the same entertainment which King Charles the second ever gave to the Councils offered to him in favour of the Protestant Religion and of the true English Government however the honest zeal and undaunted Courage of these Noble Lords made deep impressions upon the Breasts of all true Lovers of the Laws and Liberty of their Country And the Citizens of London in Common-Hall assembled upon the 4th of February 1680. spoke their Approbation of their Loraship's Noble Enterprize in what follows which was agreed upon with a general and loud Acclamation of thousands of Citizens To the Worshipful Slingesby Bethel and Henry Cornish Esquires Sheriffs of London and Middlesex WE the Citizens of the said City in Common-Hall assembled having diligently perused the late Petition and Advice of several Noble Peers of this Realm to his Majesty whose Counsels We humbly conceive are in this unhappy juncture highly seasonable and greatly tending to the safety of these Kingdoms We do therefore make it our most hearty request that you in the Name of this Common-Hall will return to the Right Honourable the Earl of Essex and by him to the rest of the Noble Peers the grateful Acknowledgment of this Assembly By these means and indeed by the whole Course of this Noble Lord's Life which was a steady Course of Exemplary unshaken Vertue and shew'd an unalterable affection to the true Religion and detestation of Tyranny He became insupportable to those whose Study was Mischief and to whom no Person was acceptable but such as they found disposed to betray the Protestant Religion and the Rights of England to their Popish and Despotick Designs and therefore from this time they grew more assiduous to contrive his Destruction The Conspirators well knew that this Great Man had most deservedly acquired a mighty share in the hearts of the People And that as he knew very much of their Designs so that he was not by any arts or allurements to be Cozen'd or tempted to a Complyance therewith therefore as They told the brave Colonel Sidney he must dye that their Plot might live and to avoid the Reproach of bringing the Son to the Block by that very Prince for whom the Father had lost his Head and which is also very probable to prevent his discovery of what he could tell and others knew not They condemn him without a Tryal and in a most barbarous manner Murder him in the Tower But Heaven intending to bring this accursed Assassination of the brave Earl of Essex to light a report of very suspitious Circumstances in relation to that matter was instantly spread and reached the Ears of Mr Braddon a Gentleman of great Integrity and of no less Courage whose honest Zeal prompted him to look into that hellish Intrigue and to endeavour a full discovery of that horrid Villany but that Season not allowing it he and Mr Speke were run upon and with great fury prosecuted in the manner following They were brought to Tryal upon an Information charging them with Subornation and endeavouring to raise a belief that the Earl of Ess did not murder himself The Judges then in Court were The Lord Chief Justice Jeffryes Judge Withens and Judge Holloway The Jury Sr Hugh Middleton a Papist Thomas Harriot Thomas Earsby Joshua Galliard Richard Shoreditch Charles Good Samuel Rouse Hugh Squire Nehem. Arnold John Byfeild William Waite James Supple The King's Council were Attorney General Sawyer Solicitor General Finch Jenner Recorder of London Mr Dolben Mr North Mr Jones Council for the Defendants were Mr Wallop Mr Williams Mr Thompson Mr Freke Mr Dolben opened the Information to this effect That whereas the Earl of Essex upon the 10th of July last was committed to the Tower for Treason and did there Murder himself as was found by the Coroner's Inquisition yet the Defendants designing to bring the Government to hatred the 15th of August conspired to perswade the King's Subjects that the said Earl was Muedered by certain Persons unknown and to procure false Witnesses to prove that he was not felo de se but was Murdereds and that they did malitiously declare in writing that Mr Braddon was the Person that did prosecute the said Murder to the scandal of the Government c. Then the Attorney General brought in Evidence Sr Leoline Jenkins his Warrant for the Commitment of the Earl to the Tower and the Inquisition of Mr Farnham the Coroner taken by this Jury July 14th 1683. viz. Samuel Colwel William Fisher Thomas Godsell Thomas Hunt Natha Mountney Thomas Potter William How Robert Burgoyne Eleazar Wickens Thomas Hogsflesh Henry Cripps Richard Rudder William Knipes John Hudson John Kettlebeater Lancelot Coleson Morgan Cowarne Thomas Bryan William Thackston Richard Cliffe Zebediah Prichard William Baford and Theophilus Carter Which Jury had found that the Earl of Essex was Felo de se Then the Witnesses for the King being called Mr Evans was sworn and the Attorney General suggested that he and old Mr Edwards would prove that Mr Braddon went about and declared that the Earl of Essex was Murdered and that he was the Prosecutor of the Murder but neither of them answered expectation in that matter Mr Evans testified that Mr Edwards told it to him and others for News at the Custom-House that fore-noon of the day of the Earl of Essex his death that his Son said that he saw a Razour thrown out of the Earl's Window That upon the Munday after which was July the 16th Mr Braddon came with Mr Hatsel to his House where Mr Hatsel shewed him the Coroner's Inquisition in Print which having read Mr Evans told Mr Hatsel what he had heard from Mr Edwards at the Custom-House And he said that Mr B. did not concern himself or say any thing though he might hear Mr Evans his discourse with Mr Hatsel he being walking about the Room Mr Evans added that upon the 17th of July Mr Edwards and Mr Braddon found him in a Coffee-House and Mr Edwards then told him that Mr Braddon had been with him examining his Son about a Razour that was thrown out of the Earl of Essex his Window Mr Edwards testified that about ten of the Clock the day of the Earl's death he was informed by his Family and by his Son that same day at noon that his Son came from the Tower about ten of the Clock and said that he had seen the King and Duke and that the Earl of Essex had cut his own Throat and that the Boy saw an hand throw a Razour out of the Window and a Maid in a white Hood came out of the House and took it up and then go in again and that he heard a noise as of Murder cryed out Mr Edwards acknowledged that he told several at the Custom-House the same day what the Lad had declared and that Mr Bradden came not to make enquiry about it till Tuesday the 17th of July before which time he never knew Mr Braddon that he then told him what report the
That if any Judge Justice or Jury proceed upon him and he found guilty that you will declare them guilty of his Murder and Betrayers of the Rights of the Commons of England Hereupon the House came to these Resolves That it is the undoubted right of the Commons in Parliament assembled to impeach before the Lords in Parliament any Peer or Commoner for Treason or any other Crime or Misdemeanour and that the Refusal of the Lords to proceed in Parliament upon such Impeachment is a denyal of Justice and a violation of the Constitution of Parliaments That in the Case of E. Fitz-Harris who by the Commons has been impeached for High Treason before the Lords with a Declaration That in convenient time they would bring up the Articles against him For the Lords to resolve that the said Fitz-Harris should be proceeded with according to the course of the Common-Law and not by way of Impeachment in Parliament is a denyal of Justice and a Violation of the Constitution of Parliaments and an Obstruction to the further discovery of the Popish Plot and of great danger to his Majesties Person and the Protestant Religion That for any Inferiour Court to proceed against him or any other Person lying under an Impeachment in Parliament for the same Crimes for which he or they stand impeached is an high breach of the Priviledge of Parliament This matter thus agitated in the House of Commons was countenanced by a Protestation of many Temporal Lords which was to this effect That in all Ages it had been an undoubted Right of the Commons to impeach before the Lords any Subject for Treasons or any other Crime whatsoever That they could not reject such Impeachments because that Suit or Complaint can be determined no where else for an Impeachment is at the Suit of the People but an Indictment is at the Suit of the King As the King may Indict at his Suit for Murther and the Heir or the Wife of the Party Murthered may bring an †Which was always to be preferred and upon notice thereof all Prosecutions at the Kings Suit were to stop till the Prosecution at the Suit of the Party was determined Appeal And the King cannot Release that Appeal nor his Indictment prevent the Proceedings in it It is an absolute denial of Justice in regard it cannot be tryed any where else The House of Peers as to Impeachments proceed by vertue of their Judicial Power and not by their Legislative and as to that act as a Court of Record and can deny Suitors especially the Commons of England that bring legal Complaint before them no more than the Judges of Westminster can deny any suite regularly commenced before them Our Law saith in the Person of the King Nulli negabimus Justitiam We will deny Justice to no single Person yet here Justice is denyed to the whole Body of the People This may be interpreted an exercise of Arbitrary Power and have an influence upon the Constitution of the English Government and be an encouragement to all Inferiour Courts to exercise the same Arbitrary Power by denying the Presentments of Grand-Juries c for which at this time the Chief Justice stands impeached in the House of Peers These Proceedings may mis-represent the House of Peers to the King and People especially at this time and the more in the particular Case of Edward Fitz-Harris who is publickly known to be concerned in vile and horrid Treasons against his Majesty and a great Conspirator in the Popish plot to Murther the King and destroy and subvert the Protestant Religion Monmouth Kent Huntington Bedford Salisbury Clare Stamford Sunderland Essex Shaftesbury Macclesfield Mordant Wharton Paget Grey of Werke Herbert of Cherbury Cornwallis Lovelace Crew This Protest was no sooner