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
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
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
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
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
I Do appoint FRANCIS TYTON and THOMAS BASSET to Print the Arraignment and Plea of EDWARD FITZ-HARRIS with the Arguments and Proceedings thereupon and that no others Presume to Print the same Fr. Pemberton THE ARRAIGNMENT AND PLEA OF Edw. Fitz-Harris Esq WITH ALL THE ARGUMENTS IN LAW AND PROCEEDINGS OF THE COURT OF Kings-Bench Thereupon in EASTER TERM 1681. LONDON Printed for Fr. Tyton at the Three Daggers and Tho. Basset at the George in Fleet-street 1681. THE PROCEEDINGS OF THE Court of Kings-Bench IN THE CASE OF Edward Fitz-Harris Esq In Easter-Term 1681. Easter-Term xxxiij Car. Secundi Regis in Banco Regis ON Wednesday April 27. 1681. the Grand Juries for the County of Middlesex were sworn and after the Charge delivered by Mr. Justice Jones His Majesties Attorney General desired That some of that Grand Jury which served for the Hundreds of Edmonton and Gore that for Oswolston Hundred being immediately adjourned for a Week might be present at the swearing of the Witnesses upon an Indictment for High-Treason to be preferred against Edward Fitz-Harris Prisoner in the Tower of London which was granted but the Grand Jury being under some scruples against receiving of the Bill desired the Opinion of the Court therein which Mr. Justice Jones alone thought not fit to give but ordered them to attend next day when the Court was full And accordingly on Thursday April 28. the said Grand Jury came to the Bar and Mr. Michael Godfrey Brother to Sir Edmond-bury Godfrey who was their Foreman addressed himself thus to the Court. Mr. Godfrey My Lord I have an humble request to make to the Court on the behalf of my self and another on the behalf of the Grand Jury for the County of Middlesex of which I am Foreman This Gentleman Mr. Ward I did beg of when I was Sworn to choose another man that was fitter for the service as being more experienced but he would not and I beg your pardon if I should commit any failure for want of experience But I do desire before we proceed upon this Indictment before us that this same Fitz-Harris may be examined about my Brothers Death of which I suppose he may know much because in the Printed Narrative he does speak of one De Puy who was a very active man about that Murder and how ill a man soever he hath been we do hope he hath so much Truth in him as to tell what he knows of that horrid Murder Therefore I pray your Lordship that you would grant an Habeas Corpus to fetch him before your Lordship to be examined upon that point before we do proceed that is all as to my self My Lord as to the Jury we do all of us humbly present this Paper and desire it may be Read in Court L. C. Justice What is it a Petition Cl. of Crown It is not subscribed by any body Jurors But we do all own it my Lord. L. C. Justice What is it Read it Cl. of Cr. We Michael Godfry c. being Sworn to serve in the Grand Inquest the Hundreds of Edmonton and Gore in this County of Middlesex c. and being yesterday sent for into the Court of Kings-Bench by a Messenger from the said Court to be present at the Swearing of several Witnesses produced on the behalf of our Sovereign Lord the King to prove the truth of some Indictments then in the hands of the Clerk of the Crown and observing that Sir William Waller Smith and others were Sworn to give Evidence against Edward Fitz-Harris now Prisoner in the Tower who in the late Parliament at Oxford was Impeached by the Honourable House of Commons in the name of themselves and of all the Commons of England of which we the said Michael Godfrey c. are part and as Jury-men be his Judges also We therefore Humbly desire the opinion of this Honourable Court whether it be lawful and safe for us the said Godfrey c. in case an Indictment of the said Fitz-Harris should be brought before us to proceed to Examin any Witnesses in reference to the said Indictment or any way to meddle with it or proceed upon it notwithstanding the said Impeachment and Votes pursuant to it by the said Honourable House of Commons And this being a great point in Law and of so great consequence for us to undertake in a point of Right not settled by Conference and remaining yet undetermined in the High Court of Parliament We therefore humbly desire the opinion of this Court upon the whole matter whether legally and safely we may proceed upon to find the Indictment of Fitz-Harris or no Mr. Godfrey My Lord We do humbly desire the Resolution of the Court in this matter as a thing of weight for we are between Two Millstones as we apprehend it and shall be Ground between them L. C. Justice Look you Gentlemen of the Jury We do not apprehend so Mr. Att. General My Lord Be pleased to spare me one word This Indictment was tendred to this Grand Jury yesterday and this Gentleman was against accepting the Bill till he had your Judgement and so were two more but for all that the body of them carried it all but these three to hear the Evidence whereupon Mr. Solicitor and my self did go on upon the Evidence and spent sometime in opening it to them and it was all given to them and truly the Gentlemen did seem to be abundantly satisfied what an horrid Villany it was and we did think they would have found the Bill but it seems they have prevailed to put these scruples into the others Heads L. C. Justice Look you Mr. Attorney We will not now inquire into that Gentlemen of the Jury you seem dissatisfied in this matter and desire the opinion of the Court in it whether you may lawfully proceed to find this Indictment or not We did hear yesterday of some scruples you made to my Brother Jones when you were Sworn and he sat in Court to give you the Charge which he thought not fit then to Answer but left it till to day truely we would have all things fairly and clearly done that we may understand how we go all along in this matter Your scruple is this Here was you say an Impeachment offered against Fitz-Harris by the Commons to the Lords and that Impeachment was of High-Treason which was not received and thereupon there was a Vote of the House of Commons that he should not be tryed by any other Inferior Court You desire now to know whether you may inquire concerning this Treason notwithstanding these things that have passed thus Mr. Godfrey Yes My Lord. L. C. Justice We are very ready and willing to satisfy any of the King s Subjects in any matters in Judgment before us that they may see there shall be nothing but fair proceedings in all Cases We do tell you t is our Opinions that notwithstanding any thing of this matter that you suggest in the Case before you it is fit for
