the Prisoner stands Impeached by the Commons of England in Parliament Assembled of High Treason Secondly That the Impeachment thus made by the Commons in the Name of themselves and of all the Commons of England before the Lords in Parliament for Treason is now in being Thirdly Which I omitted in the opening of the Plea that this was done sed in Legem Cons Parliamenti and being so remains in plenis suis Robore Effectu And more particularly this Plea does refer to the Record for the Parts and Circumstances of the Impeachment prout patet per Record inde inter c. So that it does refer the Impeachment it self to the Record and tells you this is among the other Records of that Parliament all this is admitted by the Plea Fourthly And moreover that this Treason for which he stands Impeached before the Lords and the Treason for which he stands Indicted before this Court are one and the same Treason and no way diverse and so they are the same numerical thing and there is no manner of Difference And that this Person Fitz-Harris now Indicted and the Fitz-Harris In peached are one and the same Person and no way diverse And withal my Lord it appears plainly upon the Record that this Impeachment was depending before the Indictment found for the Parliament was the 21 st of March and it appears by the Record this is only an Indictment of this Term. And another thing I must entreat you to observe my Lord it does not appear but that this Parliament is still in being for any thing to the contrary in the Record and as I take the Case then it must be admitted so to be So then I take the Plea to be in substance thus though Mr. Attorney was pleased to except to both the substance and the form but in substance the Case is thus Here is a Person Impeached in Parliament by the Commons in Parliament for High Treason before the Lords in Parliament and for ought appears that Parliament still in being and this impeachment still depending Then here is an Indictment for that very Treason whether your Lordship now will think fit in this Court to proceed upon that Indictment is the substance of the Case I shall speak to the form by and by My Lord by the way I think it will not be denyed but that the Commons in Parliament may Impeach any Commoner of Treason before the Lords in Parliament I take that to be admitted And I do not find that Mr. Attorney denys it or makes any doubt of that for I think that was the Case of Tresilian and Belknapp who were Impeached in Parliament by the Commons before the Lords I am sure my Lord Chief Justice Vaughan does in his Reports in Bushell's Case say so and upon that Impeachment of the Commons one of them was executed and the other banished in Parliament My Lord I cite it not merily but I cite it as Authority Indeed I do not go so far as to cite the Parliament Roll it was in the time of Rich. the 2. I have not seen the Roll of late truly but I am sure 't is upon the Roll and there 't is to be found Since then Impeachments of Commoners will lye in Parliament here then My Lord will be the Question whether this Court may proceed upon an Indictment for the same offence the Parliament was for And here I shall distinguish upon Mr. Attorney he does allow the Parliament to be a superior Court but admitting that he says though it be so yet the inferiour Court having Original Jurisdiction of the Person and the Cause it may proceed notwithstanding an Indictment in the Superior Court And Ergo he does inferr that this Court may proceed upon an Indictment notwithstanding an Impeachment in Parliament My Lord I will compare a little the Case of an Indictment and an Impeachment and shew you how manifestly they differ I do take the Case of an Impeachment not to be the Case of an Indictment and so the Principle that Mr. Attorney hath taken is wrong and the ground of that Argument wrong I cannot say 't is like the Case of an Appeal but I may say the Case of an Appeal is like the Case of an Impeachment For in an Appeal of Murder though the Indictment be Capital and the same that is given upon Criminals prosecuted for the King yet it is at the suit of the party as in this Case 't is at the suit of the Commons and so 't is an intimation of and Analogical to and bears the resemblance of an Impeachment in Parliament I will not compare an Impeachment to an Appeal but I will say an Appeal imitates an Impeachment And 't is as plain as can be because Appeals are proper to Courts in Westminster-Hall and 't is at the suit of the party the Prosecution and all the Process is ad instantiam partis so is an Impeachment at the suit of the Commons An Indictment is found upon the presentment of a Grand Jury who are Sworn ad inquirendum pro Domino Rege pro Corpore Com. And 't is a mistake in the form when 't is said pro Corpore Com. for it is not for the