evidently appear That it is in no sort a parallel Case The matter which I conceive is confessed by the Demurrer is that there is an Impeachment by the Commons of England of High Treason against Fitz. Harris lodged in the House of Lords secundum Legem consuetudinem Parliamenti And that the Treason for which he was Impeached is the same Treason contained in the Indictment to the which the Prisoner hath now pleaded Upon this matter of fact so agreed the general Question is Whether an Impeachment for Treason by the House of Commons and still depending be a sufficient matter to oust the Court from proceeding upon an Indictment for the same Offence My Method will be shortly to speak to these things Lord Chief Justice Pray let us give you some direction that is not the question nor can come in Question in the Case you mistake the points of the Case Sir Fran. Winning Why My Lord Lord Chief Justice The Question is whether you have pleaded sufficient matter here to out us of our Jurisdiction It is to no purpose to put Questions in the Case that are not in it Sir Fran. Winning My Lord I know the Case is very nice and tender on all sides and therefore may very well bear an interruption however I express'd my self my meaning is the same with your Lordships The Method that I shall proceed in will be this I will suppose the Case before you had been of an Impeachment containing the special Treason for which he is now Indicted I will shew in the next place that as it is now pleaded 't is as available as if the Impeachment in the House of Lords had mentioned the particular Treason I shall then give some reasons why it is so and mention one or two Precedents that have not yet been cited Two of the Kings Council did agree that they would not make a doubt of the Plea if there had been a particular Impeachment and therefore I would by considering what would be the reason of that Case apply it particularly to the present Case The House of Lords is a Superior Court to this And is agreed to be the Highest Court of Record in the Kingdom Plowden 389. Co. Litt. 109 110. 9. Co. in Prâ—…fat And then I am within the Common Rule of Pleading according to the differences taken in Sparries Case 5. Co. 61. and 62. That a suit first Commenced in an Inferior Court cannot stop a suit in a superior Court though subsequent but a suit in a Superiour Court may be pleaded to stop the procedings of one that is Infeor And though it may be objected here that the Parliament is determined and dissolved and so there would be a failure of Justice yet this Objection is of no force for if once the suit be well Commenced in the Superior Court it cannot after go down to the Inferior And what is begun in one Parliament may be determined in another so is the Case 4 Edward 3. n. 16. of the Lord Barkeley and those that were accused for the death of Edward the 2. And though it was objected there as hath been here that by this means there might be a stop of Justice by the Dissolution of the Parliament yet the short and the true answer is that it is in Law to be presumed Parliaments will be called frequently to consider of the business of the Kingdom and redress grievances according to the several Statutes made for that porpose 4. Ed. 3. cap. 14. 36 Ed. 3. cap. 10. I shall labour this no farther but taking it as the common Rule of pleading that a Record in a Superior Court may be pleaded to stop a proceeding in an Inferior I shall come to prove that this Record is well pleaded and could not be otherwise unless Mr. Attorney would have had us plead what is false this being the truth of the Case for the Commons did Impeach Mr. Fitz Harris generally of Treason as 't is the Course of Parliaments for them to do and in our very Plea we alledge that he was Impeached secundum legem consuetudinem Parliamenti and so Mr. Attorney hath confessed by the Demurrer and if they may prefer an Impeachment in general accord-to the Law and Custom of Parliament why then so far it must be allowed that we have pleaded well that he was Impeached of Treason It is very true My Lord If a man will plead generally that he was Indicted of High Treason this would be ill because the Court cannot take it otherwise than he has pleaded it and such a general Indictment would be altogether void and therefore no Averment could make it good or supply that generality and uncertainty But an Impeachment generally for Treason is good and warranted by the Law and course of Parliament and so confess'd by the Demurrer And so your Lordship will take it to be and will give Credit that all is regular in the proceedings of that High Court You will presume even in the Ecclesiastical Courts as My Lord Coke says in the 4th Report that all things are rightly done when they have a Jurisdiction à fortiori you will believe the greatest Court in the Kingdom does proceed regularly My Lord Coke in the 4th Inst fol. 14. and 15. does say what the Law and Course of Parliament is the Judges will never intermeddle with They always leave it to the Parliament who are the Superior Judges and are to determine the matters before them For they take notice that the Course of a Court is the Law of a Court as 't is in Lane's Case in the 2. Report in the Case of the Exchequer And therefore if a general Impeachment is secundum legem consuetudinem which is confessed by the Demurrer in this case then you must take it for granted that the Parliament proceed rightly and that such a general Impeachment is sufficient in Law There is a famous Case that strengthens what I say 11 Ri. 2 di Rot. Parl. par 2. the Case of the Lords Appellants You will find it also cited in Rushworths Col. part 1. in the Appendix fol. 51. Tresillian and others were appealed against for Treason and both the Judges of the Common and of the Civil Law were by direction of the King called to advise of that matter And they did all declare that the proceedings in that Case were neither agreeable to Common Law nor Civil Law But the Lords in Parlialiament said it did not belong to the Judges of the Common Law or Civil Law to guide them but that they ought to proceed according to the Course and Law of Parliaments which are the words of our Plea and that therefore no opinion of theirs should out them of their Jurisdiction or alter the Course and Method of proceedings My Lord this Case is very remarkable but I will go a little further the Judges in all Ages have been so far from taking upon them to judge of the Laws and Customs of Parliament that
