the Lords in Tryal and Judgment taken away by an Inferiour Court This being said in general I come to the particular Exceptions made by Mr Attorney to the form of the Plea He insists that this Plea doth not set forth any Record of an Impeachment nor the particular matter of it and compares it to the Case of a Plea of Auter foitz acquit If a Man has been Indicted and Acquitted he may plead it in another Court that hath Jurisdiction of the Cause if again Indicted for the same matter I say I take this to be a very good Plea and that according to the pleading of Auter foitz acquit In pleading a General Act of Parliament We need not set forth the whole Act but refer to the Record In the Case of auter foitz acquit there is an Indictment Proceeding of the Cour upon the Plea a Tryal and an Acquittal and a Record of all this matter and if the party be again Indicted he hath a Record to plead which will shew the whole matter and if he does not plead it 't is his own default But in this Case here is no such Record to plead and there is Mr Attorney's mistake you must in this Case be governed by the Rules and Methods of Parliament which is this the Commons Impeach a Man and bring up the Impeachment to the Lords in general and have Liberty to present Articles after due consideration It is said in this Plea that it is secundum legem consuetudinem Parliamenti you are to take notice of the Law of Parliaments and Customs of Parliaments The second Exception is That it is not said in the body of the Plea that Fitz-Harris is Impeached for this Treason but it comes in only in the Averment As to that we must pursue the Impeachment as it is in the Lords Journal 't is for Treason generally there and 't is said to be secundum Legem consuetudinem Parliamenti which goes to all and there is a Record of it among the Records of Parliament and Mr Attorney hath confessed it by the demurrer And this is the same Treason we do aver in fact which also is confessed by the demurrer Mr Attorney hath fancied an exception of Grammar an Adjective for a Substantive but I take it to be as well as any Man can plead in this case The Prisoner says the Commons Impeached him which Impeachment is still in force before the Lords It is as plain as can be if they did Impeach him then there was an Impeachment it can bear no other sence Another Exception and which was strongly urged is That the King may chuse his Court 'T is no doubt the King may chuse his Court for his own Action but the Impeachment is the Suit of the Commons and that is to be tryed in Parliament and no where else I have offered these Reasons as to the form of the Plea to maintain it As to the Precedents There was the Bishop of Winchester's Case 3 Edw. 3. In Coke's 2 Inst fol. 15 the Record is recited de verbo in verbum It was not an Indictment my Lord Coke says it was a Declaration the Record sets forth that the Bishop was attached to answer the King for that whereas it was ordained Per Ipsum Regem Ne Quis ad domum Parliament summonitus ab eodem recederet sine Licentia Regis And that the Bishop in contempt of the King recessit without his leave The Bishop comes and says Si Quis deliquerit ergâ— dominum Regem in Parliamento aliquo ie Parliamento debet corrigi emendari non alibi in minori Curia Quam in Parliamento c. We find no Judgment given upon this Plea nor would they venture to do it My Lord Coke says It looks as if there was a design to weaken the Parliaments by bringing their Proceedings into Westminster-Hall but they would not do it Then there is the Case of Mr Plowden and others 1st and 2d Phi. and Mar. the Information is this That they were summoned to Parliament and departed without leave of the King and Queen the' they had prohibited that any should depart Mr Plowden pleads a Plea a hundred times as faulty as ours if ours be faulty and yet this Case continued all the time of that Queen and it appearing upon the face of the Information that the Case concerned the Commons the Court would not give Judgment for or against the Commons There is also Elliot's Case 5 Car. There was an Information against my Lord Hollis Sr John Elliot and many more They plead to the Jurisdiction of the Court their Pleae is in a manner as faulty as Plowden's but the Court goes not upon the insufficiency of the Plea but gives Judgment generally that this Court had a Jurisdiction The assault happen'd in Parliament the Words were spoken there and upon the demurrer they gave Judgment upon the whose matter This Judgment was reversed 19 Car. 2. The Judgment was given against these Gentlemen of the House of Commons Their Plea was a Plea in Abatement They thought it a very hard Judgment and were obstinate and would not plead over and Judgment was given for want of a Plea they were fined severely and continued in Execution for the Fines were delivered by the Parliament 16 Car. 1. in the second Impression of Croke's Car. it is said That the House of Commons 19 Car. 2. voted That the Judgment was illegal and against the freedom and liberty of Speech and that the Lords concurred in that Vote And upon the Resolution of both Houses the Judgment was reversed by Writ of Error If in our Case you should give Judgment against the Prisoner's Plea and he should prove obstinate and not plead over and you give Judgment of Death upon him It may come to be a very hard Case if your Judgment should be reversed by Writ of Error in Parliament when the party is dead * Sr Francis Winnington in his Argument added to this that it was agreed by the Lords unanimously that the Judgment was erroneous and that the Parties should be restored to all that they had lost but if this Man should lose his Life by your Judgment what help would there be upon a Writ of Error 20 Rich. 2. Ro. Parl. 12. Rushworth 47.48 A Person presented a Petition to the Commons and something suggested therein amounted to Treason He was Indicted out of Parliaement and found guilty But though he was pardoned because the Commons would not lie under that Precedent of an Invasion of their Priviledge tho' he was a Person without Doors and no more hurt done to him but the prosecution the Judgment was voided Mr Williams then concluded his Argument thus My Lord I have done with my Reasons for the matter and for the form Here is the Life of a Man before you here is the right of the Commons to Impeach in Parliament before you Here is the Judicature of the Lords to