made upon Munday the 28th of March 1681 but the Parliament was instantly dissolved Well The Parliament being dismissed Fitz-Harris must be Hang'd out of the way and the Term approaching Scroggs the Chief Justice who lay under an Impeachment for Treason in Parliament is removed with marks of Favour and Respect being allowed a Pension for Life and his Son Knighted and made one of his Majesty's Learned Council and Sr Francis Pemberton being advanced to the Seat of Lord Chief Justice the Business of Fitz-Harris is brought before him and Justice Jones Justice Dolben and Justice Raymond and proceeded upon in the manner following UPon the 27th of April 1681 an Indictment for high Treason was offered to the Grand-Jury for the Hundreds of Edmonton and Gore in Middlesex against Fitz-Harris whereupon Mr Michael Godfrey the Foreman in the name of the Grand-Jury desired the opinion of the Court whether it were lawful and safe for them to proceed upon it in regard Fitz-Harris was Impeached in the late Parliament at Oxford by the House of Commons in the name of all the Commons of England Mr Attorney General then said That Mr Godfrey and two more were against accepting the Bill but the body of the Jury carryed it to hear the Evidence and that thereupon himself and Mr Solicitor went on upon the * A new way of dealing with Grand-Juries to procure the finding Bills of Indictment Evidence and spent some time in opening it to the Jury and We thought they would have found the Bill but it seems They have prevailed to put these scruples in the others heads Then The Lord Chief Justice Pemberton said your scruple is this here was an Impeachment offered against Fitz-Harris to the Lords which was not received and thereupon there was a Vote of the House of Commons that he should not be Tryed by any other Inferiour Court We do tell you 't is our Opinion that If an Indictment be exhibited to you you are bound to enquire by vertue of your Oathes you cannot nor ought to take notice of any such Impeachment nor Votes and We ought to proceed according to Justice in Cases that are brought before us This We declare as the Opinion of all the Judges of England Then the Jury went away and afterwards found the Bill Upon Saturday the 30th of April Mr Fitz-Harris was brought to the King's Bench-Bar and Arraigned upon the Indictment whereupon he offered a Plea in writing to the Jurisdiction of the Court and the Chief Justice said We do not receive such Pleading as this without a Counsels hand to it Upon which the Prisoner desired the Court to assign Sr Francis Winnington Mr Williams Mr Pollexfen and Mr Wallop for his Council which was accordingly done Upon Monday the 2d of May the four Council moved the Court to have longer time for drawing the Plea and that they might have a sight of the Indictment as necessary to the drawing it but they were opposed therein by Mr Attorney and the Court denyed both Then Sr George Treby and Mr Smith were also assigned as Council for the Prisoner at his request Upon Wednesday the 4th of May Fitz-Harris being brought from the Tower to the King's Bench-Bar
Mr Wallop said That they had not had those Instructions that were fit to direct them in drawing the Prisoner's Plea not having prevailed for a sight of the Impeachment or Indictment and that he conceived that by the Law as that Case was upon a special Plea The Prisoner ought to have a Copy of the Indictment Then the Plea was read in these Words viz. Et predictus Edwardus Fitzharris in propria persona sua ven dic quod ipse ad Indictament predict respondere compelli non debet quia dic quod ante Indictament pred per Jur. pred in forma pred compert scil ad Parl. Dom. Reg. nunc inchoat tent apud Oxon. in Com. Oxon. vicesimo primo die Martii anno Regni dict Dom. Reg nunc tricesimo tertio ipse idem Edw. Fitz-harris per Miiites Cives Burgenses in eodem Parl. assemblat nomine ipsor omnium Com. Angliae secundum legem cons Parl. de alta proditione coram Magnat Procerib hujus Regni Angl. in eodem Parl. assemblat impetit fuit quae quidem impetitio in plenis fuis robore effect adhuc remanet existit prout per Record inde inter Recorda Parliamenti remanens plenius liquet apparet Et pred Edw. Fitzharris ulterius dic quod alta Proditio in Indictamento pred per Jur. pred in forma pred compert specificat mentionat alta Proditio unde ipse predict Edw. Fitzharris in Parl. pred modo ut prefert impetit fuit existit sunt una eadem alta Proditio non alia neque diversa quod ipse pred Edw. Fitzharris in Indictamento pred nominat pred Edw. Fitz-harris in Impetitione pred nominat est und eadem persona non alia neque diversa hoc parat est verificare c. Vnde ipse pred Edw. Fitzharris petit Judicium si Cur. Dom. Reg. hic super Indictamentum pred versus ipsum ulterius procedere vults c. The Attorney General then prayed Judgment upon the Plea saying 'T is an insufficient Plea nay 't is no Plea to to bar you of your Jurisdiction Whosoever will plead to the Jurisdiction if he have any Record to plead must produce it in Court and for this matter it will appear a plain frivolous Plea for there is no such matter depending as this Plea alledges Another thing is this They have pleaded no Record at all nor any Impeachment at all For they say he was impeached by the Commons de alta Proditione but that is nought The Plea ought to set forth for what Crime particularly this is no Plea to the Jurisdiction upon that point Vpon an Impeachment or Indictment the King hath his Election to proceed upon which he will This is not only apparently a false Plea but frivolous in it self being to the Jurisdiction For there was never any thing of a Crime so great but the Court of King's-Bench which hath a Soveraign Jurisdiction for Commoners especially could take Cognizance of it The Chief Justice then said Pray consider whether if it be an insufficient Plea and such that no Issue can be taken upon it whether you would not demur to it Consider whether you think fit to demur or to take Issue upon it or reply to it that it may come judicially for our Opinion The King's Council Mr Solicitor Serjeant Jeffryes Sr Francis Wythens and Mr Saunders spoke much to the effect with Mr Attorney and pressed to have the Plea rejected but after much contrasting about the matter the Attorney agreed to demur generally and the Prisoner's Council immediately joyned in Demurrer Then Mr Attorney moved thus I desire your Judgment that the Plea may stand over ruled for a plain fatal Error in is This is a particular Indictment for the framing a most pernicious scandalous Label against the King They to out the Court of this Jurisdiction plead that he was Impeached of high Treason in general Now Pleas to the Jurisdiction ought to be the most certain of any Pleas whatsoever Mr Solicitor added This Plea is neither good in matter nor forme he that pleads an Indictment or Impeachment in another Court must set it forth in the Plea which is not done in this Case and We take that to be fatal to it Mr Williams for the Prisoner then said We hope the Court in this Case will not tye us up presently to argue this matter Mr Attorney sayes he never found that any Plea to the Jurisdiction required a Demurer but was over-ruled or allowed by the Court presently The Precedent in Elliot's Case is full in it He was Indicted for Misdemeanors in the House of Commons he Pleaded this to the Jurisdiction of the Court the Attorney at that time insisted to have it rejected but the Court over-ruled him and put him to demur This is a Precedent Mr Attorney hath not seen The Court in that Case did not tye them up to argue the Plea presently but gave them till the next Term. Here is a Mans Life in question and the Priviledge of Parliament concerned in it We desire a reasonable time in the Case of Plunket you gave him till next Term which is as high a Treason as this I am sure of it Sr Francis Winnington spoke to the same purpose and said This is a Case well worth our taking care of and yours too We hope you will not deny us what time is reasonable Mr Wallop added That he had been an unprofitable Attendant in that Court near forty Years and never saw so swift a proceeding as this which is as swift as lightning That whereas they called it a frivolous Plea he believed the Plea to be of the greatest import that ever those Gentlemen came there about That de Morte Hominis nulla est Cunctatio longa That he humbly prayed a reasonable time to be allotted Then the Lord Chief Justice proposed to the Prisoner's Counsel that he should plead over Mr Pollexfen answered We cannot do it we have considered it and are of Opinion that if we should plead over it would destroy our Plea by doing it we give up the Jurisdiction It is as indifferent to me as any Body to be forced to argue it now but No Body can say they ever saw many Instances of the like nature Therefore pray my Lord let us not go on so hastily with it If you will not 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 The Attorney Solicitor General and Sr George Jeffryes vehemently opposed the allowing any time to argue the matter and pressed for present Judgment but after much tugging about it the Court allowed time till the Saturday following Then upon Saturday the 7th of May the Attorney General began saying This is a Plea to the Jurisdiction of the Court and some of our Exceptions are to the form and