King and the body of the County but for the King for the body of the County But now an Impeachment in Parliament is otherwise 't is not in the Name of the King but in the Name of the Commons in Parliament and of all the Commons in England wherein it suites with an Appeal which is at the suit of the party so that 't is like an Appeal and not like an Indictment an Indictment is for the King an Impeachment for the people And as it is in its nature and constitution different so 't is in the prosecution also for that is by the Commons of England they are the prosecutors in effect but now in all Indictments they are prosecuted always by the Kings Attorney or by some person in the name of the King We are now arguing upon the Methods and forms of Parliament therefore I must crave leave to insist upon those Methods more particularly The Commons they bring up the Impeachment to the Lords the Commons they prosecute the Impeachment they manage the Evidence upon the Tryal and when the Lords have considered of it and have found the fact the Commons come and demand Judgment and Judgment is given at the Prayer of the Commons and no otherwise and there are no proceedings by the Attorneys Indeed there have been attempts by Attorneys to prosecute persons in Parliament by exhibiting Informations in the Parliament but what success they have had I leave to them to consider that are concerned and have read the Rolls of Parliament But it is not safe to alter the old ways of Parliament therefore I take it under Correction that it is out of the road of Comparisons when they will compare an Indictment and an Impeachment together for they do not agree
you to enquire upon the Indictment and you are bound to enquire by vertue of your Oaths if an Indictment be exhibited to you you cannot nor ought to take any notice of any such Impeachment offered to the Lords nor of any such Votes of the House of Commons afterwards if any such there were for they will not excuse you who are Sworn to Inquire of the matters given you in Charge in case you do not your duty and therefore if you have Evidence enough given you to satisfy you that the Indictment is true you are to find it And likewise we ought to proceed according to Justice in Cases that are brought before us Neither you nor we can take notice of these things in case there be any such as you suggest nor will they excuse us before God or man for the breach of our Oaths if we should do the contrary And this we declare to you not only as our Opinions but as the Opinion of all the Judges of England For when we did hear there was a scruple made by you the Gentlemen of the Jury because we would make the way fair and clear all the Judges did assemble to debate the matter for your satisfaction not that we were dissatisfied at all in it our selves but that it might appear to you and the Kingdom That there is nothing but fairness used in this Case as in all others and all the Judges Nemine contradicente were all of Opinion that you are not to take notice of any of these things but if the Indictment be exhibited and you have Evidence enough you ought to find it This we have endeavoured for your satisfaction to make your way clear Jurors We humbly thank your Lordship Then the Jury went away and afterwards found the Bill On Friday April 29. 1681. Sir Tho. Stringer the Kings Serjeant at Law moved for an Habeas Corpus to bring up the Body of Edward Fitz-Harris to be examined by the Court about the death of Sir Edmondbury Godfrey The Court granted the Writ and said he should be Arraigned upon the Indictment against him and then they would Examin him Saturday April 30. Edward Fitz-Harris was brought with a strong Guard to the Kings-Bench Court Mr. Serj. Stringer Your Lordship hath been pleased to grant an Habeas Corpus for Fitz-Harris and he is brought up and attends here L. C. Justice We will send for Mr. Attorney Brother Mr. Serj. Jefferies I beg this of your Lordship That you will be pleased to stay a little I know not how he comes to be brought up here Mr. Attorney it seems says he knows nothing of it L. C. Justice Well well send for Mr. Attorney Brother and hear what he says Which being done and Mr. Attorney come in the Prisoner was brought to the Bar. Mr. Serj. Stringer My Lord I would humbly move he may be brought into Court to be Examined before he be Arraigned L. C. Justice Why so Mr. Serj. Stringer My Lord We would have him Examined concerning Sir Edmund-bury Godfry's Death L. C. Justice What matters it That may be done after as well as before Cl. of Crown Edward Fitz-Harris Hold up thy Hand Mr. Fitz-Harris My Lord I have been a close Prisoner these ten Weeks and have not had the Liberty to see any one in the world I desire I may have Liberty to see my Friends and speak with them before I do answer to any