Fact is an Impeachment of 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 Treason so and so particularizing how can that be There is no such thing Then they would have us said Nul tiel 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 will oust this Court of Jurisdiction I see not how we should plead otherwise or what answer they will give to it This must needs be agreed to me If this Impeachment be in the nature of an Appeal surely an Appeal does suspend the Proceedings upon an Indictment for that Fact and so 't is expresly in my Lord Dyer fol. 296. Stanley was indicted and convicted of Murder and before Judgment the Wife brought her Appeal and They moved for Judgment No said the Court here is an Appeal brought They could not go to Judgment till the Appeal was determined So the Stat. 3. H. 7. Cap. 1. and Vaux's Case 4 Rep. 39. If this then be of the nature of an Appeal this Suit ought to have its Course and Determination before you proceed on this Indictment Inferiour Courts have never taken upon them to meddle with the Actions of 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 In the Earl of Northumberland's Case Cotton's Records 5 H. 4. fol. 426. He confesses himself guilty of an Offence against his Allegiance the King would have the Justices 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 went on themselves and adjudged it to be no Treason There is that Record more Rot. Parl. 11 R. 2. Pars 1. N. 6. I only offer these things with what my Lord Coke sayes Hath been formerly thought Prudence in the Judges to do So 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 The Attorney General argued thus for the King Notwithstanding what hath been said I take it this is a Naughty Plea and there is no matter disclosed therein that we can take Issue upon The great substance of the Arguments of the Prisoners Counsel is against him for 't is least he should escape but he pleads this Plea that he might escape For the Cautions given you what a difficult thing it is for two Jurisdictions to interfeir Fitz-Harris is much concerned in that matter who hath forfeited his Life to the Law yet he would fain live a little longer and is concerned that the Judicature of Parliament should be preserved I observe 't is an unusual Plea It concludes Si Curia procedere vult I wonder they did not put in aut debeat 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 Malefactors be brought to condign punishment We must press it whatsoever the Consequences are It is the Interest of all the Kingdom as well as of the King that so notorious a Malefactor should not escape or the Truth be stifled but brought into Examination in the face of the Sun but They say if it be not Law you will not proceed it ties up your Hands But they give not one Instance to make good what they say Put the Case it had been a good Impeachment he had been arraigned upon it and acquitted and had afterwards come to be Indicted in this Court and would not plead this in Bar but to the Jurisdiction it would not have been a good Plea 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 and this you had at the time of the Fact committed What then is it that must oust this Court of Jurisdiction For all the Cases that have been put about matters not originally examinable in this Court make not to the matter in question where the Fact is done out of the Jurisdiction of the Court that may be pleaded to the Jurisdiction but where the Court may originally take Cognizance of it I would know what can oust that Jurisdiction less than an Act of Parliament I will be bold to say the King by his Great Seal cannot do it To say the Proceedings in Parliament ought to be a Bar that is another Case the Party may plead it in Abatement or Bar as the Case requires For the Cases they put the Reasons are that the Court had no Original Jurisdiction There is not one of the Cases cited but where it was out out of the Jurisdiction of the Court originally As for the Case of the five Lords in the Tower I observe the House of Lords removed the Indictments into their House fore-seeing that the King might have proceeded upon them if not removed thither But our Case is quite another thing for those Lords were not fully within your Jurisdiction The Case of 11. R. 2. will be nothing to our purpose at all that was in the Case of the Lords Appellants a proceeding contrary to Magna Charta contrary to the Statute of Edw. 3. and the known Priviledges of the Subject Those proceedings had a Countenance in Parliament and they would be controuled by none nor be advised by the Judges but proceed to the trying of Peers and Commoners according to their own Will and Pleasure And between the time of 11 R. 2. and 1 H. 4. see what Havock they made by those illegal proceedings and in 1 H. 4. these very Lords were sentenced and it was resolved by Act of Parliament That no more Appeals should be any more in Parliament 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 only the Fact that is well pleaded They say They have pleaded it to be secundum Legem Consuetudinem Parliamenti but I say They must disclose to you what is the Law and Custom of Parliament in such Case or you must take it upon you upon your own knowledge or you cannot give Judgment There are three things to be considered of the Parliament the Legislative part the matters of Priviledge and the Judicial part For the two first both Houses proceed only Secundum Legem Consuetudinem Parliamenti But for the Judicial part they have in all times been guided by the Statutes and Laws of the Land and have been ousted of a Jurisdiction in several Cases as by the Statute of 4 Edw. 3. 1 H. 4. And the Lords
