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A25691 An Account of the proceedings and arguments of the counsel on both sides concerning the plea of Mr. Fitz-Harris to his indictment of high treason, at the Kings-Bench-Bar, in Westminster-Hall, on Saturday May the 7th, 1681 1681 (1681) Wing A354; ESTC R15655 1,626 2

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An ACCOUNT OF THE PROCEEDINGS and ARGUMENTS of the Counsel on both Sides concerning the PLEA of Mr. Fitz-Harris To his INDICTMENT of High Treason At the Kings-Bench-Bar in Westminster-Hall on Saturday May the 7th 1681. THIS day Mr. Edward Fitz-Harris was again brought to the Kings-Bench Bar And it being a Remarkable Case there was a very numerous Auditory and divers Lords and Persons of Quality as the Duke of Monmouth the Earl of Shaftsbury Sir Robert Clayton Mr Sheriff Cornish c. The Court was set between 8 and 9 a Clock in the Morning and Mr. Attorney General maintained his Demurrer First Because They had made a General Plea Secondly There was no Record mentioned in the Impeachment Mr. Williams the late Speaker of the House of Commons being the first That argued the Prisoner's Plea made a very learned Discourse and cited many Precedents to confirm it That Substance whereof was to make out That the Attourney General and the KING's Counsel by their Demurrer did prove the Truth of Their Plea and That the Parliament had a Right to impeach any Commoner Asserting likewise the Dignity and Excellency of Parliaments and the Respect that in all Ages had been paid thereunto both as to the Jurisdiction of the Lords and likewise to the Rights and Priviledges of the Commons and that when at any time heretofore any such weighty Matters came before the Judges they wholy declin'd being concern'd therein or were at least very tender in their Determination sir Frank Winnington being next insisted upon the same Plea and confirmed it with Three Reasons I. That the Commons in PARLIAMENT were the Representatives of ALL the People of England and consequently All the People have a share in their Impeachment and therefore can neither be Judg nor Jury II. He compared the Impeachment to an Appeal and that it was to be heard before an Indictment for the King And That by the Third of Henry the VII in case of Murder The King could not proceed in an Indictment till a year and a day was allowed for an Appeal III. The Question is whether if Fitz-Harris be Tryed here and Acquitted that will be a sufficient Plea if the Lords call him to an Account for the same and that if they could it was contrary to our Law in regard it would put a man in jeopardy of his Life twice for the same Crime it being the Birth-right of an English-Man to answer but once for the same thing Mr. Wallop and Mr. Pollexfen backt it with Precedents As particularly in the Case of the Earl of Stafford and the rest of the Lords in the Tower who being Impeached in Parliament it was concluded by all the Judges in England That they could not be Tryed elsewhere And likewise in the Case of the Earl of Shattsbury who being committed Prisoner to the Tower by the Horse of Lords only for a misdemeanour yet it was resolved by the Court of Kings-Bench that they could take no Cognizance thereof Mr. Attorney pressed the insufficientcy of their Plea and that the Demurrer ought to be Granted adding That if it were contrary to Law God forbid it should be done and farther said That in his Judgment that Court had Power to Try him The Sollicitor General laboured to make it appear That a man might be Tryed twice for the same thing and that an Appeal and an Indictment might be within a year and a day Sir George Jefferies said That the Plea was desective in Matter and Form and that every man ought to search his own Conscience and not be Bugbear'd out of his Reason nor to decline doing Justice for fear of being called to an Account hereafter and prayed his Lordship that it might be over-ruled Sir Francis Within and Mr. Saunders spake also what they thought necessary to that point After which the Lord Chief Justice told them He had heard all their Arguments but thought it best to take a farther time to give in his Judgment and not to run precipitately into matters of that nature it being a Cause of great weight and variety of Presidents having been alledged on both sides and that it did therefore require deliberate Consideration to advise upon all that had been said before the Court gave their Opinion in the Case and hereupon the Judgment of the Court was deferred and no certain day assigned It is Discoursed that Mr. Fitz-Harris being withdrawn a motion was made that his Wife might have Liberty to go to see him as she had done lately but that it was objected she had abused her Liberty in that Case but the result thereof we know not FINIS LONDON Printed for T. Davies 1681.