Law that he have a Copy of the Charge L. C. J. Sir Fran. Winnington For you to come and say these things here methinks is very strange I think you can shew us no President that ever so long time was given to any man to Plead to the Jurisdiction of the Court nor that ever a Copy of the Indictment was granted in High-Treason and for you because of the greatness of the Treason therefore to go about to make us believe that it is more reasonable that a Copy of the Indictment should be granted in this Case than in another that the greatness of the Crime should be meritorious and deserve a Favour of the Court not granted in other Cases is a thing extraordinary Sir Fran. Winnington I do not press it that way I pray I may be understood aright upon what appeared the other day upon the nature of the Plea I present it to your Consideration Whether or no when you have been pleased to admit a Special Plea You will not let us see that which we are to Plead to L. C. J. No it was never thought of surely Mr. Just Dolben No it hath been constantly denied in Cases of Felony and Treason and so you will find the practice to have always been But I 'll tell you what hath been done sometimes They have granted some Heads out of the Indictment that should inable the Party to fit his Plea to the Charge and that was done in Wittypooles Case upon a Plea of Auter forti acquit They gave him the Times and some other Circumstances to fit his Plea to his Case but never was there a Copy of the Indictment granted Mr. Wallop My Lord Coke in his Preface to the 3d Report declares That it was the Ancient Law of England and so declared by Act of Parliament in Edward the Thirds time That any Subject may for his necessary Use have access to Records and Copies of them be they for the King or against the King and that the practice to the contrary is an Abusion L. C. J. So then Mr. Wallop you take it that we are bound when any man is Indicted of Fellony or Treason or any Capital Crime if he say he must have a Copy of the Record we must grant him a Copy of the Indictment If you think so the Court and you are not of the same Opinion Mr. Wallop I inform the Court what I have read and seen and where 't is to be found Mr. Williams My Lord It may be necessary for ought we know for him to Plead over to the Fact laid in the Indictment Not Guilty as sometimes it is requisite for the Party to do Now if we should mistake for want of having what is necessary and thereby preclude him of the Advantages he might have had if the Plea had been rightly drawn for ought I know it will lye upon me for ever My Lord I do it merely out of Caution and for my own Reputation sake If any Legal Advantage should be lost by my unwariness it will be a perpetual Reflection upon me And therefore I am so earnest in this Case And my Lord I can tell you what was done in a Case wherein I was of Counsel It was not a Case of Treason indeed but it was Murder the next Crime to it it was the Case of King and Thomas Thomas was Indicted of Murder in one County and found Guilty of Manslaughter and afterwards was Indicted for the same Murder in another County and being to plead this matter I did insist upon it that we ought to have a Copy of the Indictment There was some Debate about it but at last we had a Copy and we alledged there as here it was impossible to plead without it and the Cause was removed hither into this Court for Judgment Mr. Just Dolben The first Indictment you might have a Copy of for you were to plead the whole Record Mr. Williams Nay we had a Copy of that to which we pleaded L. C. J. Mr. Williams You tell us you may peradventure have occasion to plead over when you know t is High-Treason that you are Indicted of in framing and publishing a Treasonable Paper Cant you direct your Client to plead over without a Copy Certainly what you alledge in that for a Copy of the Indictment is Non Causa pro Causa Mr. Just Jones What prejudice will it be to your Client to plead over Sir Fran. Win. My Lord We only offer these things for our selves and we hope we shall not be pressed to do such a thing as this without having reasonable Time to consider and deliberate of it and without having what is necessary in order to it Then Mr. Attorny being sent for came into the Court. L. C. J. Look you Mr. Attorney These Gentlemen that were assigned of Council for Fitz-Harris do move the Court here and say they would have longer Time to draw up his Plea for they must make use of several Copies of Papers and they cannot so soon obtain them nor find out those Records they must use or other things as ingredients to this Plea in so short a time and they say likewise that they desire a Copy of the Indictment Now in truth they ought to have given you notice of this that you might have been here likewise to hear what they say If you do consent to give them longer time we shall be ready to do it but without it we shall not be willing to delay it Mr. Att. General I think your Lordship and the Court gave them a very just and reasonable time when you allowed them four Days and these Gentlemen are mistaken if they think they are assigned as Counsel to all Events They are only to draw up a Plea upon that matter that is alledged by the Prisoner and to the Jurisdiction of the Court. Sir Fran. Win. No My Lord I beg your Lordships pardon The Rule is to plead the special matter without more saying Mr. Att. General My Lord Under favour It is as I say and so is the course of Law For the Prisoner ought to acquaint you with the Points he desires his Counsel to be heard to And in this Case Fitz-Harris did acquaint the Court before he would Plead that he had some thing to object to the Jurisdiction of the Court and so his Wife directed him when she gave him the Paper I suppose she had other advise upon it for she could not draw it up in that Form it was her self and he did acquaint the Court he had matter to Plead to the Jurisdiction of the Court and concluded so in the Paper that was read And thereupon according to his Prayer he had Council assignâ—d him these Gentlemen I consented to it as it was just I should but that they should think that they are to advise him in other matters than that particular upon which they are assign'd I know they know their Duty better than to offer at any such thing