in all Writs of Error and 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 Lords House It is not sufficiently disclosed to you that there is any such thing as an Impeachment depending there 't is only alledged that he was Impeached and so much the New-Books told us but to infer thence that there was an Impeachment carried up and lodged for the same Treason is no consequence And then 't is alledged Quae quidem Impetitio when no Impeachment is before set forth but only that he was Impeached generally When a Record is pleaded in Bar or in Abatement the Crimes ought to be set out to appear the same so are all the Presidents of Cok's Entries 53. Holcroft and Burgh's Case and Watt's and Bray's Case in 41 42 Eliz. Cok's Entries 59. Wrot and Wigg's Case 4 Rep. 45 c. 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 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 whethere it be the same matter or No I did demur with all the care I could to bring nothing of that in question I take it 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 The Soticitor General 's Argument was to this effect The Point in question is whether this Plea be sufficient in point of Law They on the other fide argue the Plea to be good both in matter and form I will not now debate whether Magna Charta which Ordains that every Man shall be tryed by his Peers and the Statute 4 Edw. 3. which says that the Lords shall not be compelled nor shall have power to give Judgment upon a Commoner have sufficiently secured the Liberty of the Subject from Impeachments Nor is it the question before you whether you shall judge of any matter that is a Right or Priviledge of Parliament This is an Indictment for Treason Neither will it be the Question whether an Impeachment depending in the House of Lords against a Commoner by the Commons will bar this Court of its Jurisdiction They say the Commons are the grand Inquest of the Nation and They make their Presntments to the 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 digintmem demini Regis so far 't is the King's Suit In an Impeachment the Witnesses for the Prisoner are not sworn neither hath the Prisoner Counsel in matter of Fact as he has in an Appeal at the Subjects Suit The King may pardon part of the Sentence It was so done in Richard the second 's time and in my Lord Stafford's Case but suppose it that 't is the Suit of the People yet that cannot preclude the King from his Suit The Consequence which they urge as such a dismal one will be nothing which is If he should be acquitted here he could not plead auter foitz acquit and so would be twice brought in Jeopardy for the same Offence for it is the same in all Cases of Appeals This is not like the Case of an Appeal for Murder neither for tho' it hath been used discretionarily to stay the Suit of the King and prefer the Subjects Suit it was because the Subject had the nearest concern as the Son in the Death of the Father The reason of that turns quite contrary here in this Case that very reason will have the King's Suit to be preferred for there is no Treason but against the King he has the nearest concern and the wrong is primarily and originally to himself Now for the Objection that if you try this Man upon the same reason you may try the Lords in the Tower Their Case is different and the Lords removing the Indictments against them into Parliament that no Prosecution might be upon them seems to imply that this Tryal may be in this Case for certainly they thought the King's Court might proceed had not the Indictments been removed As to the form of the Plea I conceive 't is not a formal Plea We know here of no form of Pleading an Indictment but what sets forth the Indictment particularly 't is so in all the Presidents I have seen and the Law-Books resolve it must be so as Wrott and Wiggs Case But they say there is a difference between their Case and those I put for that 't is the Course of Parliament to Impeach generally so they could not have pleaded otherwise then the Case was This Reason holds rather the other way For if in any Case such a general way of pleading with reference to the Record were to be admitted it were in Case of an Indictment because there is no Indictment but what particularly sets forth the Felony and when produced is capable of being applyed but here if the Record be brought in 't will no more ascertain the matter of the Impeachment then the Plea does already And as the Plea is naught for not setting out the Record so is the Averment insufficient too for the he does averr That the Treason in the Indictment and the Treason for which he was Impeached are one and the same and not diverse affirmatively and negatively yet he ought to have said That the Treason for which he is indicted and the Treason mentioned in the Impeachment it one and the same For if he was Impeached generally 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 tryed 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 tho' 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 the other matter into Question and tye up the hands of the Court. Serjeant Jefferies then said I shall only offer one word to the informality of the Plea They cite the Case of the Lords in the Tower as a Judgment for them which seems to be against them for by the Lords removing the Indictments into Parliament They seem to be of Opinion that notwithstanding they were Impeached before the Lords yet there might have been proceedings upon those Indictments had they not been
