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
Cautions we will admit her to come to you Lient of the Tower Will your Lordship please to give us a Rule to let his Wife and Conusel come to him L. C. J. We do make such a Rule Cler. of the Crown My Lord we will make it part of the Rule Lieut. of the Tower We desire such a Rule for our discharge L. C. J. Sir This is our Rule and we have declared it to this purpose Then as to your matter Brother Stringer this we will do Let the Lieutenant of the Tower keep Mr. Fitz-Harris safely till we return out of the Exchequer and then we will examine him Mr. Serj. Stringer My Lord We think it will be a short business and soon over if you please to do it first Mr. Fitz-Harris My Lord I may see my Wife in the mean time I hope L. C. J. Do you insist Brother that we should examine him presently Mr. Serj. Stringer My Lord Mr. Godfrey desires it L. C. J. Then we will presently Lieut. of the Tower Must his Lady speak with him L. C. J. Yes after he is Examined Lieutenant of the Tower bring Mr. Fitz-Harris into our little Room where we will take a Clerk and examine him Mrs. Fitz-Harris To her Husdand the Court being just risen My Dear Do not Confess any thing about the Death of Sir Edmund-bury Godfry nor the Plot for you will be betray'd Speak only to little things Then the Prisoner was carried away to be Examined and after that to the Tower On Munday the Second of May Sir Francis Winnington and the other three Gentlemen assigned of Councel for Mr. Fitz-Harris came to the Bar and Moved the Court for an Explanation of the Rule concerning themselves and the Business they were assigned for Mr. Williams My Lord I am to move your Lordship in a Case wherein I am with three others of the Gentlemen that attend this Bar assigned of Counsel for Mr. Fitz-Harris and that which I would beg for my self and them is this There is one thing we desire may be explained a little in the Rule I humbly apprehend your Lordship gave leave to the Counsel who you so assigned to come to Mr. Fitz-Harris and entrusted them with the Liberty of speaking with him alone but by the penning of the Rule we apprehend that the same Restraint is put upon them that is upon other persons to have some body at their being with him L. C. J. The Lieutenant sent to me on Saturday about it and I told him it did not extend to you Sir Fran. Winnington We think it may have a Construction either way but we desire it may be made plain as you meant it L. C. J. We tell you It is plain and it was so intended Sir Fran. Winnington Therefore we taking it that your Lordship pronounced and meant it so do desire it may be so expressed We are satisfied that it was your Lordships intention we desire the Clerk may make it plain and intelligible in words And there is this further in it My Lord L. C. J. We declare it now to you it was so meant and intended Sir Fran. Winnington My Lord There is this further in it We four have met and we desire as much as may be to expedite this matter as far as we can for our own Reputation and doing our Duty to the person we are assigned of Counsel for But truely so soon as is appointed by your Lordship it is impossible for us to prepare things so as to be ready by Wednesday-Morning The Plea I never saw nor did I ever hear of it till it was brought and read here but since that I have not seen it till this time The Rules were brought but last Night to our Chambers there is no Soliicitor in the Cause that may attend us The Indictment I have not seen that we are to Plead to and truely I think the Course is to have a Copy of the Indictment L. C. J. We deny that Sir Fran. Winnington Mr. Williams It is impossible for us then to get ready in this time I humbly Move you will Assign some convenient time I know your Lordship will not put an hardship upon us that are of Counsel to plead such a matter so quickly T is a matter of difficulty and there are not many Presidents in it And therefore it will require more care than ordinary Sir Fran. Winnington My Lord We ought to present things to the Court as they are in Fact that we may not lye under any reflection from the Court nor any body else You made a Rule on Saturday that I should be of Council for him which I submit to but I knew not of this till afterwards I never saw the Plea nor any Paper in this Cause as yet The Rule was left at my Chamber this last Night and when I saw it Mr. Williams and we got together in the Hall this Morning We could not do it till just now and we come now to wait upon the Court to acquaint them how the matter stands I was not in Court when you gave your Directions about this matter but when I finde what the Nature of the Case is I shall be ready to do my Duty to the Court and to him who is upon his Life It is a mighty Cause it is a Cause that may-be if we do not acquit our selves as we ought have reflection upon our Posterity if we do not do it as well as we can Therefore we desire some reasonable Time that we may have Copies of the Papers and things concerned in this Cause as the Court shall direct And we are assured your Lordship is so well acquainted with the usual Method in such Cases that you will give us all the favour in it you can Mr. Wallop For my part My Lord the Notice I had was but very lately I was by indeed when this person Fitz-Harris did desire Connsel and your