Fact is an Impeachment of 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 Treason so and so particularizing how can that be There is no such thing Then they would have us said Nul tiel 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 will oust this Court of Jurisdiction I see not how we should plead otherwise or what answer they will give to it This must needs be agreed to me If this Impeachment be in the nature of an Appeal surely an Appeal does suspend the Proceedings upon an Indictment for that Fact and so 't is expresly in my Lord Dyer fol. 296. Stanley was indicted and convicted of Murder and before Judgment the Wife brought her Appeal and They moved for Judgment No said the Court here is an Appeal brought They could not go to Judgment till the Appeal was determined So the Stat. 3. H. 7. Cap. 1. and Vaux's Case 4 Rep. 39. If this then be of the nature of an Appeal this Suit ought to have its Course and Determination before you proceed on this Indictment Inferiour Courts have never taken upon them to meddle with the Actions of 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 In the Earl of Northumberland's Case Cotton's Records 5 H. 4. fol. 426. He confesses himself guilty of an Offence against his Allegiance the King would have the Justices 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 went on themselves and adjudged it to be no Treason There is that Record more Rot. Parl. 11 R. 2. Pars 1. N. 6. I only offer these things with what my Lord Coke sayes Hath been formerly thought Prudence in the Judges to do So 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 The Attorney General argued thus for the King Notwithstanding what hath been said I take it this is a Naughty Plea and there is no matter disclosed therein that we can take Issue upon The great substance of the Arguments of the Prisoners Counsel is against him for 't is least he should escape but he pleads this Plea that he might escape For the Cautions given you what a difficult thing it is for two Jurisdictions to interfeir Fitz-Harris is much concerned in that matter who hath forfeited his Life to the Law yet he would fain live a little longer and is concerned that the Judicature of Parliament should be preserved I observe 't is an unusual Plea It concludes Si Curia procedere vult I wonder they did not put in aut debeat 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 Malefactors be brought to condign punishment We must press it whatsoever the Consequences are It is the Interest of all the Kingdom as well as of the King that so notorious a Malefactor should not escape or the Truth be stifled but brought into Examination in the face of the Sun but They say if it be not Law you will not proceed it ties up your Hands But they give not one Instance to make good what they say Put the Case it had been a good Impeachment he had been arraigned upon it and acquitted and had afterwards come to be Indicted in this Court and would not plead this in Bar but to the Jurisdiction it would not have been a good Plea 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 and this you had at the time of the Fact committed What then is it that must oust this Court of Jurisdiction For all the Cases that have been put about matters not originally examinable in this Court make not to the matter in question where the Fact is done out of the Jurisdiction of the Court that may be pleaded to the Jurisdiction but where the Court may originally take Cognizance of it I would know what can oust that Jurisdiction less than an Act of Parliament I will be bold to say the King by his Great Seal cannot do it To say the Proceedings in Parliament ought to be a Bar that is another Case the Party may plead it in Abatement or Bar as the Case requires For the Cases they put the Reasons are that the Court had no Original Jurisdiction There is not one of the Cases cited but where it was out out of the Jurisdiction of the Court originally As for the Case of the five Lords in the Tower I observe the House of Lords removed the Indictments into their House fore-seeing that the King might have proceeded upon them if not removed thither But our Case is quite another thing for those Lords were not fully within your Jurisdiction The Case of 11. R. 2. will be nothing to our purpose at all that was in the Case of the Lords Appellants a proceeding contrary to Magna Charta contrary to the Statute of Edw. 3. and the known Priviledges of the Subject Those proceedings had a Countenance in Parliament and they would be controuled by none nor be advised by the Judges but proceed to the trying of Peers and Commoners according to their own Will and Pleasure And between the time of 11 R. 2. and 1 H. 4. see what Havock they made by those illegal proceedings and in 1 H. 4. these very Lords were sentenced and it was resolved by Act of Parliament That no more Appeals should be any more in Parliament The other great point is this There is nothing at all certainly disclosed to you by this Plea therefore there is nothing confessed by us only the Fact that is well pleaded They say They have pleaded it to be secundum Legem Consuetudinem Parliamenti but I say They must disclose to you what is the Law and Custom of Parliament in such Case or you must take it upon you upon your own knowledge or you cannot give Judgment There are three things to be considered of the Parliament the Legislative part the matters of Priviledge and the Judicial part For the two first both Houses proceed only Secundum Legem Consuetudinem Parliamenti But for the Judicial part they have in all times been guided by the Statutes and Laws of the Land and have been ousted of a Jurisdiction in several Cases as by the Statute of 4 Edw. 3. 1 H. 4. And the Lords
Pique against him but against the Cause he was engaged in His Wife did go several times to the Lord H. and by her he believes he sent him thanks He knows no solid effects of his kindness if there were he desires the Lord H. to tell him in what He believes no part of the 6000 l was given to the Lord H. He never heard any thing of the D. of Monmouth's Confession of the Plot till after the Paper was signed by the Duke and sent to him He has heard it as common talk that the Duke had confessed a Plot and that Mr Waller told him so indefinitely he could not tell whether he meant before the signing the Paper or no He saith what the Duke did at that time was all of a piece whether speaking or writing he is sure that it was with the utmost reluctancy that the Duke signed the Paper He remembers no more in the Cabinet Council but the Lord Radnor besides those he has already named but believes there were three or four more He was bailed the 28th of November 1683. and Colonel Sidney he thinks was Executed the 5th of December following The Duke of Monmouth appeared very firm to him and engaged to do his utmost to save Colonel Sidney He saith he came out of the Tower some days before Colonel Sidney was Executed he had an intention to have visited him but his Friends thought it useless and dangerous to them and that he might write any thing he had to say Accordingly he wrote to him that he would come to him if he desired it but Col. Sidney charged him not to come but to write if he thought any inconveniency would come of it The Messenger which brought him the Message before-mentioned was Dr Hall now Bishop of Oxford who applyed to the Dutchess of Portsmouth for his Release but her answer to him afterwards was That she had tryed and could do nothing for they would rather have him rot in Prison than have the 40000 l. Dame Katharine Armstrong being examined deposed that she demanded a Writ of Error of the Cursitor of London for Sr Thomas Armstrong and told him she was ready to pay all due Fees but he told her she must go to the Attorney General and she demanded it publickly in Court of the Lord Keeper North but he said it was not in him to give but the King Mrs Jane Mathews being examined said that her Father was sent to Prison and could have no Council admitted to him nor any Friends speak with him but in the presence of his Keeper he had one Chain on him and was kept close Prisoner she saith she questions not but to prove the Lord Howard perjured for Sr Thomas could have proved by ten Gentlemen and the Servants of the House those base Reflections the Lord Howard made on him to be falshoods She saith her Father demanded his Tryal and also Counsel in the Court but was denied both the Chief Justice Jefferies telling him they had nothing but the Outlawry to go on Withens Holloway and VValcot were other three of the Judges And she thinks he was brought from aboard the Yatch by the Lord Godolphin's Warrant She saith Mr Richardson beat her Sister while she was asking her Father Blessing She saith that her Father was at Sparrow's at Dinner that day that the Lord Howard swore he was not and she saith that when her Father in Court said My Blood be upon you The Lord Chief Justice Jeffryes said let it let it I am Clamour proof Mrs Katherine Armstrong being examined saith That Captain Richardson used her Father ill and made him lie in a Chain on one Leg and would not let her see him alone and was rude to her and struck her in such manner that she had so fore a Breast that she could not put on Bodies in three quarters of a year She saith she went with her Mother to the Cursitor of London to demand a Writ of Error but he refused it She went also on the same Errand to the Lord Keeper North Mr Attorney and the Lord Chief Justice but had none Mr Richard Wynne declared That he was Solicitor to Colonel Sidney That the Colonel excepted against several of the Judy to some as not being Freeholders and others as being in the King's Service and receiving Wages from his Majesty That presently after the Tryal the Lord Chief Justice sent him Prisoner to the King's Bench Mr Wynne said this to Angier the Foreman of that murdering Jury and to Glisby another of the three Carpenters which were upon that Jury and to another of their Brethren near the King's Bench Court whereupon they went to lay hold upon Mr. Wynne at which instant Mr Forth the King's Joyner coming interposed upon which Angier said Mr Forth will you assist this Man he says Colonel Sidney's Jury was a Loggerheaded Jury To which Mr Forth answer'd I have nothing to do with the Jury but Glisby knows that I know he it a Loggerhead Of this They complained to Jeffryes who committed Mr Wynne and Mr Forth to the King's Bench It cost Mr Forth about 50 l. whereof Burton had 24 l. and he being a Protestant Joyner he ' scap'd well out of their Hands as times then went especially with that Trade for saying the Jury were a Loggerheaded Jury that They had not Evidence sufficient to find such a Verdict or found a Verdict contrary to Evidence Mr Serjeant Rotherham being examined declared That he was of Counsel for Colonel Sidney and drew a Plea for him which the Colonel desired to have read and threw it into the Court It was to distinguish the Treasons laid in the Indictment and quoted the three Acts of Treason But the Court told him if the Plea had any slip in it he must have Judgment of Death pass on him immediately After this he pleaded Not Guilty That he demanded a Copy of the Indictment as his due but the Court refused it him That Col. Sidney told him that they proved the Paper they accused him of to be his Hand-writing by a Banker who only had his hand upon a Bill Col. Sidney quoted the Lady Carr's Case in the King 's Benels Trinity Term 1669 Anno 21. Car. 2. wherein it was adjudged that in a Criminal Case 't is not sufficient for a Witness to swear he believes it to be the hand but that he saw the party write it The words in the Case are That it must be proved that she actually writ it and not her hand â—ut credit Note Colonel Sidney demanded the Copy of the Indictment upon the Statute 46 Edw. 3. which allows it to all Men in all Cases That Colonel Sidney ask'd him with the rest of the Council whether all the Book should be read at his Tryal The Council said it ought The Book was by way of Questions and meerly polemical discourse of Government in general as far as Serjeant Rotherham could find after reading in it several hours He
