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
with Impunity but the preference was given to the person more particularly concerned and the Kings Indictment must stay till the year and day were out to see whether they will proceed in their suits And so says My Lord Chief Justice Hales in his Pleas of the Crown 2442 45. Then à minori admajus does the Law so regard the interest of the Wife or the Heir c. in their suit and has it no regard to the suit of all the Commons of England For manifestly an Impeachment is the suit of the people and not the Kings suit That 's the 2. Reason another Reason I shall urge is that which was touched by Mr. Williams Suppose this man should be tryed here and be acquitted Is it to be presumed that he can plead this acquittal in Barr to the Impeachment before the Lords My Lord I believe there is no considering man in England that has regard either to the Jurisdiction of Parliament or to the Nature of the suit will affirm that it would be a good Plea and that he could barr the great Court of the Kingdom from proceeding against him by saying he was acquitted by a Jury in Westminster Hall after the suit was first well commenced in that Court My Lord I say with reverence to the Court that should you proceed in this Tryal it may fall out that contrary to a Fundamental Rule of Law a man shall be twice put in danger of his Life for one offence which by the Law he cannot be and therefore I urge that as a reason why you cannot proceed here on this Indictment My Lord I will now mention two or three Precedents which will prove that this Impeachment is according to the Course and Law of Parliaments though it may seem needless after the Kings Learned Council have agreed it My Lord I shall first mention the Case of Michael de La Poole Rot. Par. 18 or 28 H. 6. n. 18 He was a very great man and came to the House of Lords voluntarily and said there was a Rumour that he was Guilty of horrible things Lord Chief Justice Where did you take this Case out of Cotton it is mentioned there But I have seen a Copy of the Roll. Sir Fran. Win. Yes My Lord There upon the Commons pray he may be committed upon his own confession and that the thing being Debated in the House the Lords said we know not what was meant by those words horrible things it may import only Misdemeanours if it had been said Treason we had known how to have proceeded thereupon And thereupon within a few days after the Commons came and accused him of Treason and there 't is said that the Course of Parliament is to find out the Truth by Circumstances and such degrees as the Nature of the thing will bear and they are not confined to the strict rules of other Courts I will not cite any more ancient Cases though there are many to be found of general Impeachments for we are not disputing what is the right and course of Impeachments which is confessed upon the pleading but we have had several Cases of late the Earl of Clarendon was Impeached generally and the Commons took time to bring in their Articles and I have had the experience in 3 or 4 a Parliaments wherein we have been pretty well busied with Impeachments though we have had no great success in them That though the Commons may if they please carry up particular Articles at first yet the Law and course is for the Lords to receive the general Impeachment and the Commons say that in due time they will bring in their Articles So it was done in the Case of the Popish Lords some particular Member was appointed to go up and Impeach them of High Treason in General and in that Case though the Parliament was Dissolved before any Articles sent up yet afterwards in the next Parliament the Articles upon the former Impeachments were sent up and receiv'd and My Lord â—â—â—fford since executed upon his Conviction upon that Impeachment yet Indictments were exhibited against them before ever any Impeachment was sent up by the Commons and preparations were made for their Tryals But from that day to this there hath been no attempt to Try them upon their Indictments though there have been several Intervals of Parliament Our Case is stronger than that of the Lords for in the Case at the Bar the first suit was in the House of Lords by the Commons whilst in the other Case the first was the suit of the King by Indictment and yet by a subsequent Impeachment that was stop'd and the Lords continue yet Prisoners in the Tower Our time hath been so short that we could not see the Copies of Orders which we might otherwise have made use of for maintaining this Plea we sent to the House of Lords but the Officers were out of Town and we could come at the sight of nothing there we have been told the opinion of the Judges was delivered at Council concerning these very Lords that the Impeachments being lodged in Parliament no other prosecution could be against them till the prosecution of the Commons was determined So far the Courts below have always been from meddling with the Jurisdiction of Parliament that even many times in Questions upon Acts of Parliament they have gone up to the Parliament to know what was meant by it And I remember it was said by the Court in that Case of My Lord of Shaftsbury where it was agreed by all that the Commitment was too general for it was only for a Contempt whereas the Crime ought particularly to appear in the Warrant that it being in a Case of Commitment by the Parliament at least while that Parliament was continuing they ought not to meddle with it nor could they inquire into the formality of the Warrant My Lord I must mention one thing touching the Case of My Lord Hollis which was cited by Mr. Williams and I have but a word to add It is in the Appendit to the first part of Rushworth's Col. and also in Croke Car. fol. 181. It was there pleaded to the Jurisdiction of this Court that it was a matter done in Parliament In our Case his pleaded that an Impeachment is depending in Parliament that was but a prosecution for a Misdemeanor this is a Case of High Treason it fell out in that Case the Court here did adjudge that the Information did lye but upon a Writ of Error it was agreed by the Lords unanimously that the judgement was Erroneous and that the Parties should be restored to all which they had lost by reason of it but if this man should lose his Life by your judgment what help would there be upon a Writ of Error The danger of such a thing requires great consideration and it would be of fatal consequence if the Lords should hereafter adjudge that this Court had no Jurisdiction As for Mr. Attorneys objection to day