Lordship assigned me amongst the rest but nothing of the Order was brought to me till this Morning So that I know nothing of the matter less or more than what I heard upon the reading of the Paper here on Saturday I do not desire Time for Time-sake or for Delay but we think the nature of the thing is such as will aequire great Consideration and we desire convenient Time to prepare it for the Court. L. C. J. Look you Sir Francis Winnington You must consider here the Nature of your Case This is an Indictment of High-Treason and there is nothing I see that is so greatly considerable in the Case but the heighth of the Crime T is an extraordinary Crime indeed if he be Guilty of it for I speak not to prejudice your Client but of the thing it self 'T is a Treason of a very high Nature And then what have we to consider in this Case We might have taken your Client at advantage here and it had been no Injustice if we had made him to plead immediately as
it and it is not fit for me to dwell upon it You will consider of it I am sure Another thing I would say is this if your Lordship should meddle with this way of proceeding it will invert the Law in another thing for 't is a principle with us That no mans life is to be put twice in danger for one and the same thing I will then put the Case thus If your Lordship should proceed upon this Indictment and this person should be acquitted upon it I am in your Lordships judgement whether that acquittal will bind the Lords in Parliament if that will not bind them but they may still proceed on the Impeachment then you invade that common right which every English-man by the Law ought to have preserved to him that no person ought twice to be brought in question for one and the same thing And so My Lord you make a man to run the risque of his life twice by Indicting him in this Court where though he be acquitted he may be called to an account again if the Law be so And if the Lords in Parliament should be of opinion for they are the Judges of that Case that the acquittal will not be binding to them then a mans life is brought in question twice upon the same account My Lord I now come to this the Time how unseasonable a thing it is and how dangerous to the Government I take it to be a critical thing now at this time to make such attempts as these are There are Lords now that lye under Impeachments of Treason the highest Treason I think that ever was contrived and upon this Impeachment one Lord hath been convicted and executed Suppose upon the dissolution of that Parliament that impeached the late Lord Stafford there had been an Indictment against him for one and the same Treason and by the same reason that this Court may proceed his Majesty may appoint a High Steward to try by a Jury of Peers For the Court held before the High Steward is as much a Court as any Court of the Kingdome except that of Parliament I say suppose the King had appointed an High Steward and that Lord High Steward had proceeded against my Lord Stafford I think my Lord Stafford had been alive at this day For in the case of Treason your Lordship knows there must be two Witnesses and I am sure there came in fresh Testimony against my L. Stafford after the second Parliament after the Impeachment I appeal to those Noble Lords that are here if it were not so and had it not been for that fresh Testimony that came in afterwards possibly my Lord Stafford might have been alive at this time And the Lords in Parliament as I observed in the beginning when they find an high crime before them when they find such a general contagious design to subvert the Government and yet they cannot come to cut off the principal agents in this design because perhaps there may not be two Witnesses in strictness of the Law at the first 't is the wisdome of a Parliament to deliberate and to take time The good Queen who was used to say Truth was the daughter of Time and Time would produce Truth Veritas filia temporis If then there had been any any such hasty proceedings as in this Case I doubt my Lord Stafford had been now alive Now then for these Lords that are now in the Tower if your Lordships do go on in this way do you not open such a gap as may be a ground to deliver them by the same Justice I speak it under correction here and I only offer it to your judgement for I have not had many hours to consider of it but your Lordship will think well of it before you give any Judgement by the same Justice the other Lords may be tryed by another Court This I offer in point of reason that this proceeding will be very hard and is an imprudent thing if not an illegal proceeding My Lord I am sure it will have this effect it will stir up a question between the jurisdiction of this Court and the Court of Parliament For in all probability if this person should be acquitted the Commons and the Lords too will look into it They are a Court that make a survey of the proceedings of all other Courts and they will examine this proceeding or at least may do And if he be found Guilty here is the power of the Commons in Impeaching and the Jurisdiction of the Lords in Tryal and Judgement taken away by an Inferiour Court to them and so stir a question between this Court and that highest of Courts the Parliament And what will be the consequence of that the judgement of that question will be in the