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
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
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
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
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
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
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
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
they would have demurred but now 't is come to that we must make the best of it We have pleaded this Plea if you will not be pleased to give us leave and time to be prepared to argue it you must take it as we are able since we can't have time to make our selves able L. Ch. J. Certainly Mr. Pollexfen in favorem Vitae it would not hurt the Plea to plead over Mr. Attor Gen. My Lord If your Lordship please to favour me a Word in this Case I hear several things urged particularly instancing in modern Practice If that Gentlemen will shew that in any Case the King and the Court were so Indulgent to give four days to plead to the Jurisdiction of the Court then he will shew me some thing of modern Practice which I know not but if that Gentlemen will remember modern Practice in a great Nobleman's Case for whom he was of Counsel it was told him If he would debate the Point of Law he must do it presently They never would give him time to prepare for his Argument there was no such modern Practice then I would desire him to give me one Instance that when Gentlemen are assigned of Counsel to plead a Matter to the Jurisdiction and deal so with the King's Counsel as they have dealt with us not to let us see the Plea till now the modern Practice hath been to give them any time For them to say that they could not foresee what we would be at Could they not foresee the Points of Law Could they not foresee a plain Case But they do not take off the great Matter that he that doth plead to the Jurisdiction ought to have the Record ready in his Hand but my Lord we lay our Thumb upon that which is our Exception they have pleaded no Impeachment of any Crime that can appear to be the same with that for which they are indicted that is the Point Is there such difficulty did not these learned Gentlemen think Could they not foresee that we should look into their Plea that it should be legal therefore I did and do pray your Judgment If they had pleaded and set forth the Record truly as it is and as it ought to be set forth in case they would have any benefit by it we would have given them another Answer but if it be done purposely as it is done with Artifice I am bold to say for these Gentlemen know how to plead a Record as it ought to be and how this ought to be pleaded to â—o out the Court of a Jurisdiction of a particular Crime they say the Life of a Man is concerned and so is the Peace of the Kingdom concerned too in the Life of as great a Traitor as ever was tried in Westminster Hall For if his Treason had taken effect certainly the Kingdom had been very near embroyled in civil Wars by this time Therefore the whole Peace of the Kingdom depends upon his Life and it depends upon the clearing of the whole Matter And I challenge them again if they can shew me any Instance of the like Nature That of Elliot's Case that was mentioned it was an Information and to Pleas upon Informations there have been Demurrers but to Indictments found by twelve Men we do not meet with any Demurrer any where to a Plea to the Jurisdiction But I pray your Judgment that he may plead in Chief for 't is but a Respondes ouster and if these Gentlemen desire to take time I hope you will not delay the King by giving Countenance to such a plain imperfect Plea and for those high Matters they talk of that will be the Consequence they can never come in question upon this Plea Mr. Sol. Gen. My Lord I have but one short word to that which is now in question Our Exceptions to the Plea we offered and opened before the Question is now whether they shall have time to argue this Plea And the Arguments they use for longer time is the Life of a Man and they could not be prepared on a sudden because they knew not what we would do For the hasty proceedings that have been in this Case which they clamor of I think they have little reason to speak so since that hath been done in this Case that never was done in any other He hath had three days time to consider whether he will plead to the Jurisdiction of the Court which never was done to any and so great a Favour that he is scarce entituled to any farther Favour Does any Man believe that they are not prepared Do not Gentlemen when they consider of a Plea consider upon what Grounds they Plead And does not that let them into the whole Matter where the weak parts of the Plea are and what may be objected against it I am sure that these Gentlemen are of that Consideration that no Man does believe they would put in this or any Plea without having considered before-hand what to do And then when they have put in a Plea upon great Consideration no Man is to think that they are unready to maintain it Our Exception is short and they do but talk in general Terms that they are unprepared and they have no reason to expect this Kindness from the Court especially since they used Mr. Attorney at this rate they gave him not the Plea but only a Note to tell him they would do that which they said four days before and no more if they had done regularly they should have brought Mr. Attorney the Plea and left a Copy with him and desired him to consider of it But we do not pretend we are surprized for all this Usage we see the Plea here and we see the Faults of it and we have demurred to it and tell them our Exception sure they are better prepared than 't is possible for the King to be yet we are ready and we hope you will grant them no longer time Mr. Serj. Jefferies Will your Lordship be pleased to spare me one Word I wonder at what Mr. Wallop seems now to urge concerning the Life of a Man that is concerned in this Case 't is true the Life of a Man is concerned which is a dear thing to the Law but certainly the Life of the Government is more dear to the Government and all Courts of Justice than the Life of any one single Person And I am sure this one Person hath done as much as in him lies to strike at the Life of the Government in case this be true that is laid to his Charge Now to make this Case like to Plunket's the other day is strange I think your Lordship hath given an account of that For hath he pleaded to the Fact Not Guilty as Plunket did We that are of the King's Counsel would in common Charity hope that he is not Guilty but I am sure if he be Guilty no English Man can think that he deserves to live why then should we be so