Commissioners they must have but a select number of Peers to be their Tryers But in none of those Cases hath any Judicial Opinion been given for the Case of 11 R. 2. first cited by Sir Fran. Winnington and then by Mr. Pollexfen a Declaration in Parliament That they proceeded according to the Law of Parliament and not according to the Common-Law nor according to the practice of Inferiour Courts that will be nothing to our purpose at all that was in case of the Lords Appellants a proceeding contrary to Magna Charta contrary to the Statute of Edw. 3. and the known Priviledge of the Subject But those proceedings had a countenance in Parliament for there was an Oath taken by all the Lords in Parliament That they would stand by the Lords Appellants And thereupon they would be controuled by none and they would not be advised by the Judges but proceed to the trying of Peers and Commoners according to their own will and pleasure And between that time of 11 R. 2. and 1 H. 4. see what havock they made by those illegal proceedings and in 1 H. 4. you will see that these very Lords were sentenced except one or two of them who were pardoned and then it was expresly resolved by Act of Parliament That no more Appeals of that nature nor any Appeals whatsoever should be any more in Parliament And if so these Gentlemen had best consider how they make an Impeachment like an Appeal for in that Statute 't is said There shall be no more Appeals And the Petition upon which this Act is founded runs thus They pray that no Impeachment or Appeal may be in Parliament But when the King came to make the Grant he grants onely for Appeals and principally to out those Lords Appellants who were condemned by that very Parliament So that 't is a very pretty matter at this time of day to liken an Impeachment to an Appeal But my Lord the other great point is this There is nothing at all certainly disclosed to you by this Plea therefore there is nothing confessed by us onely the Fact that is well pleaded therefore I shall come to consider what is said by them as to the form of it They say my Lord that they have pleaded it to be secundum legem Consuetudinem Parliamenti and if that be sufficient let them have said what they would that would have healed all But I say my Lord with submission they must disclose to you what is the Law and Custom of Parliament in such case or else you must take it upon you upon your own knowledge or you cannot give Judgment 'T is very well known what this Lex Consuetudo Parliamenti is no person versed in the Records but knows it that by course of Parliament a Message goes up with a Declaration to impeach the party generally and then after there are Articles or a Bill of Impeachment produced Now till that be produced sure there is no Counsel of the other side will say that ever the party can be called to answer And because these Gentlemen do pretend to urge their knowledge herein I would observe there are three things to be considered of the Parliament the Legislative part the matters of Priviledge and the Judicial part proper to this Case For the Legislative part and matters of Priviledge both Houses do proceed onely secundum legem Consuetudinem Parliamenti but for the Judicial part does any man question but that in all times they have been guided and directed by the Statutes and Laws of the Land and have been outed of a Jurisdiction in several Cases as by the Statute of 4 Edw. 3. and 1 H. 4. And the Lords in all Writs of Errour and all matters of Judgment proceed secundum legem Terrae and so for Life and Death And there is not one Law in Westminster-hall as to matters of Judgment and another in the Court of the Lords above But I will not trouble your Lordship any farther to pursue these things But it is not sufficiently disclosed to you that there is any such thing as an Impeachment depending there 't is onely alleadged that he was impeached and so much the News-book told us that he was impeached but to infer thence that there was an Impeachment carried up and lodged for the same High-Treason is no consequence And then 't is alleadged Quae quidem Impetitio when no Impeachment is before set forth but onely that he was impeached generally And as I observed before a person might go up with a Message to impeach but that cannot be said to be an Impeachment to which the party is compelled to answer it must be an Impeachment on Record and appearing on the face of the Record for what Crime it is and so they ought to have set it forth Now that this is too general that is alleadged here I take it the Books are very full When a Record is pleaded in Bar or in Abatement the Crimes ought to be set out to appear the same and so my Lord are all the Presidents of Coke's Entries 53. Holdcroft and Burgh's Case and Watts and Brays Case in 41 and 42 of Q. Eliz. Coke's Ent. 59. Wrott and Wigg's Case 4 Rep. 45. and in Lewes and Scholastica's Case and Dives and Manning's Case The Record must be set out that the Court may judge upon it and the Record must not be tryed per Pais but by it self But for what they say plead it never so certainly there must be an Averment it must be so 't is true but that is for another purpose than they urge it The reason is because if it be for another Fact that he hath committed he may be indicted again though it be of the same nature but whether of the same nature or not of the same nature is the thing must appear upon the Record pleaded because the Court must be ascertained that it was sufficient for the party to answer to it for if it were insufficient he may be again proceeded against as if an Indictment be pleaded which was insufficient though the party pleads an Acquittal or Conviction upon it it will not avail him for the Court will proceed on the other Indictment And so is the Resolution in Vaulx's Case and in Wigg's Case though there was a Judgment given of Acquittal yet he was tryed again So that my Lord that is one great reason why it must appear that the Court may judge whether it be sufficient for the party to answer And you have now that here before you if this be such an Impeachment as they have pleaded it as this person could not answer to by any Law of Parliament or other Court then 't is not sufficient to out you of your Jurisdiction And I do think that by no Law they are or can be compellable to answer to a general Impeachment of High-Treason And to give you authority in that there are many might be cited as the Cases of my Lord
indicted and hast been arraigned or not guilty Mr. Fitzharris I have made a Plea my Lord which I desire may be received and allowed Mr. Wallop May it please your Lordship I desire to be heard a few words L. C. J. Would you not have the Plea read Mr. Wallop I have but a few words to say before it be read if your Lordship please for our selves or at least for my self According to the best Instructions we have had we have drawn up this Plea and I pray it may be entred so But my Lord I humbly conceive we have not had or for my own part I have not had those Instructions that were fit to direct me in this Case It is a special Plea and of a matter that rarely happens and the nature of this special Plea is that the matter contained in the Indictment and in the Impeachment is one and the same matter Now I have not yet seen nor could I come at a sight though I desired it of the Impeachment nor of the Indictment But I humbly conceive that by the Law as this Case is upon a special Plea the Prisoner ought to have a Copy of the Indictment And I do not say that every one may demand a Copy of his Indictment to find faults but upon a special Plea and particularly upon this I humbly conceive he ought to have a sight and a Copy of his Indictment L. C. J. What would you not have your Plea received Mr. Wallop Thus my Lord if we can have no further Instructions nor