thing Mrs. Fitz-Harris My Dear Plead to the Jurisdiction of the Court here s a Plea drawn by Council for you L. C. Justice You had best consider well what you have to do Mr. Fitz-Harris My Lord I desire this Paper may be read by the Clerks Mr. Just Jones No no that cannot be till you have answered to your Indictment Cl. of Crown Pull off your Glove and Hold up your Hand Mr. Fitz-Harris My Lord I desire leave to Plead to the Jurisdiction of the Court. L. C. Justice You shall have it Mr. Fitz-Harris I desire this Plea may be allowed Mr. Justice Dolben Hear your Indictment first and Plead afterwards L. C. Justice Look you Mr. Fitz-Harris Let us thus far direct you Your holding up of your Hand and hearing the Indictment read will not hinder you from any manner of Plea which you may have to make afterwards but you can Plead nothing before Cl. of Crown Pull off your Glove and hold up your Hand which he did And then the Clerk of the Crown read the substance of his Indictment to him in English And then speaking to him said How saist thou Edward Fitz-Harris Art thou Guilty of this High-Treason whereof thou standest Indicted and hast been now Arraigned or Not Guilty Mr. Fitz-Harris My Lord I offer this Plea to be read first before I answer L. C. Justice That Plea Take his Plea Let us see what it is We take it to read it now Mr. Just Jones Not to allow it L. C. Justice Only to see what it is Cl. of Cr. Reads ET praed Edwardus Fitz-Harris in propria persona sua venit dic quod ipse ad Indictament praed modo versus eum per Jurator praed in forma praed compert respondere compelli non debet quia dicit quod ante Indictament praed per Jurator praed in forma praed compert scil ad Parliam Dom. Regis nunc inchoat tent apud Oxon. in Com. Oxon. 21 die Martii Anno Reg. Dom. Caroli Secundi nunc Regis Angliae c. Tricesimo Tertio ipse idem Edwardus Fitz-Harris per Milites Cives Burgens ad idem Parliament ad tunc ibid. convocat assemblat de pro praed Prodition Criminibus Offens unde ipse idem Edwardus Fitz-Harris per Indictament praed modo indictat existit secundum Legem Consuetudinem Parliamenti accusat impetit suit coram Magnatibus Proceribus hujus Regni Angliae in eodem Parliamento per Summonition ipsius Dom. Regis ad tunc ibid. Assemblat Quodque impetitio praed in plenis suis robore effectu adhuc remanet sicut per Record inde in Cur. Parliament praed remanen plenius liquet apparet Et idem Edwardus Fitz-Harris ulterius dicit quod si quis in aliquo Parliamento Dom Regis hujus Regni Angliae de aliquibus Proditionibus Criminibus Offensis per Milites Cives Burgens ad hujusmodi Parliament convocat assemblat in hujusmodi Parliament accusat impetit suit coram Magnatibus Proceribus hujus Regni Angliae in eodem Parliament per Summonit ipsius Dom. Regis assemblat tune hujusmodi Prodition crimina offensa de pro quibus hujusmodi persona in hujusmodi Parliament accusat impetit suit in Parliament Dom Reg hujus Regni Angliae Audiri Triari Terminari deleant semper hactenus consueverunt de jure debuerunt non alibi in aliqua Curia Infer quam in Parliament Et hoc idem Edwardus Fitz-harris
parat est verificare unde non intendit quod Dominus Rex nunc velit in Cur. nunc hic de pro Prodition Criminibus Offens praed responderi petit Judic si ipse ad Indictament praed per Jurator praed in forma praed compert ulterius respondere compelâ—i debeat c. Cum hoc quod praed Edwardus Fitz-harris verificare vult quod Proditio Crimina Offens praed in Indictament praed per Jurator praed in forma praed compert specificat mentionat pro quibus ipse idem Edwardus Fitz-harris per Indictament ill modo indictat existit Proditio Crimina offens pro quibus ipse praed Edwardus Fitz-harris in Parliament praed in forma praed accusat impetit fuit existit sunt unum eadem proditio crimina offens non al. neque diversa quodque impetio praed adhuc in plenis suis robore vigore effectu remanet L. C. J. Look you Mr. Fitz-Harris As for this Pleading here We use not to receive such Pleading as this without a Counsel's Hand to it Mr. Fitz-Harris I desire your Lordship to assign me Councel L. C. Justice Who would you have assigned Councel Mr. Fitz-Harris Sir Will. Jones Sir Francis Winnington Sir George Treby Mr. Williams Mr. Pollexfen Mr. Wallop and Mr. Smith L. C. Justice Here are a great many you name we will not enjoyn any Counsel to serve you further than they are willing themselves As for Sir William Jones one of them you desire he does not practise now in Westminster-Hall and therefore we cannot Assign you him unless he please Mr. Fitz-Harris Then I desire Sir Francis Winnington Mr. Williams Mr. Pollexsen Mr. Wallop L. C. Justice Let them be Assign'd of Council for him We do Assign you them for Council And now Look you Sir You had best consider how you Plead this matter You will do well to think