have pleaded no Record at all nor any Impeachment at all as this Case is for the Notes that I have taken my Lord are They say he was impeached by the Commons de alta Proditione but that is nought He ought in his Plea to have set forth his Impeachment and for what Crime particularly for either an Indictment or an Impeachment de alta Proditione or Felony or any other Crime is nought the Law allows it not He ought to set forth and must not aver upon a Record but set it forth in haec verba or in the substance of it and so ought to plead the Record intire as it is And for those necessary Averments that cannot otherwise be made the Law allows of them But in this Case he cannot come and aver upon this Record for he hath set forth the Impeachment not as it was but onely barely de alta Proditione in general which the Record must shew so as the Court may judge of it and it must not be intended But as they have set it forth in this Case there is nothing of Treason specified in the Record averred that can intend this to be the same and my Lord so are all the Presidents Whosoever pleads a private Act of Parliament must plead it as it is not in general that it is for the same matter for I take it then 't is nought and we are in your judgment that this is no Plea to the Jurisdiction upon that point L. C. J. Mr Attorney Do you think it prudent to argue it this time or will you take a day Pray consider of that a little Mr. Att. Gen. My Lord I think delay is very dangerous and mischievous in this Case L. C. J. We can give you as short a day as you please Mr. Att. Gen. But to satisfie the Court the Clerk will be ready with the Journals to shew that the Fact is not as they plead it L. C. J. Look you Mr. Attorney we must go on in a legal and formal way when we have a Plea put in Therefore whether you will not take time for a day or two to consider of this Plea you had the substance of it but nothing concerning the manner of the pleading they would not tell you whether they would plead it in Abatement or in Bar or how Therefore whether you will not take time to consider of this pleading for a day or two pray consider with your self Then the Kings Counsel consulted one with another Mr. Att. Gen. My Lord Not onely for what I have already offered but for many other reasons we can see this can be no way a Plea to the Jurisdiction of this Court for upon any Impeachment or Indictment the King hath Election to proceed upon which he will and if there were ten Indictments for one and the same thing if none of them are come to a Judgment the King may proceed upon which he pleases as in that Case of Ireland yesterday though the party were arraigned and ready to be tryed in Ireland yet the King might if he pleased try him here and the King hath ordered it so to be But my Lord I take it that this is not onely apparently a false Plea but a frivolous Plea in it self being to the Jurisdiction of this Court For there was never any thing of a Crime so great but this Court of Kings-bench which hath a Soveraign Jurisdiction for Commonors especially could take Cognizance of it and I put it upon that my Lord. Never was such a Plea pleaded to your Jurisdiction and therefore we pray your Judgment upon it Mr. Sol. Gen. My Lord before we come to that which is the Question if there were such a Plea pleaded to the Jurisdiction as they would have this to be we humbly pray the Judgment of the Court whether this be any such Plea at all as can bear any Debate For it will not be a Question now how far an Impeachment depending is a Bar to your Jurisdiction but the Question is first whether this be such a Plea For my Lord I do take it No Man can plead any Record in another Court any Indictment or Acquittal upon it by pleading it in this Form as this is pleaded by saying generally that such a time in such a Court he was indicted for the same Offence and was acquitted yet thus this Plea is and no more But he that will plead auter foitz acquit must plead that such a time he was indicted in such a Court and set forth the Indictment and all the proceedings of that Court upon that Record and then 't is proper for Judgment such a Plea is Formal and requires an Answer and it will be proper for us to give it an Answer and when such a Plea is put in we shall either Demur to it or give it the Answer that it requires of null tiel Record But this does not require any particular Answer because it sets forth no Record at all that we can answer to for it is not sufficient to say in general that he was Indicted and Acquitted or Impeached and then aver that it was for the same Offence but he ought to shew forth the Impeachment and set forth in the Plea the Record that upon it you may pass a certain Judgment Therefore we hope you will set this aside as not being at all Formal or requiring any Answer to it Mr. Serj. Maynard My Lord If you please to consider in this Case what is the Question and what not At present 't is not the Question whether if a Man be Impeached of High Treason by the Commons before the Lords and this Impeachment stands unreversed in the Court of Parliament I say 't is not the Question whether this Court have Jurisdiction over this Man for that Offence but the Question is Whether he hath put in such a Plea before you as will put that in Question Under Favour 't is not sufficient for him that will Plead a particular Record in Bar or other way and make use of it that he plead it in general Terms but he must set forth that Record as it is he must not give you the Title only or say he was Indicted for such a thing generally but he must so set it forth to the Court that if Issue be taken the Court may by comparing the Record with the Plea judg whether it be the same Matter or no. Now when he pleads he was Impeached for the same Treason he must set forth what that was that it may appear it was for the same Treason and if that be particularly set forth as it ought upon null tiel Record the Question will be Is there such a Record or not Now if he comes and says he was Indicted or Impeached and not for what in particular the two things that upon the Issue are to be compared are not made so fit for your Judgment In our Law my Lord if a Man will plead he need not set forth a