can by any other means come to a sight of these things then it is the best Plea we can make in such a Case and I avow the Plea but if any thing should fall out amiss to the Prisoner for want of such a sight I pray it may not lie upon me L. C. J. Read the Plea Cl. of Crown Et predictus Edwardus Fitzharris in propria persona sua ven dic quod ipse ad Indictament predict respondere compelli non debet quia dic quod ante Indictament pred per Jur. pred in forma pred compert scil ad Parl. Dom. Reg. nunc inchoat tent apud Oxon. in Com. Oxon. vicesimo primo die Martii anno Regni dict Dom. Reg. nunc tricesimo tertio ipse idem Edw. Fitzharris per Milites Cives Burgenses in eodem Parl. assemblat nomine ipsor omnium Com. Angliae secundum legem cons Parl. de alta proditione coram Magnat Procerib hujus Regni Angl. in eodem Parl. assemblat impetit fuit quae quidem impetitio in plenis suis robore effect adhuc remanet existit prout per Record inde inter Recorda Parliamenti remanens plenius liquet apparet Et pred Edw. Fitzharris ulterius dic quod alta Proditio in Indictamento pred per Jur. pred in forma pred compert specificat mentionat alta Proditio unde ipse predict Edw. Fitzharris in Parl. pred modo ut prefert impetit fuit existit sunt una eadem alta Proditio non alia neque diversa quod ipse pred Edw. Fitzharris in Indictamento pred nominat pred Edw. Fitzharris in Impetitione pred nominat est una eadem persona non alia neque diversa hoc parat est verificare c. Vnde ipse pred Edw. Fitzharris petit Judicium si Cur. Dom. Reg. hic super Indicamentum pred versus ipsum ulterius procedere vult c. Mr. Williams My Lord we humbly pray being assigned of Counsel for this Gentleman Mr. Fitzharris that this plea may be received L. C. J. Mr. Attorney have you been attended according to the rule of Court with this Plea Mr. Att. Gen. No my Lord. L. C. J. What is the reason of that Mr. Att. Gen. Here is no more in effect than what was offered four days ago when Counsel was allowed him I sent last night late to them for a Copy of the Plea Indeed yesterday at noon they sent me this Note That Fitzharris intends to stand upon his Plea that he stands impeached in the House of Peers I sent to know of them whether they would plead this to the Jurisdiction or in Abatement or in Bar They declared they would not plead to the Jurisdiction but now I see 't is to the Jurisdiction L. C. J. It is so and that he proposed to plead at first Mr. Att. Gen. It is true too my Lord But thus they sent me word L. C. J. And as a Plea to the Jurisdiction so it concludes Mr. Williams My Lord we have done all that is possible for us to do in this Case The Court directed us to attend Mr. Attorney with the substance and so we have done but the form we had liberty to do as we pleased in L. C. J. You need not go about to excuse it that you have not done it we charge you with nothing Mr. Williams I don't go about to excuse it we don't take it as a Charge upon us L. C. J. All we say is this If Mr. Attorney had had it peradventure he might have considered of a Replication by this time or what he would do concerning it but if he hath not had time we cannot expect it from him Sir Fr. Win. My Lord I onely beg one word as to matter of Fact and 't is material as to our selves to urge it We did sent several Messengers to get if it were possible to be obtained a Copy of the Impeachment in Parliament We sent to the House of Lords Clerk to get it but they that went down tell us the Clerk is not in Town or else we had sent Mr. Attorney the whole Plea at that time L. C. J. I onely ask the Question to see whether Mr. Attorney hath had time to think of it Mr. Att. Gen. My Lord I think I need not any time in this Case L. C. J. Pray go on Sir Mr. Att. Gen. My Lord I do pray your Judgment upon it for 't is a Plea that is insufficient nay 't is no Plea to bar you of your Jurisdiction First I observe that whosoever will plead a Plea to the Jurisdiction if he have any Record to plead must have it in poigne must produce it in the Court or at least must produce a Copy sworn that the Court may see there is nothing dilatory in the Case And for this matter it will appear upon Examination to be a plain frivolous Plea for there is no such matter depending as this Plea alleadges But I speak of it as a Plea to the Jurisdiction of the Court and such an one as will plead such a Plea he must have the Record ready to shew it to the Court and by the Course of Law ought to have it ready to assert to the Court that they have not Jurisdiction So then 't is certainly nought That is the first thing Another thing is this with submission I say They
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
another Kingdom and it is by Law he is so Indicted indeed but he being kept close Prisoner and not knowing what time he should be brought to a Tryal he desires time to send for his Witnesses who are to be brought over to clear him of the Treason Could we in Justice deny it him or could there be a shorter time than next Term given him when his Witnesses are in another Kingdom and it would be a fortnight or three Weeks before possibly he could have his Witnesses here This I mention because you will needs make use of such a Case that is no more like yours than any thing that is the farthest different from it yet you will have the Case to measure with your Case Mr. Williams My Lord I know it is in the Discretion of the Court and as your Lordship did what was just for Plunket to you will to this Person I know you will do what is right to every Body We are Counsel assigned by your Lordship and we doubt not but your Lordship will be just to us and give us a reasonable time to argue it L. Ch. J. Look you by the way Mr. Williams I must tell you when we assigned Counsel to Mr. Fitz Harris we expected that Counsel should consider the Plea so as to be able to maintain it when they come to plead it here for that reason we gave him time to plead it so as he would stand by it What needed we else to have assigned him so much Counsel in such a Case as this is but that he should be ready and why you should now hope that we will give you a longer time for Argument in such a Case I see not Consider whether in Discretion you think longer time ought to be expected upon such a Plea as this is Sir Fra. Win. My Lord we will not take upon us to prescribe nor to mention any time in particular we leave that to the Discretion and Judgment of the Court but this I think we may pray according to the Duty we owe to our Client upon your Lordship's assigning us of Counsel We could not foresee till to day what the King's Counsel would do whether Mr. Attorney would take Issue upon us of null tiel Record or upon any of our Averments We could not foresee whether he would demur to us or not I know your Lordship will be as favourable to us as you can not having those Papers or sight of those Records that were necessary and would have expedited this Matter our time was all spent in forming of the Plea and we could not prepare particular Matter in Law to defend it We are as ready as can be expected and we have been as industrious to prevent any delay as any Persons could be in our Condition Therefore it may be we