of it lest it be more fatal to you than you expect Therefore we will give you time to Plead the matter you rest upon let it be what it will Wee ll give you time to have advice upon it and you shall be brought hither again on Tuesday-morning by Rule And in the mean time things shall stand as they do Mr. Attorney will consider upon the putting in of your Plea what is fit to be done upon it Mr. Fitz-Harris My Lord I humbly desire the Liberty to see my Wife and Friends in the mean time L. C. Justice Mr. Attorney Why may not he see his Wife so it be done in the presence of some person entrusted by the Lieutenant to see that nothing be done that is prejudicial to the King Mr. Att. General I cannot oppose it my Lord. Mr. Fitz-Harris I desire my Counsel may come to me L. C. J. Mr. Fitz-Harris We will admit Counsel to come to you or else it will do you no good to asign them All we can do shall be done Mr. Att. General My Lord with submission I conceive you will not allow any body to come to him to be alone with him that would be the way to prevent the discovery of the practises he is accused of I hope if your Lordship shew him favour you will do the King Justice Mr. Fitz-Harris My Lord I beg that any of those that have been named may come to me L. C. J. Yes these four And Mr. Attorney they are Gentlemen of fair Credit and Reputation in the world we have no Suspition that they will do any thing unfairly what we can reasonably do for any man in his Condition we must do Mr. Att. General My Lord I am not against that but I would have all done safely and securely for the King Mr. Fitz-Harris My Lord I have one thing more to beg the time your Lordships have set is so soon that they cannot come to me perhaps L. C. J. 'T is long enough Mr Fitz-Harris Mr. Fitz-Harris If I cannot get them to come to me in that time what shall I do L. C. J. You must do what you can we can't enjoyn them to come to you Mr. Att. General This Motion of his I fear is designed to put off his Tryal L. C. J. It shall not Mr. Attorney It is true 't is a busy time the middle of the Term but they will sure find time to dispatch this business within the time we have allotted On the otherside some time they must have to consider of it I do therefore tell him it may be fatal and Peremptory to him for ought I konw Indeed if we would insist upon it we might compel him to be ready presently but that we will not do in this Case Mr. Fitz-Harris Pray my Lord give me till Thursday if you please L. C. J. I know it is time enough for Counsel to draw up a Plea between this and Tuesday Mr. Fitz-Harris To morrow is Sunday my Lord and they can't come to me then so I shall have but one day L. C. J. Mr. Fitz-Harris 'T is time enough we must not waste the Term For as we would shew you all the favour we can in Equity and Justice so we must not deny the King Justice neither And you hear Mr Attorney say that these things if they should delay the business too long would be prejudicial to much of the King's business It may be that this Delatory Plea may spend so much time of the Term that we cannot try it and therefore if we do give you a just Favour you must not grow upon us Mr. Att. General Mr. Fitz-Harris knows this Plea hath been well advised on There went a whole Club to the making of it Mr. Fitz-Harris How should I know I never saw nor heard of it till now I have had the severest measure in the world I have had no body suffered to come to me L. C. J. Do not complain of Severity Mr. Fitz-Harris I do not believe any such thing hath been used towards you Mr. Fitz-Harris Pray my Lord give me a little longer time L. C. J. Mr. Attorney what if we do this He giving you the Plea upon Tuesday he may come up upon Wednesday-Morning to put it in Mr. Att. General I cannot oppose it if your Lordship think fit so to order it Mr. Just Dolben 'T is fit you should have it to see it Mr. Attorney beforehand Mr. Justice Jones And have some reasonable Time for Consideration what to do upon it L. C. J. Well Delivering of the Plea on Tuesday-Morning to Mr. Attorney we do give you till Wednesday to bring it hither and then you shall come by Rule again Mr. Fitz-Harris My Lord I hope I shall have the Liberty to see my Wife this Day L. C. J. Yes at seasonable Hours when there may be some body by to see that nothing be done to the Kings prejudice And your Wife must do this she must submit to be searched that she carry nothing with her that may be prejudicial And with these
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