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
agreed then you may ask our Judgment L. Ch. J. We cannot put you to it to give a final Answer to bind the King therefore let it stand as it is we will consider of it Mr. Attor Gen. Then my Lord I 'le Demur immediately Mr. Sol. Gen. And we pray they may joyn in Demurrer immediately Mr. Serj. Jefferies If they do not mean it for delay now Mr. Attorney hath demurred I suppose they will joyn in Demurrer immediately Then the Clerk of the Crown drew up a general Demurrer which Mr. Attorney Signed and it was read in the Court by the Clerk of the Crown Mr. Attor Gen. We pray they may joyn in Demurrer Mr. Williams My Lord We that are assigned of Counsel for this Gentleman the Prisoner at the Bar that your Lordship may be satisfied and all that hear us that we do not design or desire to delay one Minute in this Cause do declare that we will joyn in Demurrer with them immediately Then the Clerk drew up the Joynder in Demurrer which being Signed by the four Gentlemen of Counsel with Mr. Fitz-Harris was also read in Court Mr. Attor Gen. MY Lord I pray your Judgment here is an Indictment for framing a Treasonable Libel Mr. Williams My Lord we hope we shall not be put Mr. Attor Gen. Pray Sir hear what I pray My Lord I desire your Judgment that the Plea may stand over-ruled for a plain fatal Error in it This is a particular Indictment for the framing a most pernicious scandalous Libel against the King and the Government for Treason in that particular And I think there is no Person does doubt but that this is a Matter within the Jurisdiction of this Court to try There is no difficulty in that What do they do to out this Jurisdiction They come and Plead that Fitz-Harris was Impeached de alta proditione that 's all they plead of High Treason in general to out the Court of a Jurisdiction of a particular Treason for framing a malitious trayterous Libel And this is a particular Treason upon the Statute of the 13 th of this King Now they have pleaded no particular Treason upon that Statute they were Impeached for nor upon the Statute of the 25 th of Edw. the 3 d which hath a general Clause of a Declaratory Power and it may be he was Impeached upon that and we shall not intend it otherwise that being the general Law the other but a particular Law for this Kings Life Now in all Pleas to the Jurisdiction they ought to be the strictest and most certain of any Pleas whatsoever And as I offered before to you so I do now again they ought to be ready with the Record to justify their Plea but this in short I insist upon that to out a Court of its Jurisdiction for a particular Treason 't is not a good Plea by saying he was Impeached or Indicted generally of High Treason and no Averment can possibly help it For it appears by the Impeachment 't is not for the same and 't is rather to be intended that it was not but the Impeachment being general that they went upon a Declaratory Power in the Statute of the 25 th of Edw. the 3 d which reserves to them the Power of declaring Treason at large and not upon that which may be tryed here in an Inferiour Court upon a particular Statute I say my Lord they ought to have pleaded it certainly which they having not done 't is Fatal and I pray your Judgment upon it and I hope they are ready to make good their Plea Mr. Sol. Gen. My Lord That that we do say to it is That this Plea is neither good in Matter nor Form and if it had been pleaded never so formally perhaps we would have demurred to it But as now it is pleaded it is not Formal and therefore we pray it may be over-ruled The Exception we take to it in point of Form we think is Fatal for there is no Man that pleads an Indictment or an Impeachment in another Court but must set forth the Indictment in the Plea which is not done in this Case and we take that to be fatal to it For a Man that will plead auter foitz acquit must set forth the Indictment and all the Proceedings of the Court upon that Indictment this is the constant pleading in all Cases and particularly in Vaux's Case the 4 th Report who ever will plead auter foitz acquit must set forth the Record before it will require an Answer to be given to it L. Ch. J. What do you say to it Gentlemen for the maintaining of your Plea Mr. Williams This is that we say my Lord We hope your Lordship and the Court in this Case will not tye us up presently to come and argue this Matter One thing I would mention because it hath been said there was never such a Precedent I think to this Purpose the Precedent of Elliot's Case is very full in it Mr. Attorney is pleased to say he never found that any Plea to the Jurisdiction did require a Demurrer but was over-ruled or allowed by the Court presently But that Case is plain to the contrary upon that very Matter It was an Indictment brought against Elliot for some Misdemeanours committed by him in the House of Commons this being pleaded to the Jurisdiction of the Court the Attorney General at that time said it was not to be received that was the Matter he insisted on then that should be rejected but the Court did then as you do now over-rule the Attorney in it and put him to demur L. Ch. J. We have done the same for you Mr. Williams Then my Lord here is a Precedent that Mr. Attorney hath not seen Now for time the Court in that Case did not tye the Counsel up to argue the Plea presently but gave them time till the next Term. We ask not so hard a thing of the Court as so long a time in this Case only here is a Man's Life in Question 't is indeed for Treason and so it is of Consequence to the King and there is also the Priviledg of Parliament consequently concerned in it What time your Lordship and the Court shall think reasonable for us to be ready in we leave it to your Lordship we design not to delay at all only we desire a reasonable time Your Lordship did in the Case of Plunket give him time for his Tryal till next Term which is as high a Treason as this I am sure L. Ch. J. You would have People think you have strange measure in this Case that you have not the same time given to you that was given to Plunket Pray consider you object these things as tho the Court were hard upon you to tye you up in point of time Is your Case like Plunket's pray give us leave to clear our Accounts as we go along he is brought from Ireland hither is Indicted for what he did in