Superiour Court for there is no middle Court between this Court and the Parliament to judge of it Therefore I submit it to your Lordships These are the things which I offer to your Lordship in point of reason whereof some go to the prudence of the thing some to the reason and some to the ill consequences that may happen upon it and I think many to the illegality of the act And now this being said in the general I come to the particular exceptions made by Mr. Attorney as to the form of our Plea He was pleased to say That this Plea was a plain frivolous Plea which is his exception in general and he gave you three reasons for it at first and does now insist upon the same for substance One was this and he insisted upon it at this time This Plea does not set forth any Record of an Impeachment nor the particular matter of it so as this Court may judge of the reason of it and he compares it to the Case of a Plea of auter foitz acquit If a man hath been Indicted and acquitted he may plead it in another Court that hath Jurisdiction of the cause if he be again Indicted for the same matter but My Lord first of all I take this Plea to be well pleaded in form and in the second place if there be any informality or defect which I do not take it that there is but if there were any such thing I take it 't is of another consideration which the Court will deliberate before they give their Judgement on But I say in the first place I take it to be a very good Plea and that it is good according to the pleading of auter foitz acquit In pleading of a general Act of Parliament we need not set forth the whole Act but referr to the Record and that will depend upon the Method of Impeachments in Parliament which I am of opinion being the General Law of Parliaments this Court ought to take Cognizance of In the Case of auter foitz acquit there is first an Indictment proceeding of the Court upon the Plea a fair Tryal and a fair acquital and a Record of all this matter If now
Grammar an Adjective for a Substantive but I take it to be as well as any man can plead in this Case For what says the Prisoner The Knights Citizens and Burgesses in Parliament assembled did Impeach me which Impeachment is still in force before the Lords I take it to be as plain as can be If they did impeach me then there was an Impeachment it can bear no other sence My Lord another Exception and which was thought a strong one the other day and strongly urged is that the King may chuse his Court and they compared it with the other Courts but there is the mistake that runs all along in this Case 'T is no doubt the King may chose his Court for his own action and suit but the Impeachment is an Impeachment of the Commons and their suit is to be tryed no where else but in Parliament And the Case that was the other day cited by Mr. Attorney for this purpose is true of the person that was arraigned for Treason and had been Indicted and arraigned in Ireland and he may be arraigned and tryed here there is no Question of it but to say therefore that this is a Consequence from that Rule that therefore he will chuse whether he will proceed in Parliament upon the Commons Impeachment and put a stop to the proceeding of the Parliament by proceeding in this Court I take to be a great Non sequitur My Lord I have offered these Reasons as to the form of the Plea to maintain it Now as to the Precedents I would a little speak what hath been done in the like Case where this Court hath taken hold of Causes and the prosecution of the Court hath been stop'd by Pleas to the Jurisdiction and what hath been done upon those Pleas What doom they have had I will hint some of them to you There was a Case mentioned by your Lordship the other day the Bishop of Winchesters Case 3 Edw. 3. I dare not say that I have looked upon the Parliament Roll but my Lord Coke tells us he hath recited the Record de verbo in verbum in the 2. Institutes fol 15. there are all the proceedings it was not an Indictment for my Lord Coke contradicts that and says it was a declaration there the Record at large sets forth that the Bishop of Winchester was attached to answer the King for that whereas at a Parliament held at Sarum it was ordained per ipsum Regem ne quis ad dom Parliament summonitus ab eodem recederet sine licentia Regis And that this Bishop in contempt of the King recessit without leave of the King I think 't is rather an action than a Criminal proceeding what says the Bishop to this He comes and says si quis deliquerit erga Dominum Regem in Parliamento aliquo in Parliamento debet corrigi emendari non alibi in minore Curia quam in Parliamento c. What becomes of this Plea 't is strange there should be such an Inhibition that no man should depart without leave of the King and the Bishop be punished for it we do not find any Judgement was given nor would they venture to do it My Lord Coke hath a mark upon it for this very reason it looked as if there was a design to weaken the Parliaments by bringing their proceedings into Westminster-hall but they would not do it they would give no judgment for the King but for ought appears the Plea stood Then there is the other Case of Mr. Plowden and many more in primo secundo Phil. and Mar. where a great many of them some whereof were Burgesses and they submitted but he did not The Information there is this that these