he would stand by it And we are not to consult your leasure but your Clients Cause he hath pitch'd upon you for his Counsel We have given him three days time to Plead as he will stand by it Saturday Munday and Tuesday and he is to come with his Plea upon Wednesday We have appointed for Conveniency sake that you should give a Copy of the Plea to Morrow Morning to Mr. Attorney But we do not tye you so peremptorily to that Copy that you may not vary in Words from that Form Give him but the substance of the Plea and we will not tye you to the particular Formal Words Peradventure Mr. Fitz-Harris could not have expected three days time in course of Law upon such a Crime to put in such a Plea when he tells us He will plead specially to the Jurisdiction of the Court But we have done it in this Case to shew that all the fairness that can possibly be used shall be used On the other side we must not spend all our time so as to let the Term slip for his neglect of waiting upon you Therefore if he will delay to send to advise with you he must suffer for it Suppose he did not come to you till to Morrow what can we help it Mrs. Fitz-Harris There is no Solicitor my Lord to go to the Counsel L. C. J. Well we must not spin out the Term to please him He must take more care I beleive he would by Delatorys be glad to put it off all the Term. If Mr. Attorney gives Consent for more time well and good Mrs. Fitz-Harris I hope your Lordship will give leave for a Solicitor without your Lordships leave none will dare to venture And I had the Rule so very late Cler. of the Crown They had it at 3 of the Clock in the Afternoon assoon as it could be drawn up Mrs. Fitz-Harris That Copy was brought to the Licut of the Tower and he sent it away immediately Cler. of the Crown Another Copy they had from me that Evening Mrs. Fitz-Harris I never saw my Husband in the Tower till Yesterday in the Afternoon and I am an Ignorant Person and know not what to do in it without a Sollicitor Assoon as I could get Copies of the Rule writ out I carryed them to these Gentlemen Mr. Pollexfen My Lord I think it will be very hard upon us that are of Counsel to be so straightned in point of Time for my part the Rule was left under my Door the last Night and I had it not till this Morning It will be a mighty hard matter for us to get the Plea ready without a sight of the Indictment Things must be averr'd to be the same which we cannot unless we see what is there alleadged This man hath been kept close Prisoner and nobody suffered to come at him to instruct him and we have not so much as Copies of any thing that we must make use of We have no concernment my Lord in this matter but what is assigned us by the Court and we do not know by any Papers if there be any how we should put it into Form and that is it my Lord which may lye heavy upon us If this man's business should miscarry for want of putting it into due Form the blame will be upon us who are assigned his Counsel Therefore if your Lordship please under these Considerations to give us Time and Leave to see the Indictment we are to Plead to we may be the better inabled to do our Duty Sir Fran. Winnington Really my Lord I ought to deal clearly with the Court without a Copy of the Indictment I know not how we shall be able to Plead as we should do Mr. Williams My Lord I do really move not in favour of Fitz-Harris but for my own Reputation I cannot put my hand to a Plea of this Consequence without time to consider very well of it and unless in truth I can see the Indictment and compare the Plea with it to put it into Form fit for the judgment of the Court. And if these things cannot be granted I desire to be excused L. C. J. Why Gentlemen See what you ask Where do you find any President of a man Indicted for High-Treason that would Plead to the Jurisdiction of the Court that had more time given him than is in this Case Sir Fran. Winnington We do not know what his Plea will be my Lord till we have seen it and considered it L. C. J. Your Clyent told us all and we know all of us very well That it is to the Jurisdiction of the Court and can be no otherwise Mr. Justice Jones Any thing else you may give in Evidence upon Not Guilty And it would be considered on your Tryal Sr. Fran. Winnington My Lord it may happen to be not so properly pleadable to the Jurisdiction of the Court We know not what it will be till we have seen the things necessary to draw it into Form It is true consequentially it is the Concern of our Clyent but the ground of our Motion at this time is for our selves I did apprehend by the Rule his Special Plea was to be admitted if he tendered one let it be what it will We must consider many things in a Case of this Nature And at last whether it will be to the Jurisdiction or what 't is we can't tell as yet And till we have seen the Nature of the thing and what is necessary to prepare it for the Court I cannot venture to give it its proper Term. But our time is so short if your Lordship will afford us no longer that we know not how to be ready for it Your Lordship does speak of Mr. Attorney's