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
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
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
is in Croke Car. I confess 't is not in the first Impression but it is in the 2. Edition that I have and these are the expressions in it Lord Chief Justice What Case is that Mr. Williams 'T is in Croke Car. but the Reversal was in 19 of this King Lord Chief Justice Was the judgment given do you say 19. of this King Can a Case of that time be reported in Croke Mr. Williams I don't say so absurd a thing If your Lordship will have patience to hear me I 'le tell you what I say My Book which is the 2. Impression of Croke reflecting upon that Case in 5 Caroli does publish the Votes of the House of Commons about it and the Reversal of the judgment in the 19. of this King There the proceeding is this Information is given to the House of Commons that there was such a Case published which did Derogate much from the priviledge of Parliament invading the Liberty of speech and the House of Commons considering the Consequence ordered the book to be sent for and read and taken into Consideration and debated and upon Debate the House came to this resolution That the judgment against Elliott and others is an illegal judgment and against the freedom and Liberty of speech and this Vote they send up to the Lords where 't is confirmed and resolved in agreement with the Vote of the Commons And by the way in Answer to a Paper that is commonly spread about by the name of the Observator I say the Commons come to a Resolution and pass a Vote which is not indeed a Law and when they have done that they may transmit their opinions to the Lords and desire them to concur then the Lords and Commons have a Conference upon it and at the Conference the Commons reasons are delivered which the Lords take up with them to their House and debate them Then they come to a Resolution to agree with the Commons Afterwards upon this Resolution of both Houses they go regularly to work by Writ of Error to reverse the judgement And if it should fall out in this Case that your Lordship should give judgment against the Plea and this person should be obstinate and not plead over and thereupon your Lordship give judgment of death upon him it may come to be a very hard Case if a Writ of Error should be brought in Parliament to reverse this judgment and it should be reversed when the party is dead Therefore it will be of great Consequence in that particular My Lord I 'le mind you of one old Case it was 20 of Ri. 2. a person there presents a Petition to the Commons in Parliament and it seems there was something suggested in the Petition which did amount to High Treason as there may be some Petition or some Complaint against a great Minister that may contain an Insinuation as it were of High Treason he was indicted out of Parliament for High Treason and was found Guilty and by the grace of the Prince he was pardoned but because the Commons would not lye under that Precedent of an Invasion of their Priviledge though he was a person without doors that prepared the Petition and no more hurt done to him but the prosecution he being pardoned the judgment was voided Lord Chief Justice Where is that Authority Mr. Williams 20. Ri. 2. Ro. Parl. 12. And you will find it in the Argument of Selden's Case published in Rushworth's Collections fol. 47. and 48. And now My Lord I have done with the substance of the Case with my reasons for the matter and for the form In this Case here is the Life of a person before you here is the right of the Commons to Impeach in Parliament before you here is the Judicature of the Lords to determine that Impeachment before you here is the Method and proceedings of Parliament before you and how far you will lay your hands upon this Case thus circumstantiated we must submit to you but I hope you will proceed no further on the Indictment Lord Ch. Just Pray Gentlemen let us a little direct you not to spend our time about that which is not to the purpose or that is not in the Case here is nothing of the Commons Right to Impeach in Parliament before us nor of the Lords Jurisdiction nor the Methods of Parliament in this Case they are things quite foreign to the Case and the matter in hand which is whether this Plea as thus pleaded be sufficient to protect the Prisoner from being questioned in this Court for the Treasonable matter in this Indictment before us Therefore you ought not to spend time in things that are not before us to be considered being out of the Case For we have nothing to do with any Priviledge of Parliament or of either of the Houses here at this time Mr. Justice Jones And Gentlemen there is nothing at all here of any fact done in Parliament that can be insisted on here nor is there any Complaint against Mr. Fitz Harris for any thing he hath done in Parliament All Mr Williams Precedents run to that but this is for a thing done without doors Lord Chief Justice We speak to you to come to the point which is the duty of all Courts to keep Counsel to the points before them The Sole matter before us is whether this be a good Plea to Ouste this Court of a Jurisdiction which otherwise unquestionably we have of this matter Mr. Williams 'T is a hard matter for the Barr to answer the Bench My Lord. Sr. Fra. Wnning My Lord I shall pursue your direction as well as my understanding will give me leave and save your time as much as I can but the Court having assigned us of Counsel you will give us leave to use our discretion keeping as near as we can to the points of the Case and to the Pleading But if upon the reasoning of this Case other Parliament Cases fall in I hope you will give me leave to cite them for maintaining our Plea The Plea here is to the Jurisdiction and consists of two parts first matter of Record which is that an Impeachment is depending in the House of Lords for so it must be taken upon the pleading as I shall manifestly prove the second is matter in pais viz. the Averment that the Impeachment and Indictment are for one and the same Treason and the Plea is made up of these 2 parts together with an Averment that the person is the same The Kings Attorney hath been pleased to Demur generally to us and I am sure that if our Plea be well and formally pleaded all the matter of fact is confessed by the Demurrer Mr. Attorney did to my apprehension make but one Objection the other day and he still insists upon it That here is a Record too generally pleaded and they compare it to the common Case of an auter foitz acquit upon another Indictment but I hope to make it
