and State of this Kingdom c. All these things he pleads which your Lordship knows to be a very ill traverse and yet this Case continued all the time of that Queen and the Court would never give judgement in it This was in primo secundo and yet it appearing upon the face of the Information that it was a Case that concerned the Commons the Court would not give judgement for or against the Commons as long as the King and Queen lived There is a later Case and that is Elliots Case 5 Car. there is an Information against My Lord Hollis Sir John Elliot and many more and there is a Plea put in to the Jurisdiction of the Court I have a Copy of My Lord Hollis's Plea and 't is in a manner as faulty as Plowdens Plea but the Court in that Case does go not upon the insufficiency of the Plea but gives judgement generally that this Court had a Jurisdiction the assault happen'd in Parliament and the words were spoken there and upon the Demurrer they gave judgment upon the whole matter what became of that judgement We know very well it was reversed 19 of this King And pray observe the proceedings in the reversal of that judgment Judgment wâ—s given against My Lord Hollis and the rest of the Gentlemen of the House of Commons though there was no prospect of a Parliament yet they were obstinate and would not plead for they thought the judgment to be a very hard judgment and this being a Plea in abatement judgment was given for want of a Plea over It may fall out in this Case that this person may be obstinate and not plead over if you should give your judgment against this Plea In Elliots Case they were fined severly and they continued under this judgment in Prison and in execution for the Fine a great while and they were delivered by what I cannot indeed justifie in all its proceedings I mean the long Parliament but what was done in 19 of this King I think is good authority which none can say but was a Parliament as useful to the King and Kingdom as ever could be In that Parliament the Commons examined this judgment I speak because I have it in my printed Book t
general Act of Parliament but if he will plead a particular Act he must set forth the Matter of it to bring his Case under the Judgment of the Court And whether this be so pleaded or no we submit it to you L. Ch. J. Pray let me speak two or three Words to you Do you speak it against our receiving of the Plea Mr. Attor Gen. Yes my Lord We hope you will not admit such a Plea L. Ch. J. That will be hard Pray then consider with your self whether if it be an insufficient Plea for we 'll say nothing at present to that and if the Plea be such that no Issue can be taken upon it admitting it were so whether you should not demur to it before you demand our Judgment that we may have somewhat upon the whole before us to judg upon And I speak it to you Mr. Attorney to this purpose that you may consider whether you shall think fit to demur to this Plea or whether you shall think convenient to take Issue upon it or to Reply to it That it may come judicially for our Opinion for in a regular way if a Plea be admitted it must be either demurred to or replyed to Pray consider of it in this Case and we will give you time to consider if you please Mr. Serj. Maynard Under favour My Lord If a Plea be apparently vitious when it is upon Record we need not demur to it nor take Issue for else the mischief will be we shall admit all that is well pleaded to be true Mr. Serj. Jefferies My Lord If your Lordship please I do confess that according to the usual Course and Practice if there be a doubt upon a Plea that is read whereon any Point in Law may arise you do put the Party to demur or take Issue but according to the common Course of this Court in common Cases and much more in extraordinary Cases and especially in Capital Cases and most of all in a Case of High Treason such as this if it do appear to the Court and your Lordship That the Plea is in its Nature a frivolous Plea you do usually refuse to admit such a Plea and give Judgment upon it Now we would acquaint your Lordship with our Apprehensions in this Case and we would pray you to consider what the danger may be upon us to demur if this Plea be frivolous as it appears to be For whether an Indictment in this Court or an Indictment in another Court be for one and the same Offence and so a Bar to the Jurisdiction we are not so much as admitted into the Question of that as this Plea is Whereas according to the Course in other Pleas we pray you would be pleased to see the inconvenience if we should be put to demur to it for then we do admit by this Demurrer that this Impeachment is for one and the same thing and we humbly conceive my Lord that is a little dangerous How then will it be possible for you ever to judg That the Impeachment which in Fact is otherwise and the Indictment is for the same thing unless you will put them to pursue the common Methods how it was in the House of Lords by shewing forth the Record and what can we do otherwise it being apparently against the common Form of Pleas and manifestly for delay only then Pray the Judgment of the Court which we hope will be to reject this Plea Lord Chief Justice Brother Jefferies You need not be afraid that you shall be concluded by this Demurrer that there is such an Impeachment in the Lords House for the same Offence There will be no colour for it And Brother Maynard Formerly I confess when they pleaded Pleas Ore tenus and took their Exceptions Ore tenus too they would demand Judgment of a Plea presently and so it was in the Bishop of Winchester's Case 3 