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
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
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
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