removed and there they remain to this day nay further to those Impeachments they have pleaded to Issue which is ready for Tryal but in the Case at the Bar there is only an accusation without any further proceedings thereupon I take not this to be such a dangerous Case as the Gentlemen of the other side do pretend for you to determine 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 Oathes than ever to be afraid of any Threats or Bugbeares 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 Cliping or Coyning We rely upon the informality and uncertainty of the Pleading only and meddle not with the Question whether an Impeachment in the House of Lords supersedes an Indictment in the King's Bench For We say they have not Pleaded it so substantially as to enable the Court to Judge upon the Question and therefore We pray your Judgment that the Plea may be over-ruled Sr Francis Wythens added I say that this Plea cannot be good to oust this Court of Jurisdiction The Prisoner shall by no means be admitted to averr the intention of the House of Commons before they have declared it themselves and therefore I conceive the Plea to be naught for that reason also for another because the Court in this Case by any thing expressed in the Plea cannot discern or takenotice whether it be the same Treason or not Treason generally alledged in the Impeachment is the Genus and the particular Treason in the Indictment is only 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 hood-wink and blind the Court instead of making the matter plain for their Judgment The Arguments being ended The Chief Justice said We never intended when We assigned four Council to 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 in a Case of Blood We were willing to hear all you could say But 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 at this day can Impeach a Commoner in the House of Lords nor what the Jurisdiction of the Lords is nor whether an Impeachment when the Lords are possessed fully of it does bar the bringing any Suit or hinder the Proceeding in an Inferiour Court but here We have a Case that rises upon the Pleadings Whether your Plea be sufficient to take away the Jurisdiction of the Court as you have pleaded it And you have heard what Exceptions have been made to the form and to the matter of your Pleading We ask you again whether you are able to mend your Pleading in any thing for the Court will not catch you if you can amend it either in matter or form But if you abide by this Plea then We 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 ender voured to have them examined here are nothing to the purpose for We call none to question here for Words spoken or Facts done in the Commons House or in the Lords which takes off the Instances you have given but our Question is barely upon the Pleading of such an Impeachment whether it be sufficient to fore-close the Hands of the Court And we will not precipitate in such a Case but deliberate well upon it before we give our Judgment Take back your Prisoner Upon Wednesday May 11th Fitz-Harris was again brought to the Bar and the Attorney moved for Judgment on the Plea and The Chief Justice thus delivered the Opinion of the Court Why Mr Fitz-Harris you have pleaded to the Jurisdiction of the Court that there was an Impeachment against you by the Commons before the Lords and you do say that that Impeachment is yet in force and by way of Averment that this Treason whereof you are Indicted and that whereof you are Impeached are one and the same Treason And upon this the Attorney for the King hath demurred and you have joyned in demurrer And we have heard the Arguments of your Counsel and have considered of your Case among our selves and upon full consideration and deliberation concerning it and all thath hath been said by your Counsel And upon conference 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 your Plea is insufficient My Brother Dol-been not being resolved but doubting concerning it And therefore the Court does order and award that you shall answer over to this Treason Thereupon he pleaded Not guilty and the Court appointed his Tryal to be upon the first Thursday in the next Term. Upon Thursday the 9th of June 1681. Fitz-Harris being brought to the King's Bench Bar the Court ordered the Jury to be called and Major Wildman being returned upon the Jury and appearing The Attorney General demanded whether he were a Freeholder in Middle sere He answered I was a Parliament Man and one that voted the Impeachment against this Person and dare not serve upon this Jury and he was set aside as not being a Freeholder John Kent being called said that he was no Freeholder and the Chief Justice declared that then he could not be sworn of the Jury Then Gites Shute Nathaniel Grantham Benjamine Dennis Abraham Graves Henry Jones and Isaac Heath were set aside as not being Freeholders And the Jury sworn were Tho. Johnson Lucy Knightley Edward Wilford Alexander Hosey Martin James John Vyner William Withers William Clenve Tho. Goffe Ralph Far Samuel Freebody John Lockyer Then the Indictment was read comprising several Treasonable passages in a Libel called The true English-man speaking plain English Then Mr Heath as Counsel for the King opened the Indictment and the Attorney General enlarged upon it and called the Witnesses Mr Everard testified that he and Fitz-Harris became acquainted in the French King's Service and F. Harris invited him to frame a Pamphlet to reflect upon the King and gave him Heads and Instructions tending to it and told him that he should have forty Guineas and a Monthly Pension which should be some thousand Crowns Fitz-Harris then demanded of Everard Whether he was not put upon this to trapan others which Everard answered with this question Can you mention any