believes it consisted of seven or eight hundred Sheets Mr Joseph Ducas upon his Examination informed the Lords in substance as follows That Colonel Sidney was taken up by a Messenger before there could be any pretence of proof against him for the Lord Howard the only Witness was not seized till fourteen dayes after That when Sr Philip Floyd seized and carried away Colonel Sidney's Papers he promised him that the Trunk and Pillowbeere in which they were sealed up should not be opened but in the Colonel's presence but that promise was not performed That they seized the Colonel's Goods and Money in the City and Country five or six Months before any Indictment was found against him That the Colonel was brought to Westminster the 7th of November by an * A most clear demonstration that the Prosecutors of this great Man had good Intelligence with the Grand Jury Influence upon them Habeas Corpus sent the day before to be arraigned upon an Indictment tho' no Indictment was then found against him and they kept him in a Tavern in the Palace-yard an hour till they had got the Grand Jury to find the Indictment That the Colonel being carried to the Court of King's Bench and the Indictment read he demanded a Copy thereof but the Court refused it That the Colonel offered a Special Plea engrossed in Parchment and desired it might be read but the Chief Justice said that if the Attorney General demurred and the Plea were over-ruled Judgment of Death should pass upon him and Wythens said if your Plea be over-ruled your Life is gone and so he was forced to Plead Not Guilty That he challenged several of the Jury as being the King's Servants and others as not being Freeholders but was over-ruled therein Some Gentlemen and very worthy Persons were for Fashion sake put into the Pannel and called but did not appear and it may be reasonably thought they were never summoned That Colonel Sidney was informed that when the Jury was withdrawn the Chief Justice under pretence of going to drink a Glass of Sack went to the Jury when they were consulting about their Verdict That when it was demanded of the Colonel what he had to say why Judgment should not pass he urged several points of Law but was over-ruled in every thing To this effect was the Information of Mr Ducas a very valuable French Protestant Gentleman and Colonel Sidney's true Friend To which I shall here subjoyn a few words uttered by that great Man at the time of his Condemnation I was brought to VVestminster the 7th of this Month by * This leads me to correct an Error committed in the first part of this History pag. 185. where I said as I then understood it that Colonel Sidney brought the Habeas Corpus but it appears that it was brought at the instance of his Prosecutors And upon this occasion I shall confess another mistake therein all with which I have been charged in the first part that I said Robert Masters one of Sr S. Barnardiston's Jury was a principal Witness against Colledge But I must acknowledge that Richard was the Witness Robert the Jury man was his Brother and only suck'd the same Milk with him Habeas Corpus granted the day before to be arraigned when yet no Bill was exhibited against me and my Prosecutors could not know it would be found unless they had a Correspondence with the Grand Jury That the Jury was not summoned by the Bailiff but agreed upon by the Vnder-Sheriff and Graham and Burton Upon the Sentence he expressed himself in that excellent manner which the Reader may turn to in the first part of the Display of Tyranny Page 200. Whereupon the Chief Justice foaming at the Mouth told him he was mad To which Colonel Sidney with great composure and gallantry of mind stretching out his hand said My Lord feel my Pulse and see if I am disordered I bless my God I never was in better Temper than I now am Dr. Chamberlaine being examined deposed That meeting the Lord Hallifax in the Gallery at White-hall he asked his Lordship whether the Aldermen were to blame that defended the City Charter and he believes he did not blame them but said the King must or will have the Charter he rather thinks it was must have it he believes he might tell this to the Duke of Monmouth my Lord Russell and others That it was for Sr John Laurence's sake he asked the Lord Hallifax and to him he gave advice to take care in what he did he being one of the Committee to defend the Charter A Memorial of the Numbers of Charters Dispensations and Pardons passed between October 1682 and the time of the late King's Abdication THe Marquess of Hallifax was Lord Privy Seal from October 1682. to February 1684. In which time 166 Charters were granted whereof one passed immediatè No Dispensations passed in that time In that time 47. Pardons with Non-Obstante's and Clauses with Dispensations were granted whereof three passed immediatè The Earl of Clarendon was Lord Privy Seal from February 1684 to December 1685. in which time 94. Charters were granted whereof 17 passed immediate No Dispensations passed in that time In that time 10 Pardon with Non-Obstante's and Clauses with Dispensations were granted whereof two passed immediatè The Lord Tiveot and others were Commissioners of the Privy Seal from December 1685. to March 1686 7. in which time 26 Charters were granted which passed in the usual manner Dispensations with the Penal Laws in that time were Six whereof one was immediatè In that time 70. Pardons with Non-Obstante's were passed whereof one of them immediatè The Lord Arundel of Wardour was Lord Privy Seal from March 1686 7. to 4 Jacobi 2. in which time 56 Charers were granted whereof 41. passed immediatè Dispensations in that time were 35. whereof 3 passed immediate In that time were 47 Pardons with Non-Obstante's passed whereof 25 passed immediate These are the heads of the Earl of Stamford's Report which being read in the House of Lords the same was by Order sent down to the House of Commons for their Information in these Affairs Copies of some Papers mentioned in or relating to the forgoing Informations Copy of the Advertisment in the Gazette Number 1880. November 26. 1683. relating to the Duke of Monmouth mentioned in the Examinations of Mr Row and Mr Yard WHite-hall November 25. His Majesty having this afternoon called an Extraordinary Council was pleased to acquaint them that the Duke of Monmouth did the last night surrender himself to Mr Secretary Jenkins having before writ a very submissive Letter to his Majesty entirely resigning himself to his Majesty's disposal That his Majesty his Royal Highness went down to Mr Secretary's Office where the Duke of Monmouth was who shewed himself very sensible of his crime in the late Conspiracy making a full Declaration of it And that having shewed an extraordinary penitence for the same and
one is to the matter To the Form 1st The general Allegation that he was impeached de alta Proditione is uncertain it ought to have been particularly set out that the Court might judge Whether it be the same Crime and it is not helped by the Averrment 2dly Here is no Impeachment alledged to be upon Record They make a general Allegation that F. Harris was Impeached Impetitus fuit by the Commons before the Lords Quae quidem Impetitio in pleno robore existit prout per Recordum inde c. Now there is no Impeachment mentioned before And quae quidem Impetitio is a relative Clause and no Impeachment being mentioned before in the Plea there is nothing averred upon the Record to be continued or discontinued for Impetitio does not actively signifie the Impeaching or passively the Person Impeached but it signifies the Impeachment the Accusation which is to be upon Record Therefore when they say he was impeached and afterwards alledge Quae quidem Impetitio remains upon Record that cannot be good for the Relative there is only Illusive For the matter of the Plea 't is a Plea to the Jurisdiction of the Court There the point will be Whether a Suite depending even in a Superior Court can take away the Jurisdiction of an Inferiour Court which had an Original Jurisdiction of the Cause and of the Person at the time of the Fact committed I insist upon these Exceptions Mr Williams for the Prisoner then said I take these things to be admitted Mr Attorney having demurred generally 1. That the Prisoner stands Impeached 2. That the Impeachment is now in being 3. That this was done secundum Legem Consuetudiem Parliamenti and being so remains in plenis suis robore effectu And more particularly the Plea refers to the Record for the parts and Circumstances of the Impeachment prout patet per Record So that it refers the Impeachment to the Record and tells you 't is amongst the Records of that Parliament 4. Moreover That the Treason in the Impeachment and the Treason in the Indictment are one and the same and that this Person Fitz-Harris indicted and F. H. impeached are one and the same Person And withal it appears upon the Record that this Impeachment was depending before the Indictment found for the Parliament was the 21st of March and it appears this is an Indictment of this Term And further it appears not by any thing to the contrary in the Record but that this Parliament is still in being and then it must be admitted so to be Whether your Lordship now will think fit in this Court to proceed upon that Indictment is the substance of the Case I think it will not be denyed but that the Commons may Impeach any Commoner before the Lords That was the Case of Tresilian and Belknap in the time of Richard the second Vpon that Impeachment one of them was Executed and the other Banished in Parliament Mr Attorney allows the Parliament