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
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
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
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
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
Now since then there is but one single point the Jurisdiction of the Court and nothing else for they are not to advise in other matters I think it was more than strict Justice nay it was a very great Favour for all men ought to be ready to plead such Pleas immediately L. C. J. Yes in strictness we might have required him to Plead as he would stand by it presently Mr. Att. General The Law is that he must have all ready in Poigne to make it appear that what he avers in his Plea is so Therefore you needed not to have given him any longer Time But because all the World might see the Court and King's Counsel dealt fairly in this matter and did not mean to take advantage of any thing that lookt like a Surprize I consented to that time that your Lordship was pleased to set And as for the Copy of the Indictment I know not any reason they have to desire it for they are not to advise in that what Defence he shall make but only upon this matter he hath alledged L. C. J. Look you Gentlemen what Mr. Attorney tells you is so and we do expect that you should conform your selves to it We have given you three Days time which is sufficient for such a thing as this And Mr. Attorney we told them thus When we did direct them that they should deliver you a Copy of the Plea to Morrow-morning We are not so critical with them as that we will not receive their Plea if it be variant in Form from that which they deliver to you That that we intend by it is this That they should deliver you a Plea the same in substance as that which they do plead here If they would alter it in the Form we can give them leave to do that without any prejudice Mr. Att. Gen. We will never pinch them in form I think I have matter enough L. C. J. I tell you truly I do believe some Friends of his had counsel to draw up this Plea for him Mr. Att. Gen. A great Cabal no doubt of it my Lord Mr. Wallop My Lord I desire that Councel may be assigned in my place L. C. J. We assigned him those that he required excepting Sir William Jones and we did not deny to put in Sir William Jones his Name because we would not assigne him but because he hath declined the Bar and does not practice here Mr. Williams We do not draw in the Name of Sir William Jones or decline him we submit to your order about our selves but we desire that person that did draw this Plea may be added to us L. C. J. If his Wife desire it and will name him it shall be so Mr. Williams I desire to be put out and he put in L. C. J. Sir he understands what he would have sure and we can't discharge you upon any such account Mr. Wallop Here are many Particulars and many Averments which cannot so suddenly be set right as the time alotted Mrs. Fitzharris My Lord there is not half those Gentlemen assigned that I writ to my Husband to ask for I directed him Eight L. C. J. Who else would you have Mrs. Fitzharris There was in the Paper Sir William Jones his Majesties late Attorney-General Sir Francis Winnington Mr. Williams late Speaker of the House of Commons Sir George Treby Recorder of London Mr. Pollexfen Your Lordship may easily perceive by this Gentlewoman's carriage how we are like to be instructed in this Cause when nobody follows it but she L. C. J. Do you desire Sir George Treby should be added Mrs. Fitzharris Yes I do L. C. J. Let it be so then Mrs. Fitzharris And Sir William Jones I will do what I can to get him to come L. C. J. We will not injoyn him but if he pleases we leave him to his liberty Mr. Just Dolben Why Mistriss you are got into the hands of Gentlemen that are as learned and able in their Profession as you can have you need no more L. C. J. Do you desire Mr. Smith Mrs. Fitzharris Yes my Lord. L. C. J. Then adde him Mr. Pollexfen We desire that there may be leave for a Sollicitor one that may carry Papers in the presence of the Lieutenant L. C. J. We have confidence in you but not in other persons therefore we must consider of that But what think you of it Brothers We may permit I think one to come from the Counsel to him with that Caution Judges Yes my Lord. L. C. J. Let the Papers then be inspected before by the Lieutenant of the Tower and be from one of the Counsel and so they have liberty to do it Mr. Att. Gen. There is no need of any Papers my Lord L. C. J. Mr. Attorney do not oppose that Let them have liberty to carry any Papers that any of their Counsel these Gentlemen we have assigned shall send to him or any from him to them so as the Lieutenant may have first the sight and perusal of them Mr. Att. Gen. There is no great harm in that though I see not that they will need any Papers L. C. J. Yes their Plea to the Jurisdiction must arise upon Fact which may be out of some Papers Mr. Att. Gen. You are assigned Gentlemen but to one point the Jurisdiction of the Court remember that Mr. Pollexfen Your Lordship is pleased to say That we may vary in form from what we delivered to the Attorney General and Mr. Attorney is pleased to say He will not pinch us as to form How shall we be secure no advantage shall be taken of the form L. C. J. 'T is onely as to that particular You shall not be tyed up to the form you deliver to him What advantages there may be concerning the form of the Plea you bring hither we will see shall not be taken Sir Fr. Win. Will you Lordship please to afford us no longer time L. C. J. When you are to plead to the Jurisdiction of the Court in a Case of High-Treason and such a Treason as this is what reason is there that so much time as is granted already should be given you Sir Fr. Win. Shall not we have a Copy of the Indictment neither L. C. J. You will offer things that are not to to be granted to you ad captandum populum that you may say you are hardly used and mightily straightned in this Case Sir Fr. Win. No my Lord we do not offer it for any such end Mr. Att. Gen. Gentlemen remember you have not liberty to plead any thing but to the Jurisdiction of the Court. Sir Fr. Win. We must submit to what your Lordship orders in it Vpon Wednesday the 4th of May 1681. Edward Fitzharris was brought from the Tower to the Kings-bench-bar Cl. of Crown Edward Fitzharris hold up thy hand which he did Thou hast been indicted and arraigned for High-Treason How sayst thou art thou guilty of the High-Treason whereof thou standest