Edw. 3. where there was an Indictment against the Bishop here in this Court for going away from the Parliament at Shrewsbury without the leave of the Lords There Shard comes in and Pleads Ore tenus this Matter and says This is a thing that concerns the Lords in Parliament of which they have Cognizance only and so prays the Judgment of the Court presently Whether they have Jurisdiction of the Cause or no and he pleads it in abatement There they over-ruled him presently without any more to do because their Pleadings were not as now they are now they are grown into a formal Way all entred upon Record or at least written in Paper and what should be the Reason why you should not do according to the common course of the Court I leave it to you to consider of it Mr. Serj. Maynard It is very true my Lord antiently the Course was so my Lord and the Law was so too to plead Ore tenus but pleading in Paper is the same thing and the Course of the Court hath been when they saw it in Paper to be a frivolous Plea to give Judgment presently and you have the same Priviledg upon this account as they had when Pleas were by Word of Mouth If there be a Demurrer it may hang longer than is convenient this Cause should do Lord Ch. Just Do not speak of that Brother Maynard as to delay you shall take as short a day as you will Mr. Attor General I have looked upon all the Precedents and could never meet with one Demurrer where the Plea was to the Jurisdiction but I pray your Judgment upon the first Matter Whether whosoever pleads to the Jurisdiction ought not to have the Record in poigne to justify his Plea In a Plea in Bar indeed it may come in by Mittimus but in a Plea in Abatement the Party ought always to be ready with those Matters that are to out the Court of their Jurisdiction and besides the Court is to maintain their own Jurisdiction the King's Counsel have nothing to do to assert that but they ought to avoid all things that may be to the Kings Prejudice and therefore it ought to be by the Judgment of the Court in this Case set aside But I do think you will never find a Demurrer that was to a Plea to the Jurisdiction L. Ch. J. Pray consider of that Mr. Attor Gen. But if it appear to be a frivolous Plea in the Form or in the Matter you will not put us sure to Demur L. Ch. J. If you do insist upon it that you won't demur nor do nothing we will give Judgment but we will take time to consider it if you won't Demur nor take Issue or Reply Sir Fra. Withins Will your Lordship please to spare me one Word As it hath been observed to your Lordship This is a Plea to the Jurisdiction of the Court and if they do plead a Plea of that Nature the Court always expects the Plea should be substantially good otherwise it is not to be received now it is not substantially good here For
fond of a Man's Life that hath been Guilty of such a Fact as this For Example sake surely if that be the thing in question we ought to have speedy Justice executed upon a Man that deserves no Mercy Your Lordship was pleased to take notice of another Circumstance in the Case of Plunket He was Indicted he was Arraigned and was to have had his Tryal in Ireland and was to fetch his Witnesses from thence all these things were in that Case He desired time to consider what he should plead but your Lordship finding an Indictment found against him according to the Rules of Justice over-ruled that matter he suggested and made him plead Not Guily before ever you admitted him to debate any thing of that Fact And then it appearing to your Lordship to be in another Kingdom and that it was impossible in regard of the hazards of the Winds and Seas to get over his Witnesses in a little time your Lordship gave him time but you gave him as strait a time as could be consistent with the Rules of Justice and as his Case would bear Now my Lord this being offered in a Case of that expectation which the Case before you seems to have We desire the dispatch of it as much as we can In case the Man be Innocent God forbid but he should be acquitted but if he be Guilty God forbid he should live a Minute L. Ch. J. Surely you don't take the Case Gentlemen to be a Case of so much Difficulty as to deserve long Consideration we did expect truly that you would have been ready to have maitained your Plea Mr. Williams My Lord we do not desire any long time be pleased to give us a day or two or three as you please L. Ch. J. 'T is said 't is in a Case wherein the Life of a Man is concerned 't is true here is the Life a Man of whom till he be found Guilty we ought to have Consideration as we would of any other whatsoever For we have no reason to conclude him Guilty till we hear him and we are to be indifferent till we hear the Evidence therefore notwithstanding the Indictment we ought to weigh his Life as we would another Man's till he be found Guilty We in our selves do not see there is any so great matter of Necessity for time to consider of this Case yet I must tell you since they pray it Mr. Attorney we are inclineable to give them a day or two's time to consider of it and see what they can say to maintain this Plea But then Gentlemen if we do so you must take notice we will call you to plead presently after our Judgment upon the Plea Mr. Williams My Lord we have nothing to do with the Fact of this Case we are only to speak to the Plea Mr. Serj. Maynard Pray how then is your Life in question upon the decision of this Plea L. Ch. J. Brother they do not speak as to this Plea that it hazards his Life but the subjecta materiae upon the decision of it supposing Judgment be against