to be a Superior Court but says yet the Inferiour Court having Original Jurisdiction of the Person and Cause may proceed notwithstanding an Impeachment in Parliament I will shew how manifestly an Indictment and an Impeachment differ The Case of an Appeal is like the Case of an Impeachment An Appeal of Murder is at the suite of the Party and in this case 't is at the suite of the Commons t is not in the Name of the King but of all the Commons of England So that 't is like an Appeal and not like an Indictment an Indictment is for the King an Impeachment for the People It is not safe to alter the old ways of Parliament 't is out of the road of Comparisons when they will compare an Indictment and an Impeachment together It becomes not the Justice of this Court to weaken the Methods of Proceedings in Parliament Your proceeding upon this Indictment is to subject the Method of their Proceedings there to the Proceedings of this Court It is not fit that the Justice of the Kingdom and the High Court of Parliament should be crampt by the Methods of an Inferiour Court and a Jury The Parliament is the supreame Court and this Court every way inferiour to it and 't will be very strange that the Supreame Court should be hindred here For the highest Court is always supposed to be the wisest and the Commons in Parliament a greater and wiser Body than a Grand Jury of any one County And the Judges in that Court the Peers to be the Wisest Judges Will the Law of England 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 it suffer the Judicature to be taken out of the hands of the wisest Judges It stands not with the Wisdom of the Law or of the Constitution of the Government Another thing is this the common Argument in an extraordinary Case there is no Precedent for this way of Proceeding 'T is my Lord Cok's Argument 〈◊〉 Coke's Littleton fol. 108. and in the â—th Instit fol. 17. in the Case of the indictment against the Bishop of Winchester and of that against Mr Plowden He says 't is a dangerous attempt for Inferiour Courts to alter or meddle with the Law of Parliaments So in this case in regard it never was done from the beginning of the World till now it being without President there is no Law for it Another mischief which follows upon this is If you take this Case out of the power of the Parliament and bring it into this Court where the Offence may be pardoned you change the method of proceedings which make the Offence without consent of the Prosecutors not pardonable by Law This may be of dangerous consequence to the Publick by giving this Court a Jurisdiction and possessing it of these Causes expose them to the will of the Prince This way of proceeding inverts the Law in another thing 'T is a Principle that no man's Life is to be put twice in danger for the same thing If you proceed upon this Indictment and he be acquitted will that acquittal bind the Lords in Parliament If they may proceed upon the Impeachment then you invade every English-man's right and his Life may be brought in question twice upon the same account I take it to be a Critical thing now at this time to make such attempts as these are There are Lords now that lie under Impeachments of Treason if you goon in this do you not open a Gap that may be a ground to deliver them By the same Justice the Lords may be tryed by another Court This proceeding will have this effect it will stir up a Question between the Jurisdiction of this Court and the Parliament for in probability if this Person be acquirted the Commons and the Lords too will look into it If he be found guilty here is the Power of the Commons in Impeaching and the Jurisdiction of
determine that Impeachment before you Here is the Method and Proceedings of Parliament before you and I hope you will proceed no further on the Indictment The Cheif Justice then said Here is nothing of the Commons Right to Impeach before us nor of the Lords Jurisdiction nor the Methods of Parliament in this Case the sole matter is whether this be a good Plea to oust the Court of its Jurisdiction in this matter To which Judge Jones added Here is nothing of any fact done in Parliament insisted on here this is for a thing done without Doors Mr Williams replyed 'T is a hard matter my Lord for the Bar to answer the Bench. Sr Francis Winnington then argued for the Prisoner thus The King's Attorney has demurred generally and if our Plea be well and formally pleaded I am sure all the matter of fact is confessed by the demurrer And upon the matter of fact so agreed the general Question is Whether an Impeachment by the Commons and still depending be sufficient to oust the Court to proceed upon an Indictment for the same offence The Lord Chief Justice said That cannot come in question in the Case Sr Francis Winnington replyed Why my Lord Chief Justice The Question is Whether you have pleaded sufficient matter to oust us of our Jurisdiction Sr Francis Winnington proceeded saying My meaning is the same It is agreed that there were no doubt to be made of the Plea if there had been a particular Impeachment The House of Lords is a Superiour Court to this and a Suit in a Superiour Court may be pleaded to stop the Proceedings of an Inferiour Court and if once the Suit be well commenced in the Superiour Court it cannot after go down to the Inferiour and what is begun in one Parliament may be determined in another So is the Case 4. Edw. 3. N. 16. of the Lord Berkley and those accused of the death of Edw. 2. It was there objected as 't is here that by this means there might be a stop of Justice by the dissolution of the Parliament yet the true answer is That it is presumed in Law that Parliaments will be called frequently according to the Statute 4 Edw. 3.14 36 Edw. 3.10 This Record is well pleaded and could not be otherwise unless Mr Attorney would have us plead what is false the Commons Impeached Fitz-Harris generally and We alledge in our Plea that 't was secundum legem consuetudinem Parliamenti and so 't is confessed by the Demurrer A general Impeachment is good by the Law and course of Parliament Coke 4 Inst 14 15 says What the Law and course of Parliament is the Judges will never intermeddle with We find 11 Rich. 2. Rot Parl part 2. and Rushworth part 1. in the Appendix 51. Tresilian and others were appealed against for Treason the Judges of the Common and Civil Law were called by the King to advise of the matter they all agreed that the Proceedings were neither agreeable to Common or Civil Law But the Lords said it belonged not to those Judges to guide them but they were to proceed according to the Course and Law of Parliaments and no Opinion of theirs should oust them of their Jurisdiction 31 H. 6. Rot. Parl. N. 26. The Judges were demanded whether the Speaker of the Commons during an Adjournment might be Arrested They excused themselves saying That in this great matter they ought not to interpose it being a matter of Parliament In the great Council 1st and 2d Jac. The Judges refused to give their Opinions upon questions put to them about the Vnion of both Kingdoms for that such things did not belong to them but were matters fit for Parliament only Hence I infer that since 't is Pleaded here to be according to Law of Parliaments and Mr Attorney hath acknowledged it that you are fore-closed from meddling further with this Case it being a matter whereof you cannot judge But 'T is objected That if the Impeachment be admitted to be according to the course of Parliament yet 't is so general the Court cannot judge upon it Answer The House of Commons would not Impeach a Man for no Crime The Prisoner's Plea avers that that it was for the same Treason in the Indictment this makes the matter as clear to the Court as if the Impeachment had mentioned the particular Treason 26 Assiz Pl. 15. Stamf. Pla. Cor. 105 A Man Indicted for the Murder of I. S. pleads a Record of Acquittal where he was Indicted for the Murder of I. N. but avers that I. S. in this Indictment is the same Person with I. N. in the other Indictment and it was adjudged a good Plea tho' the Averment seemed to contradict the Record This makes it clear that if an Averment may consist with the Record the Law will allow it Mr Attorney had his Election either to plead Nul Tiel Record Or 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 he true that he was Impeached for the same Crime and that he is the same Person I shall now offer some Reasons in general 1st That when the Commons in Parliament in the name of all the Commons of England have lodged an Impeachment against any Man it seems against natural Justice that any Commoners should afterwards try or judge him for that Fact Magna Charta says That every Man shall be tryed by his Peers or by the Law of the Land This is a way of Tryal by the Law of the Land but not by his Peers for 't would be hard that any Man should come to Try or give Judgment upon a Person who hath been his Accuser before The Lords are here Judges in point of Fact as well as Law the Commoners may come in as Witnesses but not as Judges 2d Reason If an Appeal of Murder were depending before the Statute 3 H. 7.1 The King could not proceed upon an Indictment for the same Fact because the King only takes care that the Offender should not go unpunished but the preferrence was given to the Person more particularly concerned and the King's Indictment must stay till the year and day were out to see whether the Person immediately concerned would prosecute the Suit so says Lord Hales in his Pleas of the Crown Then a Minoriad Majus does the Law so regard the Interest of the Wife or 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 King's Suit 3d Reason If this Man be tryed and acquitted here Can he plead this in Bar to the Impeachment it cannot bar that great Court by saying he was acquitted by a Jury in Westminster-Hall and if so contrary to a fundamental Rule of Law a Man shall be twice put in danger of his Life