persons were summoned to the Parliament and departed from thence without the leave of the King and Queen though it was prohibited by them that any should depart most of them submit to a Fine and if it had rested there it might have turned to the prejudice of the Commons as an example But Mr. Plowden he pleads as one that understood himself and the power of Parliaments and their proceedings very well and considers the time to have pleaded in says he continued in the Parliament from the beginning to the end of the Parliament but he relies not there but he brings a traverse full of pregnancy and if our Plea be faulty theirs was 100 times as faulty Absque hoc that he the said Edmond Plowden the said day and year during the said Parliament without License of the said King and Queen and the Court aforesaid did contemtuously depart in Contempt of the said King and Queen and their Commandment and inhibition and to the great detriment of the Common-Weal and State of this Kingdom c. All these things he pleads which your Lordship knows to be a very ill traverse and yet this Case continued all the time of that Queen and the Court would never give judgement in it This was in primo secundo and yet it appearing upon the face of the Information that it was a Case that concerned the Commons the Court would not give judgement for or against the Commons as long as the King and Queen lived There is a later Case and that is Elliots Case 5 Car. there is an Information against My Lord Hollis Sir John Elliot and many more and there is a Plea put in to the Jurisdiction of the Court I have a Copy of My Lord Hollis's Plea and 't is in a manner as faulty as Plowdens Plea but the Court in that Case does go not upon the insufficiency of the Plea but gives judgement generally that this Court had a Jurisdiction the assault happen'd in Parliament and the words were spoken there and upon the Demurrer they gave judgment upon the whole matter what became of that judgement We know very well it was reversed 19 of this King And pray observe the proceedings in the reversal of that judgment Judgment wâ—s given against My Lord Hollis and the rest of the Gentlemen of the House of Commons though there was no prospect of a Parliament yet they were obstinate and would not plead for they thought the judgment to be a very hard judgment and this being a Plea in abatement judgment was given for want of a Plea over It may fall out in this Case that this person may be obstinate and not plead over if you should give your judgment against this Plea In Elliots Case they were fined severly and they continued under this judgment in Prison and in execution for the Fine a great while and they were delivered by what I cannot indeed justifie in all its proceedings I mean the long Parliament but what was done in 19 of this King I think is good authority which none can say but was a Parliament as useful to the King and Kingdom as ever could be In that Parliament the Commons examined this judgment I speak because I have it in my printed Book t
a way of proof which well stands with the rules of Law which upon the general or other collateral Issue may well be inquired of by the Jury As in an action quare canem inordacem defendens scienter retinuit Here Soienter is not directly issuable but it is proveable and must be proved upon the general Issue So in the present case the intention of the Commons upon the Issue offered by us and refused by the Attorney General might and ought and would have been proved and without doubt found by the Jury Neither is this general Impeachment such a notional thing as the other side would pretend but 't is as if they should say We do charge him to have Committed certain Crimes that are Treason Now whether the Crimes they say he had committed and for which they Impeached him are the same with those for which he is Indicted is a good and proper Issue And if it appear to the Court to be the same you will certainly your selves take off your hands from these proceedings This is all I shall say as to the Averrment And if we can well get over that I take it all the rest is well enough But again they say the Impeachment is too general and no man shall be put to answer to such a general Accusation And I say so too neither shall Fitz Harris be put to Answer to it without special Articles yet he cannot quash the Impeachment for this Cause as he might an Indictment which shews the difference betwixt an Impeachment and an Indictment which always contains the special matter and without which it might be quasht and made no Record But hereby the Law of Parliament such general Impeachments are held good And Articles are usually brought in afterwards and after those additional Articles which cannot be in the course and way of Indictment and therefore we must take the Impeachment as we find it and since it stands against us as a Record though this general we may and must Plead it in the same generallity having no way to make it no Record as we have in case of such a general Indictment So then this being an Impeachment according to the Course of Parliament it is well lodged in the House of Lords where it only ought to be Tryed and we must Plead it as we may and as we find the Case to be And having averred the Crimes to be the same we have done what we could and therefore Enough And that a general