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
evidently appear That it is in no sort a parallel Case The matter which I conceive is confessed by the Demurrer is that there is an Impeachment by the Commons of England of High Treason against Fitz. Harris lodged in the House of Lords secundum Legem consuetudinem Parliamenti And that the Treason for which he was Impeached is the same Treason contained in the Indictment to the which the Prisoner hath now pleaded Upon this matter of fact so agreed the general Question is Whether an Impeachment for Treason by the House of Commons and still depending be a sufficient matter to oust the Court from proceeding upon an Indictment for the same Offence My Method will be shortly to speak to these things Lord Chief Justice Pray let us give you some direction that is not the question nor can come in Question in the Case you mistake the points of the Case Sir Fran. Winning Why My Lord Lord Chief Justice The Question is whether you have pleaded sufficient matter here to out us of our Jurisdiction It is to no purpose to put Questions in the Case that are not in it Sir Fran. Winning My Lord I know the Case is very nice and tender on all sides and therefore may very well bear an interruption however I express'd my self my meaning is the same with your Lordships The Method that I shall proceed in will be this I will suppose the Case before you had been of an Impeachment containing the special Treason for which he is now Indicted I will shew in the next place that as it is now pleaded 't is as available as if the Impeachment in the House of Lords had mentioned the particular Treason I shall then give some reasons why it is so and mention one or two Precedents that have not yet been cited Two of the Kings Council did agree that they would not make a doubt of the Plea if there had been a particular Impeachment and therefore I would by considering what would be the reason of that Case apply it particularly to the present Case The House of Lords is a Superior Court to this And is agreed to be the Highest Court of Record in the Kingdom Plowden 389. Co. Litt. 109 110. 9. Co. in Prâ—…fat And then I am within the Common Rule of Pleading according to the differences taken in Sparries Case 5. Co. 61. and 62. That a suit first Commenced in an Inferior Court cannot stop a suit in a superior Court though subsequent but a suit in a Superiour Court may be pleaded to stop the procedings of one that is Infeor And though it may be objected here that the Parliament is determined and dissolved and so there would be a failure of Justice yet this Objection is of no force for if once the suit be well Commenced in the Superior Court it cannot after go down to the Inferior And what is begun in one Parliament may be determined in another so is the Case 4 Edward 3. n. 16. of the Lord Barkeley and those that were accused for the death of Edward the 2. And though it was objected there as hath been here that by this means there might be a stop of Justice by the Dissolution of the Parliament yet the short and the true answer is that it is in Law to be presumed Parliaments will be called frequently to consider of the business of the Kingdom and redress grievances according to the several Statutes made for that porpose 4. Ed. 3. cap. 14. 36 Ed. 3. cap. 10. I shall labour this no farther but taking it as the common Rule of pleading that a Record in a Superior Court may be pleaded to stop a proceeding in an Inferior I shall come to prove that this Record is well pleaded and could not be otherwise unless Mr. Attorney would have had us plead what is false this being the truth of the Case for the Commons did Impeach Mr. Fitz Harris generally of Treason as 't is the Course of Parliaments for them to do and in our very Plea we alledge that he was Impeached secundum legem consuetudinem Parliamenti and so Mr. Attorney hath confessed by the Demurrer and if they may prefer an Impeachment in general accord-to the Law and Custom of Parliament why then so far it must be allowed that we have pleaded well that he was Impeached of Treason It is very true My Lord If a man will plead generally that he was Indicted of High Treason this would be ill because the Court cannot take it otherwise than he has pleaded it and such a general Indictment would be altogether void and therefore no Averment could make it good or supply that generality and uncertainty But an Impeachment generally for Treason is good and warranted by the Law and course of Parliament and so confess'd by the Demurrer And so your Lordship will take it to be and will give Credit that all is regular in the proceedings of that High Court You will presume even in the Ecclesiastical Courts as My Lord Coke says in the 4th Report that all things are rightly done when they have a Jurisdiction à fortiori you will believe the greatest Court in the Kingdom does proceed regularly My Lord Coke in the 4th Inst fol. 14. and 15. does say what the Law and Course of Parliament is the Judges will never intermeddle with They always leave it to the Parliament who are the Superior Judges and are to determine the matters before them For they take notice that the Course of a Court is the Law of a Court as 't is in Lane's Case in the 2. Report in the Case of the Exchequer And therefore if a general Impeachment is secundum legem consuetudinem which is confessed by the Demurrer in this case then you must take it for granted that the Parliament proceed rightly and that such a general Impeachment is sufficient in Law There is a famous Case that strengthens what I say 11 Ri. 2 di Rot. Parl. par 2. the Case of the Lords Appellants You will find it also cited in Rushworths Col. part 1. in the Appendix fol. 51. Tresillian and others were appealed against for Treason and both the Judges of the Common and of the Civil Law were by direction of the King called to advise of that matter And they did all declare that the proceedings in that Case were neither agreeable to Common Law nor Civil Law But the Lords in Parlialiament said it did not belong to the Judges of the Common Law or Civil Law to guide them but that they ought to proceed according to the Course and Law of Parliaments which are the words of our Plea and that therefore no opinion of theirs should out them of their Jurisdiction or alter the Course and Method of proceedings My Lord this Case is very remarkable but I will go a little further the Judges in all Ages have been so far from taking upon them to judge of the Laws and Customs of Parliament that