time the Judges resolved it at the Council-Table that they could not be proceeded against upon those Indictments tho' the Parliament was dissolved 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 tyed up the Hands of the Court But here the Parliament was first possest of the Cause which the Inferiour Court cannot take out of their Hands An Impeachment differs also from an Indictment in that in an Indictment you cannot plead auter foitz Arraigned but must plead Auter foitz Convict or Acquit as in Sr William Wishople's Case But in an Impeachment They will acknowledge that after Articles exhibited They cannot proceed upon an Indictment for the same Offence although the Defendant be neither Convict or Acquit I shall say no more but observe how serupulous the Judges have been to touch upon a Case where they had the least suspition that the Parliament had or pretended a Jurisdiction or were possessed of the Cause I am sure I could never obtain any thing by any Labours of mine in those Cases But upon such Motions They being aware of the Consequence would alwayes worship afar off and never come near the Mount They ever retired when They came near the Brink of this Gulf. My Lord If you retain this Cause in consequence you charge your selves with this Mans Blood I leave it to your Wisdom to consider it Then Mr Pollexfen proceeded thus I shall not make any long Argument But I would fain come to the Question if I could for I cannot see what the other side make the Question Our Plea is objected against both for the matter and form But if for the matter it be admitted that an Impeachment for the same matter will out this Court of Jurisdiction I will say nothing of it for that is not then in Question The Chief Justice assented to this saying No not at all Then Mr Pollexfen added The matter then seems to be agreed and only the manner and form of the Plea are in question for the manner they say 't is not alledged there is any Impeachment upon Record I confess Form is a subtile matter in it self and 't is easie for one that reads other Mens Words to make what Construction he will of them even Nolumus to be Volumus To answer the Objection I think 't is as strongly and closely penn'd as can be He was Impeached Quae quidem Impetitio c. What can the Quae quidem signifie but the Impeachment just mentioned before The great Question now is whether this be not too general to alledge that he was Impeached in Parliament and not saying how or for what Crime tho' there be an Averment that 't is for the same Crime whether this Plea should therefore be naught 1st For this of the Averment be the Crimes never so particularly specified in the Record that is pleaded and in that upon which the party is brought in Judicature yet there must be an Averment which is so much the substantial part of the Plea that without it it would be naught and it must come to be tryed Per Pais whether the Offence be the same or not Then the Objection to the generallity is not to the substance but rather an Objection to the Form on their side because the plea alledges the substance that 't is for the same Treason which had not Mr Attorney demurred but taken Issue on must have been tryed Per Pais To speak to the general Allegation that he was Impeached for Treason and not saying particularly what the fact was If they admit the Law That an Impeachment suspends the Jurisdiction of this Court They admit a great part of the fact and then the Question will be what Impeachment will take away the Jurisdiction and there can be but two sorts the one at large where the Offence is specified the other in general words where the Commons Impeach such a one of Treason Now if such an Impeachment be good then have we 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 ousted of its Jurisdiction The Court and We are to take notice of the proceedings in other Courts as other Courts are to take notice of the proceedings of this generally the Writ or Declaration as 't is in Sparrye's Case does in all Civil Causes set forth the particularity of the thing in question yet in some Cases it doth not do so but the Course and Practice of some Courts admits general proceedings Now where that is so the party cannot mend himself by making their Course otherwise then it is for he must not say it is more particular then the Course of the Court 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 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 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 the Question is Whether an Impeachment generally be good 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 't is for the same matter and you have confessed it by the demurrer I would not entangle the Question but I see not how they can extricate themselves out of this Dilemma if they admit a general Impeachment is good In December 1678. the Lords in the Tower were Indicted and after Decem. the 5th the Commons considering that it was intended to bring them to Tryal before the Peers They purposely to have the carriage and prosecution of this horrid Treason and to take off the Prosecution upon the Indictment Impeach the Lords and the Impeachment is just the same as this in our Plea of Treason but not of any particular Fact Now the Judges took so much notice of it that tho' the Parliament was dissolved before the particular Articles were carried up yet in February following some of the Judges are here and they will rectifie me if I am mistaken the Opinions of the Judges being asked about it at the Council-Board upon the Petition of the Lords to be either bailed or tryed They declared that the Impeachment tho' thus general was so depending in Parliament that they could not be tryed We have pleaded as our
removed and there they remain to this day nay further to those Impeachments they have pleaded to Issue which is ready for Tryal but in the Case at the Bar there is only an accusation without any further proceedings thereupon I take not this to be such a dangerous Case as the Gentlemen of the other side do pretend for you to determine 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 Oathes than ever to be afraid of any Threats or Bugbeares 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 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 Cliping or Coyning We rely upon the informality and uncertainty of the Pleading only and meddle not with the Question whether an Impeachment in the House of Lords supersedes an Indictment in the King's Bench For We say they have not Pleaded it so substantially as to enable the Court to Judge upon the Question and therefore We pray your Judgment that the Plea may be over-ruled Sr Francis Wythens added I say that this Plea cannot be good to oust this Court of Jurisdiction The Prisoner shall by no means be admitted to averr the intention of the House of Commons before they have declared it themselves and therefore I conceive the Plea to be naught for that reason also for another because the Court in this Case by any thing expressed in the Plea cannot discern or takenotice whether it be the same Treason or not Treason generally alledged in the Impeachment is the Genus and the particular Treason in the Indictment is only 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 hood-wink and blind the Court instead of making the matter plain for their Judgment The Arguments being ended The Chief Justice said We never intended when We assigned four Council to 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 in a Case of Blood We were willing to hear all you could say But 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 at this day can Impeach a Commoner in the House of Lords nor what the Jurisdiction of the Lords is nor whether an Impeachment when the Lords are possessed fully of it does bar the bringing any Suit or hinder the Proceeding in an Inferiour Court but here We have a Case that rises upon the Pleadings Whether your Plea be sufficient to take away the Jurisdiction of the Court as you have pleaded it And you have heard what Exceptions have been made to the form and to the matter of your Pleading We ask you again whether you are able to mend your Pleading in any thing for the Court will not catch you if you can amend it either in matter or form But if you abide by this Plea then We think 't is not reasonable nor will be expected of us in a matter of this Consequence to give our Judgment concerning this Plea presently All the Cases cited concerning Facts done in Parliament and where they have ender voured to have them examined here are nothing to the purpose for We call none to question here for Words spoken or Facts done in the Commons House or in the Lords which takes off the Instances you have given but our Question is barely upon the Pleading of such an Impeachment whether it be sufficient to fore-close the Hands of the Court And we will not precipitate in such a Case but deliberate well upon it before we give our Judgment Take back your Prisoner Upon Wednesday May 11th Fitz-Harris was again brought to the Bar and the Attorney moved for Judgment on the Plea and The Chief Justice thus delivered the Opinion of the Court Why Mr Fitz-Harris you have pleaded to the Jurisdiction of the Court that there was an Impeachment against you by the Commons before the Lords and you do say that that Impeachment is yet in force and by way of Averment that this Treason whereof you are Indicted and that whereof you are Impeached are one and the same Treason And upon this the Attorney for the King hath demurred and you have joyned in demurrer And we have heard the Arguments of your Counsel and have considered of your Case among our selves and upon full consideration and deliberation concerning it and all thath hath been said by your Counsel And upon conference with some other of the Judges We are three of us of Opinion that your Plea is not sufficient to bar this Court of its Jurisdiction my Brother Jones my Brother Raymond and my self are of Opinion your Plea is insufficient My Brother Dol-been not being resolved but doubting concerning it And therefore the Court does order and award that you shall answer over to this Treason Thereupon he pleaded Not guilty and the Court appointed his Tryal to be upon the first Thursday in the next Term. Upon Thursday the 9th of June 1681. Fitz-Harris being brought to the King's Bench Bar the Court ordered the Jury to be called and Major Wildman being returned upon the Jury and appearing The Attorney General demanded whether he were a Freeholder in Middle sere He answered I was a Parliament Man and one that voted the Impeachment against this Person and dare not serve upon this Jury and he was set aside as not being a Freeholder John Kent being called said that he was no Freeholder and the Chief Justice declared that then he could not be sworn of the Jury Then Gites Shute Nathaniel Grantham Benjamine Dennis Abraham Graves Henry Jones and Isaac Heath were set aside as not being Freeholders And the Jury sworn were Tho. Johnson Lucy Knightley Edward Wilford Alexander Hosey Martin James John Vyner William Withers William Clenve Tho. Goffe Ralph Far Samuel Freebody John Lockyer Then the Indictment was read comprising several Treasonable passages in a Libel called The true English-man speaking plain English Then Mr Heath as Counsel for the King opened the Indictment and the Attorney General enlarged upon it and called the Witnesses Mr Everard testified that he and Fitz-Harris became acquainted in the French King's Service and F. Harris invited him to frame a Pamphlet to reflect upon the King and gave him Heads and Instructions tending to it and told him that he should have forty Guineas and a Monthly Pension which should be some thousand Crowns Fitz-Harris then demanded of Everard Whether he was not put upon this to trapan others which Everard answered with this question Can you mention any