being attended with the Substance of the Plea not tying us to the Form in the Copy delivered to him Mr. Attorney was here upon Saturday when this matter was first started and he knew the Substance then We know not what it is more than by Report It is a Plea that so rarely happens that we must be cautious in what Form we put it T is as your Lordship hath been pleased to say an horrible Treason that in the Indictment is specifyed We must not speak nor do not mitigate the hainousness of the Crime nor do we speak it because it is Term-time and may hinder our other business We shall all of us I am sure not at all consider our own time or loss in the matter but it being of so great weight we desire reasonable time to do our duties we name no time nor dare do it we submit that to the Court But My Lord under favour for the Copy of the Indictment we do conceive 't is necessary that we should see a Copy of it and when the Court is pleased to admit the party to give in a Special Plea to the matter he is accused of and assign him Counsel to Plead it I take it to be very rational and consonant to
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
but differ extreamly I would then offer you some reasons why this Court ought not to proceed upon this Indictment I take it it does not become the Justice of this Court to weaken the Methods of proceedings in Parliament as this Court will certainly do For if you will admit this to be the course that I have open'd your proceedings will alter it When there is an Impeachment depending in Parliament for Treason if your Lordships will admit there may be an Indictment here afterwards in this Court and proceedings in this Court upon that Indictment 't is to alter the Method of Parliament proceedings and to subject the Method of their proceedings there to the proceedings of this Court. And what the Mischief of that will be I must leave to your Lordship As I open'd it before the Methods of both Courts are different and their proceedings very much vary I think I need not trouble your Lordship with that We all know it very well in the main Indictments in this Court are to be tryed by a Jury where a Verdict must be given presently There is but very little time for giving the Evidence or for making Observations for the Crown or for the publick and in order to bring it to the Tryal there must be an immediate Plea of Guilty or Not Guilty Now if the proceedings of Parliament were so sudden there might be a great surprize and great offenders pass unpunished because the Prosecutors had not greater time to inspect the Records that might be of avail in the Case Therefore in Parliament 't is quite otherwise there is time for Deliberation and Consideration there are many references and many Examinations which are matters of Deliberation and Consideration which take up a great deal of time But here you are straitned not only in time but bound up to strict Rules and so are straitned in your Methods and forms of proceedings as Mr. Attorney would here tye us up to the forms of little Courts but it is not fit that the Justice of the Kingdom and the high Court of Parliament should be crampt by the Methods of an Inferior Court and a Jury So you will then subject the Methods of proceedings in Parliament to the Courts in Westminster-Hall and what the Consequence of that will be is worth the consideration Another reason I would humbly offer is this My Lord the Parliament is the Supream Court certainly and this Court is every way inferior to it and it will be very strange that that Supream Court should be hindred by an inferior For the Highest Court is always supposed to be the wisest the Commons of England in Parliament are supposed to be a greater and a wiser body than a Grand Jury of any one County The Peers who are the Judges in that Court are supposed to be the wisest Judges as the Commons the wisest Inquest Will the Law of England now suffer an Examination Impeachment and Prosecution for Treason to be taken out of the hands of the greatest and wisest Inquest in England And will the Law of England suffer the Judicature upon this Prosecution to be taken out of the hands of the wisest and greatest Judicature and put it into the power of a smaller Number of Judges or of an inferior Jury I do think it does not stand My Lord with the wisdom of the Law or of the Constitution of the Government Another thing is this My Lord the common argument in any extraordinary Case there is no Precedent for this way of proceeding 't is my Lord Cokes argument in his Comment upon Littleton fol. 108. and in the 4th Inst fol. 17. in his Comment upon the High Court of Parliament And he takes occasion to speak it upon the account of that Precedent the Case of the Indictment against the Bishop of Winchester and of that against