have had a general Consideration of the Plea but now we see where the doubts do lye upon it 'T is a Matter of Law pleaded to the Jurisdiction of the Court I do not indeed love to cite Precedents upon what is plain but withal I do not love to say things upon a sudden are plain without Consideration But this I will say as 't is now upon this Demurrer joyned it is a Case well worth our taking care of and yours too I must say it with your Lordships leave Therefore if in the Case of my Lord Hollis which was but upon an Information and that but for a Misdemeanour and tho it was a Plea directly to the Jurisdiction of the Court and certainly they came prepared for they were all at Liberty and had resort to all Papers and Books before the Plea pleaded which we could not have yet the Court was pleased to assign them time and give them a large time I hope we shall have some reasonable time I do not speak it that we should have so long time but I humbly beseech your Lordship that we may do our Duty to the Court and to our Client that we may have a little time It is true it is a great and a horrid Treason but it is as true here is the Life of a Man concerned in it we do not affect delay at all but hope you will not deny us what time is reasonable L. Ch. J. Look you I 'le tell you you might if you had pleased have entituled your selves better to have had time to speak to the Plea if you had pleaded over to the Treason then we could have given you time to have spoken to it and not delayed the King at all but you have thought fit not to plead over I must confess I did expect you would have pleaded over as you might have done and I thought you would Therefore having not done it it is in our Consideration whether we will give you time and what time we will give you Mr. Wallop It is under your Lordships Favour according to the usual course of modern Practice I have been an unprofitable Attendant here near forty years and for my part I did never yet see so swift a Proceeding as this is now it is as swift as Lightning It is a very extraordinary thing we might well conceive that nothing more should be expected from us than what is usual and that we should not be put out of the ordinary Proceedings antiently indeed as your Lordship did observe the other day they pleaded Ore tenus and then the Proceedings were very quick now indeed it is otherwise modern and what we may call antient Practice too hath made an Alteration from that Method And we humbly pray we may not proceed but according to the rate of modern Practice My Lord whereas they are pleased to call it a frivolous Plea I believe it is a Plea of the greatest Import that ever these Gentlemen came here about whatsoever they are pleased to say But your Lordship knows the Life of a Man is the greatest Favourite in Law and that to be a most antient and wise Rule de morte hominis nulla est cunctatio longa And since we could not reasonably expect to be thought to come provided in this Case we humbly pray that your Lordship will allot us such a reasonable time as your Lordship shall think fit L. Ch. J. Come let me propose this to you will you plead over Mr. Pollexfen My Lord I will give you an Answer to that we cannot do it When we were together we did consider whether if we should plead over it would not destroy the Plea and we were of Opinion that it would destroy the Plea we cannot plead over but we give up the Jurisdiction It is as indifferent and light to me as any Body to be forced to argue it now but as to the Matter of it I believe no Body can say they ever saw many Instances of the like Nature Therefore pray my Lord let us not go on so hastily with it for we could not foresee what since we know how it would be with us I did not think
they would have demurred but now 't is come to that we must make the best of it We have pleaded this Plea if you will not be pleased to give us leave and time to be prepared to argue it you must take it as we are able since we can't have time to make our selves able L. Ch. J. Certainly Mr. Pollexfen in favorem Vitae it would not hurt the Plea to plead over Mr. Attor Gen. My Lord If your Lordship please to favour me a Word in this Case I hear several things urged particularly instancing in modern Practice If that Gentlemen will shew that in any Case the King and the Court were so Indulgent to give four days to plead to the Jurisdiction of the Court then he will shew me some thing of modern Practice which I know not but if that Gentlemen will remember modern Practice in a great Nobleman's Case for whom he was of Counsel it was told him If he would debate the Point of Law he must do it presently They never would give him time to prepare for his Argument there was no such modern Practice then I would desire him to give me one Instance that when Gentlemen are assigned of Counsel to plead a Matter to the Jurisdiction and deal so with the King's Counsel as they have dealt with us not to let us see the Plea till now the modern Practice hath been to give them any time For them to say that they could not foresee what we would be at Could they not foresee the Points of Law Could they not foresee a plain Case But they do not take off the great Matter that he that doth plead to the Jurisdiction ought to have the Record ready in his Hand but my Lord we lay our Thumb upon that which is our Exception they have pleaded no Impeachment of any Crime that can appear to be the same with that for which they are indicted that is the Point Is there such difficulty did not these learned Gentlemen think Could they not foresee that we should look into their Plea that it should be legal therefore I did and do pray your Judgment If they had pleaded and set forth the Record truly as it is and as it ought to be set forth in case they would have any benefit by it we would have given them another Answer but if it be done purposely as it is done with Artifice I am bold to say for these Gentlemen know how to plead a Record as it ought to be and how this ought to be pleaded to â—o out the Court of a Jurisdiction of a particular Crime they say the Life of a Man is concerned and so is the Peace of the Kingdom concerned too in the Life of as great a Traitor as ever was tried in Westminster Hall For if his Treason had taken effect certainly the Kingdom had been very near embroyled in civil Wars by this time Therefore the whole Peace of the Kingdom depends upon his Life and it depends upon the clearing of the whole Matter And I challenge them again if they can shew me any Instance of the like Nature That of Elliot's Case that was mentioned it was an Information and to Pleas upon Informations there have been Demurrers but to Indictments found by twelve Men we do not meet with any Demurrer any where to a Plea to the Jurisdiction But I pray your Judgment that he may plead in Chief for 't is but a Respondes ouster and if these Gentlemen desire to take time I hope you will not delay the King by giving Countenance to such a plain imperfect Plea and for those high Matters they talk of that will be the Consequence they can never come in question upon this Plea Mr. Sol. Gen. My Lord I have but one short word to that which is now in question Our