House without Bishopsgate and that she there saw him with a Man that had but one Eye and was full of Pock-holes Burton's Wife then testified that Mrs Gaunt came to enquire where here Husband was and she told her he was at her Daughter 's and Mrs Gaunt told her That if she were willing her Husband should go away she would take care therein and Mrs Gaunt appointed them to meet without Bishopsgate The Lord Chief Justice Jones and Judge Wythens and also the King's Counsel viz. the Attorney the Solicitor General Mr North and Crispe the Common Serjeant rack'd their Inventions to draw Burton and his Wife to charge Mrs Gaunt with the knowledge of his being in a Plot or in the Proclamation but nothing of that could be made out Nor is here any sort of proof that Mrs Gaunt harboured this ungrateful Wretch or that she gave him either Meat or Drink as the Indictment charges her And it must be further noted that here is only the single Testimony of Burton of her giving him Money and sending him away The Evidence being short in this The Chief Justice fell upon the Prisoner with ensnaring Questions demanding of her What was the reason she would send Burton away whether she gave him Money Whether she heard that his Name was in the Proclamation c Here Captain Richardson officiously interposed saying She says she is not come here to tell your Lordships what she did The Chief Justice then sum'd up the Evidence thus Burton sayes this Woman was very solicitous to send him beyond Sea That her Husband being concerned in the Plot and she as Burton believes knowing that he could make some discovery concerning her Husband endeavoured to convey him away It is true there is not direct proof that there was any particular mention that Burton was in the Proclamation but he and his Wife say that they verily believe the Prisoner knew that he was in the Proclamation and she her self being examined says that she might hear that he was in the Proclamation and that his House was searched and he could not be found and yet she conceals him what could be the meaning of this but that she was very zealous to maintain the Conspiracy and was a great Assistant to all concerned in it She will not tell you any other cause why she should be concerned to convey this Man beyond Sea and therefore in all reason you ought to conceive it was for this The Jury being thus sent out and returning Mrs Gaunt desired to be heard declaring that she hoped they would not take any advantage against her and that she had some Witnesses to call But Wythens said It ought not to be done you ought to take the Verdict and so the Jury pronounced her Guilty and Jenner the Recorder passed this Sentence You are to be carried back to the place from whence you came from thence you are to be drawn upon a Hurdle to the place of Execution and there you are to be burnt to Death Mrs Gaunt only said I say this Woman did tell several Untruths of me I don't understand the Law The Sentence was executed upon this Excellent Woman upon Friday then following being the 23d of October 1685. When she left her Murderers the following Memorial Newgate 22d of October 1685. NOt knowing whether I should be suffered or able because of Weaknesses that are upon me through my hard and close Imprisonment to speak at the place of Execution I write these few Lines to signifie I am well reconciled to the way of my God towards me tho' it be in ways I looked not for and by terrible things yet in Righteousness for having given me Life he ought to have the disposing of it when and how he pleaseth to call for it and I desire to offer up my all to him it being but my reasonable service and also the first terms that Christ offers that he that will be his Disciple must forsake all and follow him and therefore let none think it hard or be discouraged at what hath happened unto me for he doth nothing without cause in all that he hath done unto us he being Holy in all his Ways and Righteous in all his Works and it is but my lot in common with poor desolate Sion at this day neither do I find in my heart the least regret of any thing that I have done in the service of my Lord and Master Jesus Christ in favouring and succouring any of his poor Sufferers that have shewed favour to his righteous Cause which Cause tho' it be now fallen and trampled on as if it had not been anointed yet it shall revive and God will plead it at another rate then yet he hath done with all its Opposers and malitious Haters and therefore let all that love and fear him not omit the least duty that comes to hand or lieth before them knowing that Christ hath need of them and expects that they should serve him and I desire to bless him that he hath made me useful in my Generation to the comfort and relief of many distressed Ones that the Blessing of those that have been ready to perish hath come upon me and I have been helped to make the Heart of the VVidow to sing and I bless his holy Name that in all this together with what I was changed with I can approve my Heart to him that I have done his Will tho' I have crossed man's Will and the Scripture that satisfied me in it is the 16th of Isa 3 4. Hide the Out-casts betray not him that wandreth let my Out-casts dwell with thee Obadiah 12.13 14. Thou shouldst not have given up him that escaped in the day of distress But Man saith You shall give them up or you shall dye for it Now whom to obey judge ye So that I have cause to rejoyce be exceeding glad in that I suffer for Righteousness sake and that I am accounted worthy to suffer for well-doing and that God hath accepted any Service from me that hath been done in Sincerity tho' mixed with manifold Weaknesses and Infirmities which he hath been pleased for Christ's sake to cover and forgive And now as concerning my Fact as it s called alas it is but a little one and might well become a Prince to forgive but He that sheweth no Mercy shall find none and I may say of it in the Language of Jonathan I did but taste a little Honey and lo I must dye for it I did but relieve a poor unworthy and distressed Family and lo I must dye for it I desire in the Lamb-like Will to forgive all that are concerned and to say Lord lay it not to their Charge but I fear and believe that when he comes to make Inquisition for Blood Mine will be found at the Door of the furious * * Wythens Judge who because I could not remember things through my dauntedness at Burton's Wife Daughter's witness and my Ignorance took
to do Justice and therefore I cheerfully leave the matter with you I am sure that if God help me and deliver me in this Exigency that it is he and you under him that preserve my Life Gentlemen The great Incertainties Improbabilities and Consequences in this case I hope will be weighed by you and make you the better to consider the proof which is made by none but such as are Strangers to me since then they know me not I hope you will weigh it before you give it against me We must all dye and I am sure it wil be no grief to you to acquit a Man that is innocent I leave it with you The Lord direct you Then Jenner the Recorder to aggravate the matter spoke thus The Treason charged on the Prisoner is of that sort that if he be guilty he will be a just example to terrifie others from doing the like for if Traytors had not persons to supply them with Money abroad it may be they would not have so much Courage to run away We have satisfied you that Sr T. A. was indicted that an Exigent was gone against him upon that account here was a Proclamation and Sr T. A. named in it and so at his rate of talking the Recorder repeated the Evidence of the Witnesses and concluded Gentlemen We think that his defence has been so little and our proof so strong that you have good ground to find him Guilty The Chief Justice then summed up the matter to the Jury in a Speech of of a vast length which was in substance this Gentlemen of the Jury This is an Indictment of high Treason against the Prisoner at the Bar and you are to try it according to your evidence The Prisoner's affirmation of his innocence is not to weigh with you Nay I must tell you I cannot but upon this occasion make a little Reflection upon several of the horrid Conspirators that did not only with as much solemnity imprecate Vengeance upon themselves if they were guilty of any Treason but thought they did God Almighty good service in that hellish Conspiracy It is not unknown one of the Persons proscribed in this Proclamation did declare they should be so far from being esteemed Traytors That they should have Trophies set up for them and all this under the pretence and enamel of Religion Nay I can cite to you an instance of another of the Conspirators that after a full and evident proof and plain Conviction of having an hand in it when he comes upon the Brink of Death and was to answer for that horrid fact before the great God he blessed Almighty God that he dyed by the hand of the Executioner with the Ax and did not dye by the Fiery Tryal He blessed God at the place of Execution that he dyed a Traytor against the King and Government rather than dyed a Martyr for his Religion I think it necessary to make some Reflection upon it when Men under the pretence of Religion are wound up to that heigth to foment Differences to disturb and distract the Government to destroy the Foundations of it to murder his