the Plea Therefore Mr. Attorney we do think fit to give him till Friday Morning and he shall be brought hither then again by the Lieutenant of the Tower then we will hear these Gentlemen and if they do not shew us any considerable Matter to maintain the Plea they must expect Judgment presently Mr. Attor Gen. That certainly will be too long a time pray my Lord they ought to have been ready now if they will be pleased to be ready to Morrow Morning I pray it may go off to no further time Mr. Just Jones There is a necessity my Lord I think that it should be so for there is a long Tryal at the Bar here on Friday Mr. Williams That is a very short time indeed Mr. Just Jones You must be ready to Morrow Morning Mr. Williams Unless my Lord you will give us a little more time you had as good give us no time L. Ch. J. It seems the business of the Court is such on Friday Morning you can't be heard Mr. Just Jones Either it must be to Morrow Morning or Saturday and that is Exchequer-Chamber day Mr. Sol. Gen. My Lord I believe they are not in haste L. Ch. J. Mr. Attorney We would give them a reasonable time but yet we would do nothing that might make unnecessary delays in this Case Mr. Attor Gen. I pray my Lord let it be no longer than till to Morrow and that is more than ever was given in such a Case I know it was denyed in my Lord Stafford's Case they would not give the Counsel any time but would make them argue presently L. Ch. J. As to that Mr. Attorney every Case stands upon its own Bottom Mr. Serj. Jefferies My Lord we have your direction for to Morrow Morning Sir Fra. Win. No No my Lord we hope not so L. Ch. J. Look you Gentlemen to accommodate you the Court does think fit thus to do we will be here on Saturday by seven a Clock in the Morning on Friday we can do nothing for there is a long Tryal at Bar that will take up our time But on Saturday we will be here by eight a Clock sitting and expect you to be here by that time and we cannot afford you then long time to argue in because it is an Exchequer Chamber day Mr. Attor Gen. If Judgment be against the Plea they must plead presently then that we may not lose the Term for a Tryal L. Ch. J. You must take notice of that by the Rules of the Court they must do it Mr. Attorney If our Judgment be against them the course of the Court is so we can't rule it one way or another Mr. Serj. Jefferies But then they ought not to pretend they have no notice their Witnesses are out of the way and so hinder the Tryal Mr. Just Jones No No. Mr. Fitz-Harris My Lord I desire I may have these Lords come to me my Lord of Essex my Lord Salisbury my Lord Mayor your Lordship and Sir Robert Clayton to perfect my Discovery I have something to discover to your Lordship and them L. Ch. J. Your Discovery of what do you mean Mr. Fitz Harris Of the Plot and of the Murder of Sir Edmondbury Godfrey L. Ch. J. We did examine you about the Murder of Sir Edmondbury Godfrey Mr. Fitz-Harris Your Lordship went away in haste before I had told all I could say L. Ch. J. We asked you ten times whether you had any more to say and you said No. Mr. Fitz-Harris My Lord I was in Confusion and Consternation I scarce knew what your Lordship said to me L. Ch. J. We were not in haste we asked you often that Question Mr. Fitz-Harris It was haste to me because I was not provided of the Questions you asked me Mr. Just Dolben To some of the Questions we asked you you answered readily and freely but to some we could not get
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 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
with submission insufficient too For though he does aver that the Treason in the Indictment and the Treason for which he was impeached are one and the same and not divers Affirmatively and Negatively yet as this Case is he ought to have said that the Treason for which he is indicted and the Treason mentioned in the Impeachment is one and the same For if he was impeached generally for High-Treason without mention of particulars it is impossible to be reduced to a certainty So 't is an Averment of a Fact not capable to be tried First because with submission to these Gentlemen that have said it the Debates of the House of Commons are not to be given in Evidence and made publick to a Jury nay they are not always possible to be reduced to a certainty as the circumstances may be for they do not always particularly resolve upon what particulars they will accuse before they go up but a general Allegation serves the turn So that such Averment is not triable per Pais because as the Case may be it may not be capable of any certainty from the Debates of the House of Commons Another reason is because by this way of pleading Proceedings may be staid for Treason though subsequent to the Impeachment which no man yet has pretended to say For suppose now a general Impeachment lodg'd and a Treason afterwards committed by the party I think no man will say that the House of Commons when they bring up their special matters cannot make even this subsequent Treason an Article upon that Impeachment neither can it be said that such Averment as this is upon such Plea pleaded to an Indictment here below would be repugnant because there is no time at all laid in the Impeachment as 't is here pleaded nor no time when the Impeachment was brought up so that it cannot appear to the Court whether the Treason in the Indictment be subsequent or not the consequence of which is we must try whether the House of Commons upon this general Impeachment did intend to proceed to try him for a fact committed after