fond of a Man's Life that hath been Guilty of such a Fact as this For Example sake surely if that be the thing in question we ought to have speedy Justice executed upon a Man that deserves no Mercy Your Lordship was pleased to take notice of another Circumstance in the Case of Plunket He was Indicted he was Arraigned and was to have had his Tryal in Ireland and was to fetch his Witnesses from thence all these things were in that Case He desired time to consider what he should plead but your Lordship finding an Indictment found against him according to the Rules of Justice over-ruled that matter he suggested and made him plead Not Guily before ever you admitted him to debate any thing of that Fact And then it appearing to your Lordship to be in another Kingdom and that it was impossible in regard of the hazards of the Winds and Seas to get over his Witnesses in a little time your Lordship gave him time but you gave him as strait a time as could be consistent with the Rules of Justice and as his Case would bear Now my Lord this being offered in a Case of that expectation which the Case before you seems to have We desire the dispatch of it as much as we can In case the Man be Innocent God forbid but he should be acquitted but if he be Guilty God forbid he should live a Minute L. Ch. J. Surely you don't take the Case Gentlemen to be a Case of so much Difficulty as to deserve long Consideration we did expect truly that you would have been ready to have maitained your Plea Mr. Williams My Lord we do not desire any long time be pleased to give us a day or two or three as you please L. Ch. J. 'T is said 't is in a Case wherein the Life of a Man is concerned 't is true here is the Life a Man of whom till he be found Guilty we ought to have Consideration as we would of any other whatsoever For we have no reason to conclude him Guilty till we hear him and we are to be indifferent till we hear the Evidence therefore notwithstanding the Indictment we ought to weigh his Life as we would another Man's till he be found Guilty We in our selves do not see there is any so great matter of Necessity for time to consider of this Case yet I must tell you since they pray it Mr. Attorney we are inclineable to give them a day or two's time to consider of it and see what they can say to maintain this Plea But then Gentlemen if we do so you must take notice we will call you to plead presently after our Judgment upon the Plea Mr. Williams My Lord we have nothing to do with the Fact of this Case we are only to speak to the Plea Mr. Serj. Maynard Pray how then is your Life in question upon the decision of this Plea L. Ch. J. Brother they do not speak as to this Plea that it hazards his Life but the subjecta materiae upon the decision of it supposing Judgment be against the Plea Therefore Mr. Attorney we do think fit to give him till Friday Morning and he shall be brought hither then again by the Lieutenant of the Tower then we will hear these Gentlemen and if they do not shew us any considerable Matter to maintain the Plea they must expect Judgment presently Mr. Attor Gen. That certainly will be too long a time pray my Lord they ought to have been ready now if they will be pleased to be ready to Morrow Morning I pray it may go off to no further time Mr. Just Jones There is a necessity my Lord I think that it should be so for there is a long Tryal at the Bar here on Friday Mr. Williams That is a very short time indeed Mr. Just Jones You must be ready to Morrow Morning Mr. Williams Unless my Lord you will give us a little more time you had as good give us no time L. Ch. J. It seems the business of the Court is such on Friday Morning you can't be heard Mr. Just Jones Either it must be to Morrow Morning or Saturday and that is Exchequer-Chamber day Mr. Sol. Gen. My Lord I believe they are not in haste L. Ch. J. Mr. Attorney We would give them a reasonable time but yet we would do nothing that might make unnecessary delays in this Case Mr. Attor Gen. I pray my Lord let it be no longer than till to Morrow and that is more than ever was given in such a Case I know it was denyed in my Lord Stafford's Case they would not give the Counsel any time but would make them argue presently L. Ch. J. As to that Mr. Attorney every Case stands upon its own Bottom Mr. Serj. Jefferies My Lord we have your direction for to Morrow Morning Sir Fra. Win. No No my Lord we hope not so L. Ch. J. Look you Gentlemen to accommodate you the Court does think fit thus to do we will be here on Saturday by seven a Clock in the Morning on Friday we can do nothing for there is a long Tryal at Bar that will take up our time But on Saturday we will be here by eight a Clock sitting and expect you to be here by that time and we cannot afford you then long time to argue in because it is an Exchequer Chamber day Mr. Attor Gen. If Judgment be against the Plea they must plead presently then that we may not lose the Term for a Tryal L. Ch. J. You must take notice of that by the Rules of the Court they must do it Mr. Attorney If our Judgment be against them the course of the Court is so we can't rule it one way or another Mr. Serj. Jefferies But then they ought not to pretend they have no notice their Witnesses are out of the way and so hinder the Tryal Mr. Just Jones No No. Mr. Fitz-Harris My Lord I desire I may have these Lords come to me my Lord of Essex my Lord Salisbury my Lord Mayor your Lordship and Sir Robert Clayton to perfect my Discovery I have something to discover to your Lordship and them L. Ch. J. Your Discovery of what do you mean Mr. Fitz Harris Of the Plot and of the Murder of Sir Edmondbury Godfrey L. Ch. J. We did examine you about the Murder of Sir Edmondbury Godfrey Mr. Fitz-Harris Your Lordship went away in haste before I had told all I could say L. Ch. J. We asked you ten times whether you had any more to say and you said No. Mr. Fitz-Harris My Lord I was in Confusion and Consternation I scarce knew what your Lordship said to me L. Ch. J. We were not in haste we asked you often that Question Mr. Fitz-Harris It was haste to me because I was not provided of the Questions you asked me Mr. Just Dolben To some of the Questions we asked you you answered readily and freely but to some we could not get