Mr. Plowden and he says this wus never practised before Therefore it ought not to be so he infers and puts a black mark upon it by saying 't is a dangerous attempt for inferiour Courts to alter or meddle with the Law of Parliaments for the words I refer my self to the Book I dare not venture to repeat them upon my memory So in this case in regard that it never was done from the beginning of the world till now the 33 year of this King I may say it being without Precedent there is no Law for it My Lord there is another mischief that will certainly follow upon this and that too runs upon the Comparison of an Appeal and of an Indictment In the Case of an Indictment 't is in the power of the Prince to pardon that Indictment to pardon the punishment and to pardon the offence but in the Case of an Impeachment I take it to be otherwise as 't is in the Case of an Appeal And My Lord if your Lordship will take this Case out of the power of the Parliament and bring it into this Court where the offence may be pardoned You do by that means subject that offence and that method of proceedings which would make it without consent of the party prosecuting not pardonable by Law to a Pardon and this may be of dangerous consequence to the publick that crimes that are heinous and great in themselves mighty bulky crimes fit for the consideration of a Parliament be they never so great never so dangerous to the Government yet should by giving this Court a jurisdiction and possessing it of these causes expose them to the will of the Prince and so those crimes which are impardonable by methods of proceedings in Parliament would become pardonable by prosecution in this Court Now My Lord for my Authority that Impeachments are not pardonable I would only hint a little to compare it to the Case of an Appeal as Peuryn and Corbett's Case in 3 Croke Hill 38 Eliz. fol. 464. There was an Appeal of Murder upon which he is found Guilty of Man-slaughter and Not Guilty of the Murder Then there was a Pardon pleaded of the burning in the hand or of the punishment it is not plain in the Book whether the Pardon was after the Verdict or before that I can't be clear in but however there was a question whether the Queen could pardon the burning in the hand however it was there allowed but there was an exception My Lord Coke who was then Attorney General took that the King could not pardon if it had been an Appeal of homicide and he concurr'd with the Court in that opinion but that Appeal being for Murder and the Verdict of Man-slaughter they passed over the question for this reason that I have mentioned That the appeal was not for Man-slaughter it was for Murder and if he had been found guilty of the Murder it was not in the power of the King to pardon him it being at the suit of the party So the opinion of that Book is and of the then Attorney General Thus I have stated the thing and the consequences of
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
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
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
Parliament was Pleaded and the day of the Parliament mistaken there was a general Demurrer and it was resolved that it was naught and Judgment given against the Bishop though no Exception was taken in particular because the days of the beginning and ending Parliaments are of publick Notice and the Judges take notice when a Parliament is in being and when not That 's a sufficient Answer to that matter Then for those many Cautions that have been given you what a difficult thing it is for two Jurisdictions to interfeir Mr. Fitz Harris is much concerned in that matter who hath forfeited his Life to the Law as a most notorious Offendor that certainly deserves nothing but punishment yet he would fain live a little longer and is much concerned that the Judicature of Parliament should be preserved If it be not Law he shall not be oppressed in it but if it be Law fiat Justitia Certainly no Consideration whatsoever ought to put Courts of Justice out of their steady Course but they ought to proceed according to the Laws of the Land My Lord I observe 't is an unusual Plea and perhaps they had some reason to put it so It concludes si curia procedere vult I wonder they did not put in aut debeat that is the usual form of such Pleas for you have no Will but the Law and if you cannot give Judgment you ought not to be pressed in it but it being according to Law that great Offendors and Malefactors should be brought to Condign punishment we must press it whatsoever the Consequences are And if we did not take it to be the Interest of all the Kingdom and of the Commons too as well as of the King my Lord I should not press it but it is all their Interest that so notorious a Malefactor that hath certainly been Guilty of Treason