Impeachment without Articles is a Bar to any Indictment for the same matter was resolved by all the Judges as I am informed in the Case of the Lords in the Tower who were all Indicted for Treason either in the Kings Bench or before Commissioners of Oyer and Terminer And afterwards 5. Dec. 78. generally Impeached before the Lords in Parliament and no Articles exhibited till 3. April 79. And yet in the mean time it was resolved at the Council Table by all the Judges there attending that after the general Impeachment before Articles they could not be proceeded against upon those Indictments though the Parliament wherein they were Impeached was dissolved And that was a stronger Case than this of Fitz Harris For there the Inferiour Court was first possessed of the Cause and yet the general Impeachment closed up the hands of the Court But in this Case the Superiour Court the Parliament was first possest of the Cause which cannot be taken out of their hands by the Inferiour Court There is a farther difference betwixt an Impeachment in Parliament and an Indictment That in an Indictment which is always as particular as Articles upon an Impeachment you cannot Plead auter foitz Arraigned but you must Plead either auter foitz Convict or Acquit as appears in Sir William Wishipoles Case Cron. 1. 105. But in an Impeachment in Parliament the other side will acknowledge that after Articles exhibited there can be no Proceedings upon an Indictment for the same offence although the Defendant in the Impeachment be neither Convict or Acquit Otherwise you may bring back all the Lords in the Tower to the Kings Bench to be Tryed which Mr. Attorney will not I suppose Attempt And it is observable in the Case of Sir William Wishipole That to avoid the doubt that the Party there should not be questioned both upon the Coroners Inquest and the Indictment of Murther it was Ruled by the Court that the first should be quasht as insufficient so careful were the Judges to avoid double vexation in a Case compared with this of no great import I shall say no more to the Case but only observe how scrupulous the Judges have been to touch upon a Case where they had the least suspicion or jealousie that the Parliament had or pretended to have a Jurisdiction or were possessed of the Cause I am sure I could never get any thing by any Labours of mine in those Cases But upon all such Motions they were so aware of what might be the Consequence that they would always worship afar off and would never come near the Mount They would ever retire when they came but near the Brink of this Gulf. Now my Lord If you retain this Cause in consequence you Charge your selves with the blood of this man wherein if you proceed regularly and according to Law all is well But however by over ruling his Plea you take upon you his blood one way or other Through which you must wade to come at the Cause And whether it be adviseable to come at it upon these terms I leave it to your Lordships wisdom to consider Mr. Pollexfen My Lord I shall not make any long Argument there hath been so much said before me But I would fain come to the Question if I could for I must confess afterall I cannot see what the other side make the Question Mr. Attorney was pleased to say that both for the matter and form he objected against our Plea But if for the matter it be admitted to me that an Impeachment in Parliament for the same matter will out this Court of Jurisdiction I will say nothing at all of it for I apprehend that is not then in Question Ld. Ch. Just No not at all Mr. Pollexfen Then the matter seems to be agreed and only the manner and form of the Plea are now in Question And for the manner they except to it in these particulars First they say 't is not alledged that there is any Impeachment upon Record now I confess form is a subtile matter in it self and it is easy for any man that reads other mens words and Writings if he will to make what Construction he will of them even Nolumus to be Volumus but I know the Court will not so do But for an Answer to the Objection I think it is as strongly and closely penned as I can tell how to pen any thing he was Impeached Quae quidem Impetitio c. What can that Quae quidem signifie
but the Impeachment that was just mentioned before But what they mean by this to say this is not the same Impeachment when the Words are positive that 't is the same I must confess I cannot Fathom My Lord there was another thing spoken the last day but they have not mentioned it now if there be any thing stirred in it I hope your Lordship will be pleased to hear us before you give your Judgment in it That it was not said to be sub pede sigilâ—i but I know they won't insist upon it therefore I say nothing to that But the great Question now is whether or no this be not too general the alledging that he was Impeached in Parliament and not saying how or for what Crime tho there be an Averment afterwards that 't is for the said Crime Whether this be not so general as that therefore this Plea should be naught First for this of the Averment I take it with submission let the Crimes be never so particularly specified in the Record that is pleaded and in that upon which the party is brought in Judicature yet always there must be an Averment and that Averment is so much the substantial part of the Plea That let the