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
this Person come to be Indicted again for the same offence there is a Record for him to plead that will shew forth the whole matter and if he does not plead that Record 't is his own default But in this Case here is no such Record to plead and there is the mistake upon which Mr. Attorney hath gone all along And you must in this Case be governed by the Rules and Methods of Parliament which is this the Commons in the name of themselves and of all the Commons of England Impeach such a person and they bring up this Impeachment to the Lords in general and there they have Liberty to present Articles in due time after due Consideration which ought not to be done hastily All this is no Record such as may be had in the Case of auter foitz acquit for first the Impeachment of the Commons is no Record when 't is brought up to the Lords there is only an entry into the Journal for the Lords that such a day such a person came from the House of Commons and Impeached such a one And you are not to expect the same strict Method and form of proceeding as in other Courts the Courts of Westminster-Hall or inferior Courts Your Lordship in this Case must be governed by such a proceeding as is in Parliament And must take it as it is and we have said enough and as much as can be in our Case We have not indeed set forth an Indictment a Plea a Venire facias c. For there is no such proceeding in Parliament but there was an Impeachment by the Commons in the name of themselves and of all the Commons of England before the Lords that it is in pleno robore Effectu and that it was secundum legem consuetudinem Parliamenti prout patet inde inter Recorda remanen c. And here is enough For when we refer you to a Record that is as much as if we had set forth the Record it self for we tell you there is such a Record and we point you to the place where you may find it So we take it 't is a very full Plea and if not 't is as much as any man can plead in such a Case though it be not pleaded particularly And My Lord that your Lordship is to judge in this Case according to the Methods of Parliament I depend upon the authority of My Lord Coke I will repeat you some of his words speaking of the Law of Parliaments he says and he borrowed it out of Fleta That this high Court of Parliament propriis suis Legibus 〈…〉 Et ista lex ab omnibus quaerenda à multis ignorata à paucis Cognita But he tells you and certainly he says true in it Who ever will be learned in the Law of Parliaments must repair to the Rolls of Parliament and give me leave to cite his Opinion which I hope may be of great weight with this Court It is in the fourth Institutes fol. 15. He says for any thing moved or done in the House of Commons it ought to be determined adjudged and discussed by the course of Parliament and not by the Civil Law nor yet the Commons Laws of this Realm used in more inferior Courts which was declared so to be secundum legem consuetudinem Parliamenti concerning the Peers and the like pari ratione for the Commons and that stops this Court in our Case For so it is said in this Plea which is the matter you are to be governed by that it is secundum legem consuetudinem Parliamenti He tells you further there is no notice to be taken of any thing said or done in the House of Commons but by the Report of that House and every member thereof hath a judicial place he takes it out of Henry the 7th and so the Book is expresly And he goes on this is the reason that Judges ought not to give any opinion of matters of Parliament because it is not to be decided by the Commons Laws but secundum legem consuetudinem Parliamenti So he tells you you are bound by the Methods of Parliament and I need not press the thing much after his authority for he was learned in Parliament matters But I would crave leave to mention a Case that was lately in this Court and that was the Case of My Lord of Shaftesbury who was brought by Habeas-Corpus to this Court and upon that Habeas-Corpus it was thus returned that he was committed by order of the Lords in Parliament there to remain during the pleasure of the King and of the House of Lords And this for an high Contempt committed in that House Upon this return we insisted that My Lord might be bailed because it was uncertain the pleasure of the King or the House of Lords and upon reading the Order there is no Crime expressed but only in general for an High Contempt I speak it not for the particular Cases sake but to apply the reason of it to our Case the reason then given by the Judges Mr. Justice Jones will please to remember it for it was particularly declared by him why they could not baile My Lord was this He was pleased to say we in this Court take notice of the Court of Exchequer and other Courts in Westminster-Hall and it would be strange if we should not take notice of the Course of Parliament and House of Lords And if you are bound so to do in other Cases you are bound to do so in this And if without pleading you take notice of the Course of those Courts you will also take notice of the Law of Parliaments and Customs of Parliaments and that I may make use of it to our purpose in this Case we need not particularly say secundum legem consuetudinem Parliamenti in hoc instancing in this and that and t'other particular but the Court is to look into it without my pointing to the particular Law of Parliament So that My Lord here is ground enough before the Court and I know the Court will look into it before they give judgement The second Exception is this that it is not said in the body of the Plea that Fitz Harris is impeached for this Treason but it comes in only in the Averment Now My Lord as to that we must pursue the Impeachment as it is in the Lords Journal 't is for Treason generally there and 't is said to be secundum legem consuetudinem Parliamenti which goes to all and there is a Record of it among the Records of Parliament and Mr. Attorney hath confessed it by the Demurrer And that this is the same Treason we do Aver in fact which also is confessed by the Demurrer and your Lordship will see by the Records and forrus of Entries in Parliament that I may not repeat things over and over again that this is the Course and Method of Parliaments Mr. Attorney hath fancied an Exception of
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