in the highest Degree and that for the utmost Advancement of the late Popish Plot should not escape or the truth be stifled but brought into Examination in the face of the Sun that all men may see what a Villanous thing hath been Attempted to raise up the whole Kingdom against the King but they say if it be not Law you will not proceed it Ties your hands But with Submission they have not given you one Instance to make good what they say Many things have been that a Plea pending in a Superiour Court is Pleadable to the Jurisdiction of an Inferior Court for my Lord that is it we put upon them to shew if it had been Pleaded in Abatement it would have had its weight and been considered of as in Sparry's Case where it was no Plea to the Jurisdiction Put the Case it had been a good Impeachment and he had been Arraigned upon it and acquitted If he had afterwards come to be Indicted in this Court and the Prisoner will not plead this in Bar but to the Jurisdiction of the Court it would not have been a good Plea But he had lost his Advantage by mispleading If then an Arraignment and an acquittal or Conviction thereupon not a good Plea to the Jurisdiction then certainly an Impeachment depending singly cannot be a good Plea to the Jurisdiction This Court hath a full Jurisdiction of this Case and of this Person both of the Crime and of the party who is a Commoner and not only to find the Indictment but to proceed to Justice and this you had at the time of the fact Committed For certainly we need not put Cases for to prove that the King's Bench especially since the Statute for trying Treason beyond the Seas hath an universal Jurisdiction of all Persons and Offences Pray then what is it that must out this Court of their Jurisdiction For all the Cases that have been or can be put about matters which are not originally examinable in this Court make not to the matter in Question there 't is true the Court may be by Plea outed of its Jurisdiction as at Common Law where a fact is done super altum mare and so Pleaded that puts it out of the Courts Jurisdiction and that was my Lord Hollis and Sir J. Eliots Case and so that was my Lord Shaftsbury's Case too the fact was done out of their Jurisdiction and that may be Pleaded to the Jurisdiction because they had no Original Jurisdiction of the fact but where the Crime and the Person were absolutly within the Jurisdiction of the Court and the Court may Originally take Cognizance of it as this Court had of the present Case I would fain know what can out that Jurisdiction less than an Act of Parliament I will be bold to say the King by his Great-seal cannot do it nor can an Act of either House or both Houses together without the King out the Jurisdiction To say their proceedings ought to be a Bar that is an other Case the party hath his Advantage and may plead it in abatement or Bar as the Case requires for if there had been an Acquittal or Conviction the party could not plead it to the Jurisdiction Therefore for those Cases they put when you come to examine the reason of them you see how they stand viz. that the Court had no Original Jurisdiction My Lord Shaftsbury was committed by the Lords for a Crime in that House a Contempt to that House he is brought here and it appears to be a Commitment in Execution My Lord that was out of your Jurisdiction and if you had bailed him what would you have done would you have bailed him to be tryed here No you could not do it and therefore you proceeded not in that Case And so in the other Cases for there is not one of their Cases that have been cited of the other side but where it was out of the Jurisdiction of the Court originally and not at all within it As for the Case of the five Lords in the Tower because they say it will have a mighty influence upon them and they put the Case That there was in December an Indictment and afterwards an Impeachment from the Commons and they cite some Opinion given at the Council-board which I hope these Gentlemen will not say was a Judicial Opinion or any way affects this Cause But for that my Lord I observe the Lords took care that these Indictments should be all removed into the Lords House so they did foresee that the King might have proceeded upon the Indictments if they had not been removed thither But our Case now is quite another thing for those Lords were not fully within your Jurisdiction You cannot try a Peer of the Realm for Treason and besides the Lords have pleaded in full Parliament where by the Law of Parliament all the Peers are to be their Judges and so you can't out them of that Right And the reason is plain because thereby you must do them an apparent prejudice they having pleaded there all the whole Peerage are their Tryers But upon Tryal before
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