matter never somuch appear to be the same without an Averment it would be naught And it must come to be tryed per paâ—â— whether the offence be the same or not for if a man plead one Indictment for the murder of I. S. to another Indictment for the murder of I. S. tho' they bear the same Name he must Aver they are one and the same Person For else Non constat to the Court but there may be two I. S. Therefore all Averments are still the substance of the Plea to bring the Identity of the matter into Judgment and are to be tryed by the Country so then the Objection to the Generality is not an Objection to the substance but rather an Objection to the form on their side Because the substance is alledged in the Plea that it is for the same Treason which substance if Mr. Attorney had thought not fit to have demurred to but taken Issue on must have been tryed per pais Having thus spoken to the Averment My Lord Let me speak to the general Allegation that he was Impeached for Treason and not saying particularly what the fact was My Lord If they admit the Law that an Impeachment in Parliament does suspend or take away the Jurisdiction of this Court then they have admitted a great part of the fact and then the matter in Question will be what Impeachment in Parliament it is that will take away the Jurisdiction of the Court and there can be but two sorts the one at large where the whole Offence is specified the other not at large but only in general Words the Knights Citizens and Burgesses in Parliament Assembled in the Name of themselves and of all the Commons of England do Impeach such an one of High Treason Now my Lord if so be such Impeachment in Parliament be a good Impeachment then have We I think the most plain Case pleaded that can be as plain as the Fact that this is an Impeachment in Parliament and then this Court is outed of its Jurisdiction They that have gone before have said which I must pray your Lordship to remember That the Court and we are to take notice of the proceedings in other Courts as other Courts are bound to take notice of the proceedings of this Then I would suppose in other familiar Cases there is generally as 't is true in Sparry's Case the Writ or the Declaration which does in all civil Causes set forth the particularity of the thing in Question yet in some Cases we are sure it does not do so but the Course and practice of some Courts admits general proceedings Now where-ever that is so the party cannot mend himself by making their Course otherwise than it is For he must not say it is more particular than the Course of the Courrt does make it Therefore he hath no other way by the Law to bring his matter on and help himself but by an Averment that 't is the same I will suppose a Case of such a Nature as this a man brings an Account in London upon Concessit Solvere and he does not particularize in the Count any thing what or how his Debt did arise But after he brings another Account or delivery aspecial Declaration in an Account of Debt shall not I because the first Declaration is in general Words Aver that this is the same matter that he sued for by the Concessit Solvere which he now sues for in this particular Declaration Or suppose a man in this Court does bring an Account for divers wares and Merchandises sold and does not express any particulars but that he was indebted in general Words for Wares sold and afterwards he comes and brings another Account and says it is for such and such Wares so much for Cloth so much for Wine c. tho' his first Declaration be in general not expressing what the Wares were and the last is particular shall not I come and plead in Abatement to the second Declaration that the first and second were for one and the same thing Suppose again an Indictment of Barrelry be found against a man which is an Offence that is only general and hath no particulars alledged in the Indictment Should not a man that is the second time Indicted come and say this is one and the same My Lord under favour in all these and such like Cases the Law must be Govern'd by its own proceedings and take notice of the Nature of the things depending before the Court. And if so be upon Consideration of the Nature of the thing there is as much of certainty set forth as the Case will admit and is possible to be had we must permit the party to plead as he can and help himself by the Averment Then my Lord the Question is whether an Impeachment generally in Parliament without particularly setting forth for what be a good Impeachment there or no. If they say it is not then the bottom of the Plea is naught and all is quite gone but if they say it is then I have Pleaded my matter as it is For I cannot say that that is particular or make that particular that is not and I have done all that is possible for me to do in my Case I have Pleaded what is in the Record and as 't is in the Record from which my Plea must not vary and I have Averred 'tis for the same matter and you have Confessed it by the Demurrer My Lord I would not intangle the Question but I must Confess I do not see how they can extricate themselves out of this Dilemma if they do admit a General Impeachment is a good Impeachment Then there are fresh Instances of this considerable in the Case as that which hath been particularized
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