the Impeachment carried up My Lord this would be to affirm that a man once impeached in Parliament shall never be tried for any offence it would be like that Privilegium Clericale which they made use of to exempt themselves from punishment for all offences But my Lord we do think upon the whole matter without entring upon the Debate whether a particular Impeachment lodged in the House of Lords does preclude the King from his proceedings We have a good Case upon this Plea for that is not a Question necessary to be resolved though it be not granted by the King neither But the Question is whether this be a formal Plea and whether here be sufficient matter set forth upon a Record to bring that other matter into question and tie up the hands of the Court. Mr. Serj. Jeffreys My Lord there hath been already enough spoken in this Case I shall desire onely to offer one word to that single point viz. the informality of the Plea which I take to be the sole Question in this Case for to argue whether because there was no Bill pass'd or Decree made in the House of Lords though the Articles had been carried up the Impeachment did not fall to the ground by the Dissolution I conceive altogether improper for I think it does not affect the Question though I desire to take notice that Sir Fr. Win. Mr. Williams and Mr. Wallop were all mistaken for there were no such Concessions made by any of the Kings Counsel the other day as they alleadge because we did not think it to be the Question and therefore made no discourses about it But my Lord I desire first to take notice of a Case or two that hath been cited on the other side and then I shall apply my self to that which is the Question before you at this time They cite the Case of the Lords in the Tower as a Judgment for them which seems to be a Judgment against them for by the Lords granting a Certiorari to remove the Judgments into Parliament they seem to be of opinion that notwithstanding they were impeached before the Lords yet there might haue been proceedings below upon those Indictments had not they been removed and there they remain to this day nay further to those Impeachments they have pleaded to Issue which is ready for a Tryal But in the Case at Bar there onely is an Accusation without any further proceedings thereupon And as to the Case of my Lord Shaftsbury that makes strongly for us as I conceive Mr. Justice Jones's opinion was taken notice of by Sir Fran. Winnington that they would not meddle by any means with matters depending in Parliament But I must remember he then gave this reason for his opinion because the Parliament was then in being And I must humbly put your Lordship in mind that the whole Court did then declare That if the Parliament had been dissolved they would have said something more to that Case I do not say that they would have given such or such a Judgment but I attended at the Bar at that time and I appeal to the memory of the Court if the Court did not then make such a Declaration But now to the Question Without all peradventure the Cases cited by Mr. Pollexâ—en are true If I bring a general Indebitarus assumpsit for Wares sold and delivered and after bring a particular Indebitatus assumpsit for such and such Wares naming the particulars the party may come and plead in Bar and aver 't is for the same thing and 't is a good Averment because there is sufficient matter set forth in the Record to support such an Averment For the doubt is onely whether the particular Goods mentioned in the second be not the same that were intended under those general words Goods and Merchandizes in the first But suppose there had been onely an account brought and no declaration put in could then the Defendant have pleaded such a Plea with such an Averment when there was not sufficient matter of Record set forth in their pleading whereby the Court might be able to give a Judgment or put it into a way of Tryal whether it was for the same or not And is it not so in this Case there being but a bare Accusation For I still keep to the informality of the pleading and I take it not to be such a dangerous Case as these Gentlemen of the other side do pretend for you to determine it For I am sure it will be better for the Court to answer if ever they shall be required that they have performed their Duty and done Justice according to their Consciences and their Oaths than ever to be afraid of any Threats or Bugâ—â—â—s from the Bar. For would not they by this manner of pleading put upon your Lordships a difficulty to judge without any thing contained in
the Impeachment to guide your Judgment whether the Prisoner be impeached for the same thing for which he is indicted May not the Treason intended in this Impeachment be for Clipping or Coyning of Money for 't is generally said to be onely for High-Treason How comes this then to be help'd so as to be any way issuable and be tryed Shall it be by that way which Mr. Wallop laid down that if Mr. Attorney had taken Issue the Jury must have tryed the Question by having the Debates of the House of Commons given in Evidence Certainly that cannot be my Lord. If there were but one sort of Treason there might be some colour for this sort of pleading but there are divers kinds of Treasons and how is it capable to be tryed who can prove the intentions of the House of Commons before they are come to a Resolution and therefore cannot be given in Evidence or be regularly brought into Judgment Therefore we rely upon the informaliâ—y and uncertainty of the pleading onely and meddle not with the Question whether an