Exceptions to the Plea we offered and opened before the Question is now whether they shall have time to argue this Plea And the Arguments they use for longer time is the Life of a Man and they could not be prepared on a sudden because they knew not what we would do For the hasty proceedings that have been in this Case which they clamor of I think they have little reason to speak so since that hath been done in this Case that never was done in any other He hath had three days time to consider whether he will plead to the Jurisdiction of the Court which never was done to any and so great a Favour that he is scarce entituled to any farther Favour Does any Man believe that they are not prepared Do not Gentlemen when they consider of a Plea consider upon what Grounds they Plead And does not that let them into the whole Matter where the weak parts of the Plea are and what may be objected against it I am sure that these Gentlemen are of that Consideration that no Man does believe they would put in this or any Plea without having considered before-hand what to do And then when they have put in a Plea upon great Consideration no Man is to think that they are unready to maintain it Our Exception is short and they do but talk in general Terms that they are unprepared and they have no reason to expect this Kindness from the Court especially since they used Mr. Attorney at this rate they gave him not the Plea but only a Note to tell him they would do that which they said four days before and no more if they had done regularly they should have brought Mr. Attorney the Plea and left a Copy with him and desired him to consider of it But we do not pretend we are surprized for all this Usage we see the Plea here and we see the Faults of it and we have demurred to it and tell them our Exception sure they are better prepared than 't is possible for the King to be yet we are ready and we hope you will grant them no longer time Mr. Serj. Jefferies Will your Lordship be pleased to spare me one Word I wonder at what Mr. Wallop seems now to urge concerning the Life of a Man that is concerned in this Case 't is true the Life of a Man is concerned which is a dear thing to the Law but certainly the Life of the Government is more dear to the Government and all Courts of Justice than the Life of any one single Person And I am sure this one Person hath done as much as in him lies to strike at the Life of the Government in case this be true that is laid to his Charge Now to make this Case like to Plunket's the other day is strange I think your Lordship hath given an account of that For hath he pleaded to the Fact Not Guilty as Plunket did We that are of the King's Counsel would in common Charity hope that he is not Guilty but I am sure if he be Guilty no English Man can think that he deserves to live why then should we be so
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
it and it is not fit for me to dwell upon it You will consider of it I am sure Another thing I would say is this if your Lordship should meddle with this way of proceeding it will invert the Law in another thing for 't is a principle with us That no mans life is to be put twice in danger for one and the same thing I will then put the Case thus If your Lordship should proceed upon this Indictment and this person should be acquitted upon it I am in your Lordships judgement whether that acquittal will bind the Lords in Parliament if that will not bind them but they may still proceed on the Impeachment then you invade that common right which every English-man by the Law ought to have preserved to him that no person ought twice to be brought in question for one and the same thing And so My Lord you make a man to run the risque of his life twice by Indicting him in this Court where though he be acquitted he may be called to an account again if the Law be so And if the Lords in Parliament should be of opinion for they are the Judges of that Case that the acquittal will not be binding to them then a mans life is brought in question twice upon the same account My Lord I now come to this the Time how unseasonable a thing it is and how dangerous to the Government I take it to be a critical thing now at this time to make such attempts as these are There are Lords now that lye under Impeachments of Treason the highest Treason I think that ever was contrived and upon this Impeachment one Lord hath been convicted and executed Suppose upon the dissolution of that Parliament that impeached the late Lord Stafford there had been an Indictment against him for one and the same Treason and by the same reason that this Court may proceed his Majesty may appoint a High Steward to try by a Jury of Peers For the Court held before the High Steward is as much a Court as any Court of the Kingdome except that of Parliament I say suppose the King had appointed an High Steward and that Lord High Steward had proceeded against my Lord Stafford I think my Lord Stafford had been alive at this day For in the case of Treason your Lordship knows there must be two Witnesses and I am sure there came in fresh Testimony against my L. Stafford after the second Parliament after the Impeachment I appeal to those Noble Lords that are here if it were not so and had it not been for that fresh Testimony that came in afterwards possibly my Lord Stafford might have been alive at this time And the Lords in Parliament as I observed in the beginning when they find an high crime before them when they find such a general contagious design to subvert the Government and yet they cannot come to cut off the principal agents in this design because perhaps there may not be two Witnesses in strictness of the Law at the first 't is the wisdome of a Parliament to deliberate and to take time The good Queen who was used to say Truth was the daughter of Time and Time would produce Truth Veritas filia temporis If then there had been any any such hasty proceedings as in this Case I doubt my Lord Stafford had been now alive Now then for these Lords that are now in the Tower if your Lordships do go on in this way do you not open such a gap as may be a ground to deliver them by the same Justice I speak it under correction here and I only offer it to your judgement for I have not had many hours to consider of it but your Lordship will think well of it before you give any Judgement by the same Justice the other Lords may be tryed by another Court This I offer in point of reason that this proceeding will be very hard and is an imprudent thing if not an illegal proceeding My Lord I am sure it will have this effect it will stir up a question between the jurisdiction of this Court and the Court of Parliament For in all probability if this person should be acquitted the Commons and the Lords too will look into it They are a Court that make a survey of the proceedings of all other Courts and they will examine this proceeding or at least may do And if he be found Guilty here is the power of the Commons in Impeaching and the Jurisdiction of the Lords in Tryal and Judgement taken away by an Inferiour Court to them and so stir a question between this Court and that highest of Courts the Parliament And what