sacred Majesty and his Royal Brother and to subvert our Religion and Liberty and Property and all this carried on upon pretence of doing God good service You are to go according to evidence as the Blood of a Man is precious so the Government also is a precious thing the Life of the King is a precious thing The preservation of our Religion is a precious thing and therefore due regard must be had to all of them I must tell you in this horrid Conspiracy there were several Persons that bore several parts Some that were to head and to consult there was a Council to consider Others were designed to to have a hand in the perpetrating of that horrid Villany that was intended upon the Persons of his Sacred Majesty and his Royal Brother and with them upon the Persons of all his Majesties Loyal Subjects that acted with duty as they ought to do There were others that were to be aiding and assisting as in the case of the Prisoner if you find him guilty aiding abetting assisting by Money or otherwise or harbouring any of those Persons that were concerned therein Then he recounted the Evidence given against the Prisoner and made such Remarks upon the same as he thought fit The Jury withdrew and spent two hours in consideration of the matter and then returning gave their Verdict to the disappointment and vexation of the Chief Justice Common Serjeant and others that the Prisoner was Not Guilty Mr Attorney General thereupon said My Lord tho' they have acquitted him yet the Evidence was so strong that I hope your Lorship and the Court will think fit to bind him to his good behaviour during his Life The Chief Justice answer'd Mr Attorney that is not a proper Motion at this time So the Prisoner was discharged after he had been imprisoned five Months Tho' Mr Hayes to the eternal Honour of some good Men who were upon his Jury came off with his Life he was by this Prosecution beaten out of as good and valuable a Trade as most Linnen Drapers in London had and was by consequence highly impaired in his Estate About the same time Mr Roswell a very worthy Divine was tryed for Treasonable Words in his Pulpit upon the Accusation of very vile and lewd Informers and a Surry Jury found him Guilty of high Treason upon the the most villanous and improbable evidence that had been ever given notwithstanding Sr John Talbot no Countenancer of Dissenters had appeared with great generosity and honour and testified that the most material Witness was as scandalous and infamous a Wretch as lived It was at that time given out by those who thirsted for Blood that Mr Roswel and Mr Hayes should dye together and it was upon good ground believed that the happy deliver ance of Mr Hayes did much contribute to the preservation of Mr Roswel tho' it is very probable that he had not escaped had not Sr John Talbot's worthy and most honourable detestation of that accursed Villany prompted him to repair from the Court of King's Bench to King Charles the second and to make a faithful representation of the Case to him whereby when inhumane bloody Jeffreyes came a little after in a transport of Joy to make his Report of the eminent service he and the Surry Jury had done in finding Mr Roswel guilty the King to his disappointment appeared under some reluctancy and declared that Mr Roswell should not dye And so he was most happily delivered and being by this remarkable Providence of God still alive he would at least in my opinion do a very useful and seasonable piece of service to this Age and to those which are to succeed in publishing a full Account of the whole Proceedings against him Remarks upon the Tryal of Mr Charles Bateman at the Old-Bayly Upon the 9th day of December 1685
before the Lord Chief Justice Herbert c. IT was very well known that Mr Bateman as a good Citizen true Englishman had constantly asserted and stood up for his native Rights Priviledges and by consequence he became obnoxious to those who had conspired and resolved the ruin thereof and of the Protestant Religion with them It is an undoubted truth that this worthy Citizen's seasonable and necessary endeavour with many others of eminent desert to withstand the fatal Usurpation of Sr. John Moore in imposing Sr Dudly North and Sr Peter Rich upon the City for Sheriffs in the year 1682 did expose him to the implacable rage of the Conspirators Our Parliaments and Courts of Justice had been for some years most strenuously attempting to extirpate the hellish Popish Plot and accursed Popery but there were then found Miscreants who set themselves to run the Kingdom upon a wrong scent and they never wanted a Protestant Plot when it might cover and secret their own and all wise men saw them ready to start one when Sr John Moore had constituted proper Sheriffs At that time the Earl of Shaftesbury well knowing that his Innocence would not be able to guard him against hired and suborned Rascals and pack'd Juries and he remembring what base and villanous Arts had been used to destroy him his Sagacity prompted him to put himself out of the reach of that implacable rage which had so long pursued him and in order to it he concealed himself for some time in Mr Bateman's House and afterwards till he retired into Holland in the house of that worthy upright English-man Captain Tracy in Goodman's Fields whose Life was therefore threatned and eminently endangered but the divine Providence delivered him after he had suffered a long and close Imprisonment in Irons in Newgate under the Tyranny of Richardson Mr Bateman was also the Refuge of that eminent and well-deserving Citizen Sr. Patience Ward whose innocence could not defend him against those wrathful Enemies with his undaunted appearance against Popery had stirred up against him He retired to Mr Bateman's House and was by him concealed until discovered by that Blood-hound Atterbury About that time viz. in June 1683 the Conspirators had brought Keeling's Plot upon the Stage and thereupon Mr. Bateman was taken up by Atterbury and carried before King Charles the second and there accused by * He swore many of his Neighbours into Prisons and Irons tho' till now Rouse excepted no man was ever tryed upon his Evidence Lee the Dyer The King had declared of that infamous Varlet that if he were not checkt he would swear all mankind into the Plot Nevertheless the King demanded of Mr Bateman whether the Earl of Shaftesbury and Sr Patience Ward did lodge at his House which Mr. Bateman acknowledging he was committed Prisoner to the Marshalseas and there kept eighteen Weeks and then there being no Prosecution he was discharged upon Bail At the time of the Duke of Monmouth's Landing not only the Prisons about London but the Halls of many of the City Companies were filled by the then Lieutenancy with the best Citizens under the imputation of being Trayterously affected or Enemies to the Government without any manner of accusation and amongst them Mr Bateman was imprisoned in Cloth-workers-Hall but being discharged from thence in a short time afterwards Atterbury who in that day took up whom he pleased fetched him from his House at Highgate and kept him some time Prisoner in his own House which he made a Goal as long as Men would feed his Avarice and then delivered him over to Richardson by whom he was kept in a close Room with the Windows boarded up sixteen or seventeen Weeks before he was brought to Tryal That Mr Bateman was a Person of very good sense and understanding will not be denyed by any Man to whom he was known but by the rigour severity and inhumane usage wherewith he was treated during his long Imprisonment he was found at the time of his Tryal to be very much shattered in his understanding and very uncapable of making a defence and that defence which he made was by the assistance of his Son a very young Man of about twenty years of age The Jury returned and sworn to pass upon him were Richard Aley Richard Williams John Cannum Patrick Barret John Palmer James Raynor Edward Rhedish George Lilburne Daniel Fowles Peter Floyer Laurence Cole John Cooper Mr Phips opened the Indictment to this effect viz. That the Prisoner the 30th of May 1683 trayterously with other Rebels conspired to depose and kill the King and to change and subvert the Government and did promise and undertake to be assisting and aiding in the apprehending the King and in taking and seizing the City of London and the Tower the Savoy and Whitehall Then Serjeant Selby and Mr Moloy aggravated the charge in the Indictment And Josia Keeling witnessed that Rumbold * Note all this is hear-say and no manner of Evidence against the Prisoner Keeling had heard it discoursed but for ought appears it might be by Secretary Jenkins for he named no Body said he had a House very convenient to plant Men in to seize the King and that he had heard it discoursed that Mr Bateman was lookt upon as a Person fitting to manage one Division in order to an Insurrection to seize the Tower c. Tho. Lee the Dyer testified that he being acquainted by Goodenough This Lee at the same time that he swore against Mr Bateman also offered to swear Treason against a Person with whom to my certain knowledge he never exchanged one word in his Life and who never was in company with him nor otherwise seem by Lee than at a considerable distance in a Coffee-house how the City was to be divided into twenty parts and managed he the said Lee nominated Mr Bateman as a fit Man to manage one part and thereupon he was desired by Goodenough to speak with him about it and that when he discoursed him he plainly apprehended Mr Bateman was no stranger to it nor boggled to give his consent That he went with Mr Bateman to the Duke of Monmouth's House and after he had had some discourse with one of the Duke's Servants he came to him and told him the Duke was willing to engage in the business and had Horses kept in the Country to be in readiness when matters should come to extremity That he the said Lee and Mr B. went to the Devil-Tavern and there Mr B. proposed the seizing the City Tower Savoy and Whitehall and the King's Person And that Mr B. told him at the Half-Moon-Tavern in Aldersgate-street that if he could but see a Cloud as big as a Mans hand he would not be wanting to employ his Interest That Mr Bateman had told him Just as likely a story as that of Colledge's Plot in his single person to seize the King at Oxford that he intended to take an House near