that we have not set forth actually that there was any Impeachment I do confess I was a little startled at it for the words of the Plea are that Edward Fitz-Harris by the Knights Citizens and Burgesses was Impeached which Impeachment is in force I do not know how in the world we could have thought of more express words than to say he was Impeached and that that Impeachment is in full force as appears by the Record For the other Objection the other day for we would mention all how little soever they deserve an answer that the King may chuse in what Court he will sue it is agreed when it is at his own suit but this is not so but at the Commons suit and can be no where else prosecuted than where it now depends This is the Method and Course of Parliaments we say and that the Method and Course of Parliaments is the Law of the Land your Lordship will take notice that it is so To conclude as this Plea now stands the Demurrer confessing the matter of it it cannot be over-ruled without deciding whether the Lords can proceed upon such General Impeachments and whether the Commons can Impeach in such a General way We submit the whole to your judgment it is a Case deserves great Consideration as being of great weight and Moment and highly concerns the Jurisdiction of the Lords the Priviledges of the Commons and the Rights of all the people of England Mr. Wallop May it please your Lordship There are in this Plea three Principal Parts upon which it turns which are expresly alledged First That Fitz-Harris before the Indictment was according to the Law and Custom of Parliament impeached of High Treason and this I humbly conceive is confessed by Mr. Attorney upon the Demurrer The Second thing is That this Impeachment be it as it will general or particular does remain in full force and vertue This is plainly alledged and demurred to and so confessed by Mr. Attorney for all things well alledged and pleaded are confessed by the Demurrer The Third great Point and Hinge upon which it turns is this That the High Treason mentioned in the Indictment and the High Treason for which he was Impeached in the House of Lords is one and the same Treason This we have plainly averred and this Mr. Attorney hath likewise by his Demurrer plainly confessed as we humbly conceive For the two former Points there is no difficulty in them and therefore I shall pass them over 'T is this third matter which I take to be the only point in the Case and if we have well averred it and can by Law be let into such an Averrment then I hope your Lordship and this Court will not pretend to go on in this Case They Object and say because he is Impeached of High Treason generally without naming any particular Treason that cannot be averred to be the same and a Demurrer does never confess the truth of that which by Law cannot be said but if it may be said and is said plainly then the Demurrer confesses it My Lord I humbly conceive this matter is well averrable and we have taken a good Averrment I grant that a repugnant and an impossible Averrment cannot be taken as to averr a Horse to be a Sheep which is apparently repugnant and impossible and in that Case a Demurrer can never confess the truth of that which appears impossible to be true But My Lord if there be no Impossibility nor Repugnancy nor Contradiction in the Averrment between the matters that are averred to be the same as there is not between that which is but generally expressed and that which is more specially alledged where all may well stand together and the one includes the other and needs only some farther explanation it is not only allowable to avert it but most proper and in such case only necessary For quod constat claâ—â—â—â—â—â— debet verisicari in this Case it is not necessary that it should appear to the Court upon the view of the Indictment and Impeachment that the matter contained in both is the same but it is sufficient that it be proveable upon an Issue to be taken And so much is admitted by the Judges in Sparries Case Co. 5. rep 51. that if there be convenient certainty which may be put in Issue it is sufficient and consequently not necessary to appear at the first but upon the event of the issue afterwards to be tryed And if they intend it otherwise I confess I understand them not It is true it must appear to the Court either at the first opening or upon an Issue subsequent to be found And My Lord if this matter may appear at first or at last and the thing is possible to be proved then we are well enough In Corbet and Barnes Case in the first Croke fol. 320. a Battery supposed to be in London and a Battery supposed to be in Herefordshire were averred to be one and the same Battery which naturally is impossible yet being transitory and therefore supposable to be done in any County such an averrment is allowable though it seemed contradictory and could not appear to the Court by comparing the several declarations to be any way the same And there being a Demurrer for that Cause in that Case the truth of the averrment was ruled to be confessed by the Demurrer And so hereby the Demurrer the truth of the suggestion that the Treason in the Impeachment and the Treason in the Indictment is one and the same is confessed By taking this Averrment we offer them here a fair Issue an Issue of Fact tryable by a Jury wherein the Attorney General might have joined with us if he had pleased but refusing that and having demurred and thereby confessed what we have alledged it must be taken to be true as if found by a Jury And My Lord That this matter is properly averrable and tryable I think 't is plain it being a Question of Fact which is properly triable by the Countrey and if they had taken Issue upon that we might have gone to a Jury where the matter would have been easily proved For upon Evidence given the Jury might fairly take into consideration the reading of this very numerical Libel set forth in the Indictment and the particular and special debates of the House of Commons thereupon And that upon those very Debates the House voted that Fitz-Harris should be Impeached for matters contained in that Libel And that upon those Votes the Impeachment was carried up to the Lords This is Evidence sufficient that the House of Commons did intend to accuse him of the same Treason contained in the Indictment which proves the Issue that is that the Treason contained in the Impeachment is the same with that contained in the Indictment neither is this to put the Intention of the mind or secret thoughts of the heart in Issue which is against the rules of Law but to put them into