will be the consequence of that the judgement of that question will be in the Superiour Court for there is no middle Court between this Court and the Parliament to judge of it Therefore I submit it to your Lordships These are the things which I offer to your Lordship in point of reason whereof some go to the prudence of the thing some to the reason and some to the ill consequences that may happen upon it and I think many to the illegality of the act And now this being said in the general I come to the particular exceptions made by Mr. Attorney as to the form of our Plea He was pleased to say That this Plea was a plain frivolous Plea which is his exception in general and he gave you three reasons for it at first and does now insist upon the same for substance One was this and he insisted upon it at this time This Plea does not set forth any Record of an Impeachment nor the particular matter of it so as this Court may judge of the reason of it and he compares it to the Case of a Plea of auter foitz acquit If a man hath been Indicted and acquitted he may plead it in another Court that hath Jurisdiction of the cause if he be again Indicted for the same matter but My Lord first of all I take this Plea to be well pleaded in form and in the second place if there be any informality or defect which I do not take it that there is but if there were any such thing I take it 't is of another consideration which the Court will deliberate before they give their Judgement on But I say in the first place I take it to be a very good Plea and that it is good according to the pleading of auter foitz acquit In pleading of a general Act of Parliament we need not set forth the whole Act but referr to the Record and that will depend upon the Method of Impeachments in Parliament which I am of opinion being the General Law of Parliaments this Court ought to take Cognizance of In the Case of auter foitz acquit there is first an Indictment proceeding of the Court upon the Plea a fair Tryal and a fair acquital and a Record of all this matter If now
of the Lords in the Tower and of the Opinion in February of the Judges in their Case For in the beginning of December were those Lords Indicted and after on the 5 th of Dec. the House of Commons taking it into their Consideration that there was a Commission going out for an High Steward with an intent to bring them to Tryal before the Peers they purposely to have the Carriage and Prosecution of this great and horrid Treason and take off the Prosecution upon the Indictment do Impeach the same Lords and there the Impeachment is just the same as this in our Plea of High Treason but not of any particular Fact adding only of other Crimes and Misdemeanors which is as general as can be Now my Lord the Judges did take so much Notice of it that though the Parliament was Dissolved before the particular Articles were carryed up to set forth the particular Offence Yet in February following some of the Judges are here and they will rectifie me if I be mistaken their Opinions being asked about it at the Council Board upon the Petition of the Lords to be either Bayled or Tryed they were of Opinion that this Impeachment though thus general was so depending in Parliament that they could not be Tryed So that I think the Proceedings in Parliament are of that Nature that if you will meddle with what they do you will take notice of their Method of Proceedings as you do of other Courts Why then my Lord if this be so how is it possible for us to do better We have Pleaded as our Fact is an Impeachment of High Treason What would they have had us to do or wherein is our fault What would they have had us said We were Impeached of any High Treason so and so particularizing how can that be There is no such thing Then they would have said Nul Trel Record And we must have been Condemned for failing in our Record then indeed we had been where they would have had us But having done according to our Fact if that Fact be such as in Law will out this Court of Jurisdiction I see not how it is possible we should Plead otherwise or what Answer they will give to it My Lord I will meddle as little as I can with what hath been said they have mentioned that it is a Case of an high Nature and this Impeachment in Parliament they will look upon it as the Suit of all the people of England why then my Lord this must needs be agreed to me if this Impeachment in Parliament be in the Nature of an Appeal Surely an Appeal does suspend the Proceedings upon any Indictment for that Fact which is the Case expresly in my Lord Dyer fol. 296. Stanley was Indicted of Murder and Convicted after he was Convicted and before any Judgment the Wife of the Party Murdered brought her Appeal then came they and moved for Judgment no said the Court here is an Appeal brought and they could not go to Judgment till that Appeal was determined So the Stat. of 3. H. 7. Ca. 1. and Vaux's Case 4 Report fol. 39. an Appeal of Murder the Party Convicted before Judgment the Petitioner in the Appeal did die Then an Indictment brought and this Conviction Pleaded in Bar of that Indictment and Adjudged to be a good Plea but then there was a fault found in the Appeal upon which the Conviction on the Appeal was void in Law and they went on upon the Indictment This is to shew that if this be of the Nature of an Appeal then ought this Suit first to have its Course and Determination before your Lordship proceed on this Indictment But my Lord whether it be of this Nature or no is a matter we know where under great Controversie and whether your Lordship will interpose in that great Question or whether it comes in Judgment under this Question you will do well to Consider for 't is a matter of Parliament and determinable among themselves not in the Courts below nor have ever Inferiour Courts taken upon them to meddle with the Actions of the Superiour Courts but leave them to proceed according to their Laws and if that be done in any Case there will be as much regard had in this great Cause to the Court of Parliament as in others Besides the Authorities Cited out of my Lord Coke and others I would Cite one more and that is Cotton's Records 5 H. 4. fol. 426. the Earl of Northumberlands Case He comes and Confesses himself to be Guilty of an Offence against his Allegiance the King delivered his Petition to the Justices and would have them to Consider of it No said the Parliament 't is matter of Parliament and the Judges have nothing to do with it The Lords make a Protestation to this purpose and then they went on themselves and Adjudged it to be no Treason There is only that one Record more which has been often Cited and that is Rot. Parliamenti 11 R. 2 pars 1. N. 6. In this Parliament the Lords Spiritual and Temporal Claimed the same Priviledge My Lord I only offer these things with what my Lord Coke says hath been formerly thought prudence in the Judges to do So that I hope that if the matter be good the Form is as good as the matter can be put into and therefore we hope you will allow us the benefit of it Mr. Attorney May it please your Lordship I am of Counsel in this Case for the King and notwithstanding what hath been said I take it with