they have denied to answer when their Advice has been demanded and insisted upon it that they were not proper Judges of such matters as in 31 H 〈◊〉 〈◊〉 Par. N. 26. For there among other things the Judges were demand 〈◊〉 â—…ether the Speaker of the House during the Adjournment of Parliament might be arrested they desired to be excused from giving any opinion for said they in this great matter they ought not interpose it being a matter of Parliament In the great Council primo secundo Jacobi about the Union of both Kingdoms the Judges refused to give their opinions upon several Questions put to them desiring to be excused for that such things did not belong to them but were matters fit for Parliament only My meaning is to infer from hence that since it is pleaded here to be according to the Law and course of Parliaments and Mr. Attorney hath acknowledged it that now your Lordship is foreclosed from further meddling with this Case it appearing upon record to be a matter whereof you cannot judge But the objection is that admit the Impeachment should be taken to be according to the course of Parliament yet it is so general that the Court cannot judge upon it I answer that 't is evident the Impeachment was not for nothing 't is most certainly to be presumed that such a body of men as the House of Commons would not Impeach a man for no Crime Fitz Harris Avers by his Plea that it was for the same Treason for which the Jury have found this Bill against him Now this Averment makes the matter as clear to the Court as if the Impeachment had mentioned the particular Treason Every days Experience shews that Averments which are consistent with the Record are good and are of necessity to clear the Fact to the Court so that the Judges may give a judgment upon it If the Defendant will plead a Recovery in a formal action in bar to an action of Debt or other action it is not enough for him to set out the Record he must Aver also that the Cauuses of the action are the same and that it is the same person who is mentioned in one Record and in the other Records and this shews that the most special and particular are of no use without Averments My Lord there is a Case that I find directly to this purpose which goes further than the Case I did but now put and that is 26. Assiz pl. 15. It is also mentioned in Stamf. Pla. Cor. 105. Where a man was indicted for the Murder of I. S. and he pleads a Record of acquittal where he was indicted for the Murder of I. N. But he Avers that I. S. in this Indictment is the same person with I. N. in the other Indictment and that was adjuged a good Plea and the party was acquitted though the Averment there seemed to be a contradiction to the Record This makes it clear that if an Averment may consist with the Record the Law will allow it In Mores Rep. 823. Pl. 1112. The King against Howard it is said that if an Act of Parliament be certified into Chancery no Averment lies to say this is no Act of Parliament because the Commons did not assent to it but if it appears in the Body of the Act that the Commons did not assent as if it was ordained by the King and Lords and without mentioning any assent of the Commons There it may be Aver'd to be no Act for this being a matter consistent with the Record is Averrable And so it is agreed in 33 H. 6. fol. 18. Pilkingtons Case Now Mr. Attorney has his Election here as it is in all such Cases either to plead Null tiel Record and then we must have produced it and if we had fail'd it had been against us as to the whole Plea Or if he would not deny the Record as indeed he could not he might have taken issue upon our Averment that it was not for one and the same offence but he has Demurred and thereby confessed there is such a Record and confessed the Averment to be true that he was Impeached for the same Crime and that he is the same person and now it is plain to your Lordship that I stated the Question right at first My Lord I shall cite you one Precedent out of Rast Ent. fol. 384. and 385. Where a man was Indicted and acquitted before certain Justices and being Indicted de novo Lord Chief Justice It is Title Gaole delivery is it not Sir Fran. Win. Yes My Lord it is And he pleads that he was Indicted coram aliis Justitiarlis for the same fellony and upon this Plea the entry is made Quia testatum est hic in Cur. in praefatâ—s Justiciarios that the said party was acquitted of the fellony in manner and form as he had alledged in his Plea Therefore 't is adjudged that he should be discharged and go without day My Lord I do not altogether rely upon this Precedent for Law but I find it in that book Now My Lord I shall offer some Reasons in general First that when once the Commons in Parliament in the name of themselves and of all the Commons of England have lodged an Impeachment against any man it seems to me against natural Justice that should ever any Commoners afterwards come to try or judge that man for that fact I speak this because every man in England that is a Commoner is a party to the accusation and so we have pleaded by such an Impeachment a man is subjected to another sort of Tryal Magna Charta says that every man shall be tryed by his Peers or by the Law of the Land And by the Law of the Land there are several sorts of Tryal some by Juries others not by Juries This is one of those sorts where the Tryal is by the Law of the Land but not by his Peers for it would be hard that any man should come to Try or to give judgement upon a person who hath been his accuser before And in effect hath already given his judgment that he is Guilty by the accusation of him and so stands not indifferent By this means the Tryal by Jury is gone And the Lords who are the Peers of the Realm are Judges in point of fact as well as Law Here is an enormous offence against which all the Nation cryes for so they do in the Impeachment Then says the Law it is not fit that you should try him who are parties but the Lords are the proper Judges they shall Try him per testes and the Commoners may come in as Witnesses but not as Judges My Lord another reason is this that if an Appeal of death or any other Appeal were depending before the Statute of 3 H. 7. cap. 1. The King could not proceed upon an Indictment for the same fact because the King as the Common parent does only take care that such Offenders should not go away