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
with submission insufficient too For though he does aver that the Treason in the Indictment and the Treason for which he was impeached are one and the same and not divers Affirmatively and Negatively yet as this Case is he ought to have said that the Treason for which he is indicted and the Treason mentioned in the Impeachment is one and the same For if he was impeached generally for High-Treason without mention of particulars it is impossible to be reduced to a certainty So 't is an Averment of a Fact not capable to be tried First because with submission to these Gentlemen that have said it the Debates of the House of Commons are not to be given in Evidence and made publick to a Jury nay they are not always possible to be reduced to a certainty as the circumstances may be for they do not always particularly resolve upon what particulars they will accuse before they go up but a general Allegation serves the turn So that such Averment is not triable per Pais because as the Case may be it may not be capable of any certainty from the Debates of the House of Commons Another reason is because by this way of pleading Proceedings may be staid for Treason though subsequent to the Impeachment which no man yet has pretended to say For suppose now a general Impeachment lodg'd and a Treason afterwards committed by the party I think no man will say that the House of Commons when they bring up their special matters cannot make even this subsequent Treason an Article upon that Impeachment neither can it be said that such Averment as this is upon such Plea pleaded to an Indictment here below would be repugnant because there is no time at all laid in the Impeachment as 't is here pleaded nor no time when the Impeachment was brought up so that it cannot appear to the Court whether the Treason in the Indictment be subsequent or not the consequence of which is we must try whether the House of Commons upon this general Impeachment did intend to proceed to try him for a fact committed after the Impeachment carried up My Lord this would be to affirm that a man once impeached in Parliament shall never be tried for any offence it would be like that Privilegium Clericale which they made use of to exempt themselves from punishment for all offences But my Lord we do think upon the whole matter without entring upon the Debate whether a particular Impeachment lodged in the House of Lords does preclude the King from his proceedings We have a good Case upon this Plea for that is not a Question necessary to be resolved though it be not granted by the King neither But the Question is whether this be a formal Plea and whether here be sufficient matter set forth upon a Record to bring that other matter into question and tie up the hands of the Court. Mr. Serj. Jeffreys My Lord there hath been already enough spoken in this Case I shall desire onely to offer one word to that single point viz. the informality of the Plea which I take to be the sole Question in this Case for to argue whether because there was no Bill pass'd or Decree made in the House of Lords though the Articles had been carried up the Impeachment did not fall to the ground by the Dissolution I conceive altogether improper for I think it does not affect the Question though I desire to take notice that Sir Fr. Win. Mr. Williams and Mr. Wallop were all mistaken for there were no such Concessions made by any of the Kings Counsel the other day as they alleadge because we did not think it to be the Question and therefore made no discourses about it But my Lord I desire first to take notice of a Case or two that hath been cited on the other side and then I shall apply my self to that which is the Question before you at this time They cite the Case of the Lords in the Tower as a Judgment for them which seems to be a Judgment against them for by the Lords granting a Certiorari to remove the Judgments into Parliament they seem to be of opinion that notwithstanding they were impeached before the Lords yet there might haue been proceedings below upon those Indictments had not they been removed and there they remain to this day nay further to those Impeachments they have pleaded to Issue which is ready for a Tryal But in the Case at Bar there onely is an Accusation without any further proceedings thereupon And as to the Case of my Lord Shaftsbury that makes strongly for us as I conceive Mr. Justice Jones's opinion was taken notice of by Sir Fran. Winnington that they would not meddle by any means with matters depending in Parliament But I must remember he then gave this reason for his opinion because the Parliament was then in being And I must humbly put your Lordship in mind that the whole Court did then declare That if the Parliament had been dissolved they would have said something more to that Case I do not say that they would have given such or such a Judgment but I attended at the Bar at that time and I appeal to the memory of the Court if the Court did not then make such a Declaration But now to the Question Without all peradventure the Cases cited by Mr. Pollexâ—en are true If I bring a general Indebitarus assumpsit for Wares sold and delivered and after bring a particular Indebitatus assumpsit for such and such Wares naming the particulars the party may come and plead in Bar and aver 't is for the same thing and 't is a good Averment because there is sufficient matter set forth in the Record to support such an Averment For the doubt is onely whether the particular Goods mentioned in the second be not the same that were intended under those general words Goods and Merchandizes in the first But suppose there had been onely an account brought and no declaration put in could then the Defendant have pleaded such a Plea with such an Averment when there was not sufficient matter of Record set forth in their pleading whereby the Court might be able to give a Judgment or put it into a way of Tryal whether it was for the same or not And is it not so in this Case there being but a bare Accusation For I still keep to the informality of the pleading and I take it not to be such a dangerous Case as these Gentlemen of the other side do pretend for you to determine it For I am sure it will be better for the Court to answer if ever they shall be required that they have performed their Duty and done Justice according to their Consciences and their Oaths than ever to be afraid of any Threats or Bugâ—â—â—s from the Bar. For would not they by this manner of pleading put upon your Lordships a difficulty to judge without any thing contained in