Submission that this Plea is a naughty Plea as a Plea to your Jurisdiction and there is no matter disclosed therein that we can take a good Issue upon The great Substance of the Arguments of these Gentlemen Assigned of Counsel for the Prisoner is against the Prisoner For the great matter of their Arguments was lest this Gentleman should escape which Arguments in several Instances they have used to support the Plea but the Prisoner Pleads this Plea to the purpose that he might escape Therefore if these Gentlemen had taken Instructions from him surely they would have used Arguments to the same purpose that he might escape My Lord they object we have admitted here that there is an Impeachment depending that we have admitted 't is for the same matter and that we have admitted the Parliament to be in being but no Fact is admitted that is not well Pleaded Indeed if that be admitted that the Parliament is still in being then it goes very hard with us and if not so admitted the whole force of Mr. Williams his Argument falls to the ground But I say my Lord with Submission to this matter that the beginning continuance Prorogation Adjournments and Dissolution of Parliaments are of publick Cognizance and the Court ex Officio will take Notice of them so that they need not be Averred And so is the 41. of the Queen the Bishop of Norwich's Case A Private Act of
Stafford and the other Lords in the Tower and so is the ancient course of Parliament with submission I will be bold to say the Impeachments are all so that ever I met with And it appears by them that they all conclude contra Coronam dignitatem Regis in the form of Indictments laying some Overt-Acts and the special particular Crimes for which the person is impeached as Overt-Acts for Treason required by the Statute of 25 Edw. 3. And I hope they will not say That without an Overt-Act laid in the Impeachment the Impeachment can be good If then this be so general that it cannot make the Crime appear to the Court and is so insufficient that the Court cannot give Judgment I take it you will go on upon the Indictment which chargeth him with a particular Crime My Lord Mr. Pollexfen does put the case of Barretry where such Averment is allowable but that is a special certain and particular Crime but High-Treason is â—ot so there are abundance of special sorts of High-Treason there is but one sort of Barretry and there are no sub-divisions therefore there is nothing to be averred but the special facts that make that Barretry Then there was another Authority out of the Book of Assizes cited by Sir Fra. Winnington and greatly relied upon A man is indicted for the murder of J. S. and afterwards for the murder of J. N. the former was pleaded to the second with an Averment that it is the same person that is but according to the common form of Averments to be of matter of fact For if J. S. was known as well by the name of J. N. as of J. S. the Indictment was for the murder of the same person and there 't is pure fact averred But where 't is Essential as this case is that the particular Treason do appear to say that it is the same particular Treason and to say that matter of fact aver'd shall enlarge a Record I think is impossible to be found any where And of all the Cases that I have seen or heard I confess none of the Instances come up to it For the Case in Moor King and Howard cited by Sir Francis Winnington that is an authority as expresly against him that nothing can be more For if there be an Indictment for Felony in such a particular act and then he is indicted again he cannot come and plead a general Indictment of Felony and then aver 't is for the particular Felony and so to make the fact enlarge the Record and put matter of Record to be tried by a Jury Mr. Wallop was of opinion that upon this Averment the Jury may try the Fact What a pretty case would it be that a Jury should judge upon the whole Debates of the House of Commons whether it be the same matter or no for those Debates must be given in evidence if such an issue be tried I did demur with all the care that I could to bring nothing of that in question but your Lorship knows if they have never so much in particular against a man when they come to make good their Impeachment they must ascertain it to a particular Crime and the Overt-acts must be alleadged in the Impeachment or else there is another way to hang a Subject than what is the Kings high-way all over England And admit there was an intimation of a purpose to Impeach a Message sent up and any Judgement given thereupon pray consider what may be the consequence as to the Government a very great matter depends upon this if there be any Record of that Parliament then is the French Act gone for so is the Resolution in 12 Jacobi where the Journal-book was full of proceedings yet because there was no Judgement passed nor no Record of a Judgement in a Writ of Errour they adjudged it no Session but if any Judgement had been given then it had been otherwise So that the consequences of these things are not easily seen when men debate upon touchy matters But that which is before your Lordship is this point upon the pleading and I conceive I have answered all the Presidents they have cited therefore my Lord I do take it with submission there is nothing of that matter before you concerning an Impeachment depending before the Parliament but whatsoever was done 't is so imperfectly pleaded that this Court cannot take any notice of it Mr. Soll. Gen. My Lord I shall endeavour to be short and shall confine my self because I am tender of your time to the point in Question which is whether this Plea be sufficient in point of Form There have been many things said on the other side which I must crave leave to take notice of so far onely as to shew they are not in question before you Those are what relate to the matter of the Plea for they argue 't is good both in matter and form and from the matter of the Plea they have taken occasion to debate whether a Commoner may be impeached Whether this Court hath power to judge of the priviledges and course of Parliament none of which Questions will arise upon our case now Therefore I will not now debate whether Magna Charta which hath ordained that every man shall be tried by his Peers and the Statute of 4 Edw. 3. which says that the Lords shall not be compelled nor shall have power to give Judgement upon a Commoner have sufficiently secured the Liberty of the Subject from Impeachments Nor is it the question before your Lordship whether you shall judge of any matter that is a right or priviledge of Parliament here is nothing before you that was done in Parliament but this is an Indictment for High-Treason committed by Fitz-Harris in this County Now my Lord as that is not the Question neither will it be the Question Whether an Impeachment depending in the House of Lords against a Commoner by the House of Commons will bar this Court of its Jurisdiction For though they have entred upon it and debated it at large and seemed to obviate the Objections made to that if it had been a Question as by saying that the King hath no Election because this is not the suit of the King but the suit of the Subject I will not now ex instituto argue that point but I will humbly offer a few things to your Lordships consideration and I shall take my hints from them They say the House of Commons are the grand Inquest of the Nation to enquire of Treasons and other high Crimes and they make these Presentments to the House of Lords Now when such a Presentment is made 't is worthy consideration whether it be not a Presentment for the King for an Impeachment does not conclude as an Appeal does but contra Ligeantiae suae debitum Coronam Dignitatem Domini Regis so far 't is the Kings suit In an Impeachment the Witnesses for the Prisoner are not sworn the Prisoner hath