Impeachment in the House of Lords supersedes an Indictment in the Kings-bench for we say the have not pleaded it so substantially as to enable the Court to judge upon the Question and therefore we pray your Lordships Judgment that the Plea may be over-ruled Sir Fran. Withins My Lord there has been so much of your time already taken up by those Gentlemen that have argued before me that I shall be very short in what I have to say The Question is not at this time how far forth the Commons in Parliament may impeach or not impeach a Commoner before the Lords in Parliament or where the Lords may admit or not admit of such Impeachments that is not the Case here as I humbly conceive nor will I meddle with it I shall onely speak to the validity of the Plea according to the Law Now I say that this Plea of the Prisoner as thus pleaded cannot be good to out this Court of Jurisdiction For first the Prisoner cannot be admitted to make the Averment in this Plea that the Treason mentioned in the Impeachment in Parliament and that contained in this Indictment is the same for if as the Gentlemen that argued on the other side urg'd that this Court must take notice of the Proceedings and Law of Parliament then you will take notice that no person is there tryed upon a general Impeachment of Treason Special Articles are always first exhibited In this Case then either the House of Commons have carried up special Articles against the Prisoner to the Lords in Parliament or not if the House has done it then the Plea might have been pleaded better by setting forth the Articles which is part of what they say on the other side that it could be pleaded no better for then it would have appeared plainly whether the Treason were the same or not If the Articles are not carried up shall it lie in the mouth of any particular person to say what Articles the Commons in Parliament would have carried up Shall any single person be admitted to say what the House would have done before the House it self says it In Cases of Impeachments it lies in the Discretion and Judgment of the Commons upon Debate to exhibit what Articles they in their Wisdoms shall think fit and sure it shall never come that any particular person shall limit them to this or that particular Treason before-hand no surely Now suppose in such a Case as this after such a Plea pleaded the Commons upon deliberation should carry up Articles quite different such a Plea then would appear to be a stark lye and the pleading and allowing of it an apparent delay of Justice So that I conceive my Lord the Prisoner shall by no means be admitted nor indeed can it be to aver the intention of the House of Commons which cannot be tryed before they have declared it themselves and therefore I conceive the Plea to be naught for that reason But my Lord I conceive that the Prisoners Plea is ill for another reason because the Court in this Case by any thing expressed in this Plea cannot discern nor take notice whether it be the same Treason or not Now the reason why the Record as this Case is ought to be alleadged specially is because the matter contained in it may plainly appear to the Court and then by that means the Court might judge whether it be the same Treason or not Now Treason generally alleadged in the Impeachment is the Genus and the particular Treason mentioned in the Indictment is onely a Species and the Averment in the Plea is that the Genus and the Species is the same which is absurd and if allowed tends to hoodwink and blind the Court instead of making the matter plain for their judgement Pleas ought to be plain and certain because the Court upon them alleadged is to judge either of mens Estates or Lives and for that reason the matter ought to come plainly and fairly before them that wrong may be done to neither party by reason of the obscureness or doubtfulness of the Allegation if therefore a Hoodwink be brought instead of a Plea it ought not to be allowed And therefore for these reasons for what I have farther to say has been already said by others I conceive it ought to be overruled I humbly submit it to the Court. L. C. J. You have done your Arguments Gentlemen on all sides Coun. Yes my Lord. L. C. J. Look you Gentlemen I 'le tell you you have taken up a great part of our time We never intended when we assigned four Counsel to Mr. Fitz-Harris that they all should make formal Arguments in one day 't is the first time that ever it was done but because 't is as you press it in a Case of Blood we were willing to hear all you could say that you might not afterwards say but that you were fully heard on all sides But in truth I must tell you you have started a great many things that are not in the Case at all We have nothing to do here whether the Commons House at this day can Impeach for Treason any Commoner in the House of Lords we have nothing to do with this what the Lords Jurisdiction is nor with this point whether an Impeachment in the Lords House when the Lords are possessed fully of the Impeachment does barr the bringing any Suit or hinder the proceeding in an Inferior Court But here we have a Case that rises upon the pleadings whether you have brought here before us a sufficient Plea to take away the Jurisdiction of the Court as you have pleaded it that will be the sole point that is before us And you have heard what exceptions have been made to the form and to the matter of your pleading We do ask you again Whether you think you are able to mend your Pleading in any thing for the Court will not catch
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