but the Impeachment that was just mentioned before But what they mean by this to say this is not the same Impeachment when the Words are positive that 't is the same I must confess I cannot Fathom My Lord there was another thing spoken the last day but they have not mentioned it now if there be any thing stirred in it I hope your Lordship will be pleased to hear us before you give your Judgment in it That it was not said to be sub pede sigilâ—i but I know they won't insist upon it therefore I say nothing to that But the great Question now is whether or no this be not too general the alledging that he was Impeached in Parliament and not saying how or for what Crime tho there be an Averment afterwards that 't is for the said Crime Whether this be not so general as that therefore this Plea should be naught First for this of the Averment I take it with submission let the Crimes be never so particularly specified in the Record that is pleaded and in that upon which the party is brought in Judicature yet always there must be an Averment and that Averment is so much the substantial part of the Plea That let the matter never somuch appear to be the same without an Averment it would be naught And it must come to be tryed per paâ—â— whether the offence be the same or not for if a man plead one Indictment for the murder of I. S. to another Indictment for the murder of I. S. tho' they bear the same Name he must Aver they are one and the same Person For else Non constat to the Court but there may be two I. S. Therefore all Averments are still the substance of the Plea to bring the Identity of the matter into Judgment and are to be tryed by the Country so then the Objection to the Generality is not an Objection to the substance but rather an Objection to the form on their side Because the substance is alledged in the Plea that it is for the same Treason which substance if Mr. Attorney had thought not fit to have demurred to but taken Issue on must have been tryed per pais Having thus spoken to the Averment My Lord Let me speak to the general Allegation that he was Impeached for Treason and not saying particularly what the fact was My Lord If they admit the Law that an Impeachment in Parliament does suspend or take away the Jurisdiction of this Court then they have admitted a great part of the fact and then the matter in Question will be what Impeachment in Parliament it is that will take away the Jurisdiction of the Court and there can be but two sorts the one at large where the whole Offence is specified the other not at large but only in general Words the Knights Citizens and Burgesses in Parliament Assembled in the Name of themselves and of all the Commons of England do Impeach such an one of High Treason Now my Lord if so be such Impeachment in Parliament be a good Impeachment then have We I think the most plain Case pleaded that can be as plain as the Fact that this is an Impeachment in Parliament and then this Court is outed of its Jurisdiction They that have gone before have said which I must pray your Lordship to remember That the Court and we are to take notice of the proceedings in other Courts as other Courts are bound to take notice of the proceedings of this Then I would suppose in other familiar Cases there is generally as 't is true in Sparry's Case the Writ or the Declaration which does in all civil Causes set forth the particularity of the thing in Question yet in some Cases we are sure it does not do so but the Course and practice of some Courts admits general proceedings Now where-ever that is so the party cannot mend himself by making their Course otherwise than it is For he must not say it is more particular than the Course of the Courrt does make it Therefore he hath no other way by the Law to bring his matter on and help himself but by an Averment that 't is the same I will suppose a Case of such a Nature as this a man brings an Account in London upon Concessit Solvere and he does not particularize in the Count any thing what or how his Debt did arise But after he brings another Account or delivery aspecial Declaration in an Account of Debt shall not I because the first Declaration is in general Words Aver that this is the same matter that he sued for by the Concessit Solvere which he now sues for in this particular Declaration Or suppose a man in this Court does bring an Account for divers wares and Merchandises sold and does not express any particulars but that he was indebted in general Words for Wares sold and afterwards he comes and brings another Account and says it is for such and such Wares so much for Cloth so much for Wine c. tho' his first Declaration be in general not expressing what the Wares were and the last is particular shall not I come and plead in Abatement to the second Declaration that the first and second were for one and the same thing Suppose again an Indictment of Barrelry be found against a man which is an Offence that is only general and hath no particulars alledged in the Indictment Should not a man that is the second time Indicted come and say this is one and the same My Lord under favour in all these and such like Cases the Law must be Govern'd by its own proceedings and take notice of the Nature of the things depending before the Court. And if so be upon Consideration of the Nature of the thing there is as much of certainty set forth as the Case will admit and is possible to be had we must permit the party to plead as he can and help himself by the Averment Then my Lord the Question is whether an Impeachment generally in Parliament without particularly setting forth for what be a good Impeachment there or no. If they say it is not then the bottom of the Plea is naught and all is quite gone but if they say it is then I have Pleaded my matter as it is For I cannot say that that is particular or make that particular that is not and I have done all that is possible for me to do in my Case I have Pleaded what is in the Record and as 't is in the Record from which my Plea must not vary and I have Averred 'tis for the same matter and you have Confessed it by the Demurrer My Lord I would not intangle the Question but I must Confess I do not see how they can extricate themselves out of this Dilemma if they do admit a General Impeachment is a good Impeachment Then there are fresh Instances of this considerable in the Case as that which hath been particularized
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