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
Parliament was Pleaded and the day of the Parliament mistaken there was a general Demurrer and it was resolved that it was naught and Judgment given against the Bishop though no Exception was taken in particular because the days of the beginning and ending Parliaments are of publick Notice and the Judges take notice when a Parliament is in being and when not That 's a sufficient Answer to that matter Then for those many Cautions that have been given you what a difficult thing it is for two Jurisdictions to interfeir Mr. Fitz Harris is much concerned in that matter who hath forfeited his Life to the Law as a most notorious Offendor that certainly deserves nothing but punishment yet he would fain live a little longer and is much concerned that the Judicature of Parliament should be preserved If it be not Law he shall not be oppressed in it but if it be Law fiat Justitia Certainly no Consideration whatsoever ought to put Courts of Justice out of their steady Course but they ought to proceed according to the Laws of the Land My Lord I observe 't is an unusual Plea and perhaps they had some reason to put it so It concludes si curia procedere vult I wonder they did not put in aut debeat that is the usual form of such Pleas for you have no Will but the Law and if you cannot give Judgment you ought not to be pressed in it but it being according to Law that great Offendors and Malefactors should be brought to Condign punishment we must press it whatsoever the Consequences are And if we did not take it to be the Interest of all the Kingdom and of the Commons too as well as of the King my Lord I should not press it but it is all their Interest that so notorious a Malefactor that hath certainly been Guilty of Treason in the highest Degree and that for the utmost Advancement of the late Popish Plot should not escape or the truth be stifled but brought into Examination in the face of the Sun that all men may see what a Villanous thing hath been Attempted to raise up the whole Kingdom against the King but they say if it be not Law you will not proceed it Ties your hands But with Submission they have not given you one Instance to make good what they say Many things have been that a Plea pending in a Superiour Court is Pleadable to the Jurisdiction of an Inferior Court for my Lord that is it we put upon them to shew if it had been Pleaded in Abatement it would have had its weight and been considered of as in Sparry's Case where it was no Plea to the Jurisdiction Put the Case it had been a good Impeachment and he had been Arraigned upon it and acquitted If he had afterwards come to be Indicted in this Court and the Prisoner will not plead this in Bar but to the Jurisdiction of the Court it would not have been a good Plea But he had lost his Advantage by mispleading If then an Arraignment and an acquittal or Conviction thereupon not a good Plea to the Jurisdiction then certainly an Impeachment depending singly cannot be a good Plea to the Jurisdiction This Court hath a full Jurisdiction of this Case and of this Person both of the Crime and of the party who is a Commoner and not only to find the Indictment but to proceed to Justice and this you had at the time of the fact Committed For certainly we need not put Cases for to prove that the King's Bench especially since the Statute for trying Treason beyond the Seas hath an universal Jurisdiction of all Persons and Offences Pray then what is it that must out this Court of their Jurisdiction For all the Cases that have been or can be put about matters which are not originally examinable in this Court make not to the matter in Question there 't is true the Court may be by Plea outed of its Jurisdiction as at Common Law where a fact is done super altum mare and so Pleaded that puts it out of the Courts Jurisdiction and that was my Lord Hollis and Sir J. Eliots Case and so that was my Lord Shaftsbury's Case too the fact was done out of their Jurisdiction and that may be Pleaded to the Jurisdiction because they had no Original Jurisdiction of the fact but where the Crime and the Person were absolutly within the Jurisdiction of the Court and the Court may Originally take Cognizance of it as this Court had of the present Case I would fain know what can out that Jurisdiction less than an Act of Parliament I will be bold to say the King by his Great-seal cannot do it nor can an Act of either House or both Houses together without the King out the Jurisdiction To say their proceedings ought to be a Bar that is an other Case the party hath his Advantage and may plead it in abatement or Bar as the Case requires for if there had been an Acquittal or Conviction the party could not plead it to the Jurisdiction Therefore for those Cases they put when you come to examine the reason of them you see how they stand viz. that the Court had no Original Jurisdiction My Lord Shaftsbury was committed by the Lords for a Crime in that House a Contempt to that House he is brought here and it appears to be a Commitment in Execution My Lord that was out of your Jurisdiction and if you had bailed him what would you have done would you have bailed him to be tryed here No you could not do it and therefore you proceeded not in that Case And so in the other Cases for there is not one of their Cases that have been cited of the other side but where it was out of the Jurisdiction of the Court originally and not at all within it As for the Case of the five Lords in the Tower because they say it will have a mighty influence upon them and they put the Case That there was in December an Indictment and afterwards an Impeachment from the Commons and they cite some Opinion given at the Council-board which I hope these Gentlemen will not say was a Judicial Opinion or any way affects this Cause But for that my Lord I observe the Lords took care that these Indictments should be all removed into the Lords House so they did foresee that the King might have proceeded upon the Indictments if they had not been removed thither But our Case now is quite another thing for those Lords were not fully within your Jurisdiction You cannot try a Peer of the Realm for Treason and besides the Lords have pleaded in full Parliament where by the Law of Parliament all the Peers are to be their Judges and so you can't out them of that Right And the reason is plain because thereby you must do them an apparent prejudice they having pleaded there all the whole Peerage are their Tryers But upon Tryal before