not Councel for his life in matter of Fact as in cases of Appeal at the suit of the Subject he hath The King may pardon part of the Sentence it was done so in Rich. the 2 d's time and it was done so lately in my Lord Stafford's Case but take it for a supposition that it is the suit of the People yet that cannot preclude the King from his suit neither for at Common Law before the Statute of 3 Hen. 7. where a man had an Appeal for Murder the King had not his hands tied up not to proceed upon the Indictment it had been used so I do agree and so 't is recited that it had been used so in the Statute of 3. Hen. 7. but there was no positive Law for it nor could it have been pleaded in bar of an Indictment that the Indictment was within the year but the King used to stay out the year in favour of that suit But since the Statute the use is otherwise and the reason why they proceed immediately is because now an Acquittal or an Attainder upon the Indictment is no bar to the Appeal but the party may go on in his Appeal I mention this because the consequence which they urge as such a dismal one will be nothing which is What if he should be acquitted here he could not plead auter foits acquit so would be twice brought in jeopardy for the same offence For it is the same in all Cases of Appeals a man comes in jeopardy twice if he be indicted within the year and attainted or acquitted within the year it is no bar to the Appeal But this is not like the Case of an Appeal for Murder neither for though it hath been used discretionarily in the Court to stay the Suit of the King and to prefer the Suit of the Subject it was then because the Subject had the first and nearest concern as the Son in the death of his Father and it did mostly concern him to prosecute it The King is concerned as the Fountain of Justice onely to bring Offenders to condigne punishment but the nearest damage and the first to be prefer'd was that of the party who had lost his Relation Now the reason of that turns quite contrary here For as in that Case the Subject had the nearest concern in the loss of his Father and so was best intituled to the Suit so in this Case that very reason will have the Kings Suit to be prefer'd for there is no Treason but against the King and in Treason against himself the King has the nearest concern and the wrong is primarily and originally to himself And the Subjects damage is but a consequence of that as all hurt to the King must needs hurt the people So the Kings Suit is to be prefer'd here as the Subjects was in the other Case Now for the Objection that has been made that if you try this man upon the same reason you may try the Lords in the Tower Their Case is different as has been already observed by Mr. Attorney And that which has been done by the Lords in that case to me does rather seem to imply that this Trial may be in this case For if the Lords after an Impeachment brought up against the five Lords in the Tower and after the special matter in the Articles which does ascertain upon what they do proceed have thought fit notwitstanding to remove the Indictment by Certiorari into Parliament for so it was in fact that no prosecution might be upon them then certainly they thought the Kings Court might proceed without doing so My Lord I will mention no more upon this matter but leave it to your Lordships consideration But as to the form of the Plea I do conceive with submission 't is not a formal Plea We know here of no form of pleading an Indictment but what does set forth the Indictment particularly the Presidents are so 't is so in Vaulx's Case and all the Presidents that I have seen so is the President in Rast Ent. where in an Appeal the Defendant waged Battle the Plaintiff replies he was formerly indicted he sets forth the Indictment particularly All the Presidents are so and the Law-Books resolve it must be so as Wrott and Wigg's Case where the Defendant in an Appeal of Murder by the Wife pleads that he was indicted for Manslaughter before the Coroner of the Verge and Coroner of the County for killing the Husband at Shepperton in the County of Middlesex and had his Clergy with reference to the Record and the usual Averments with this farther that he averred that Shepperton at the time of the Indictment and Death was within the Verge To which the Plaintiff demurred and Judgement for the Plaintiff Now two things are resolved by this Judgement 1. That 't is necessary to set forth the whole Record of the Indictment or otherwise they ought not to have given Judgement for the Plaintiff by reason the Indictment was insufficient as 't was pleaded in that it did not say that Shepperton was within the Verge which was necessary to intitle the Coroner of the Verge to a Jurisdiction because being pleaded with reference to the Record upon Nul tiel Record pleaded and the Record thereupon brought in that defect might have been cured 2. That no Averment of Fact can supply that which should appear upon Record therefore the Averment that Shepperton was within the Verge did not mend the matter though confest by the Demurrer as much as it is in this case that 't is the same Treason But they say there is a difference between this Case and those which I have put for that 't is the course of Parliament of which your Lordships must take notice to impeach general so they could not have pleaded otherwise than they have done unless they had pleaded it otherwise than the Cases was this reason holds rather the other way for if in any Case such a general way of pleading with reference to the Record were to be admitted it were in case of an Indictment because the Court knows there is no Indictment but what does particularly set forth the Felony which when produced is capable of being applied but here if the Record be brought in 't will no more ascertain the matter of the Impeachment than the Plea does already And whereas they say your Lordship is bound to take notice of the course of Parliament so your Lordship will take notice too that 't is not the course of Parliaments to try any man upon such a general Impeachment I never heard of any man I speak it with submission to them that know better that was brought to plead Not guilty upon a general Impeachment of High-Treason that is upon the Commons bare saying We do impeach such an one of High-Treason I know none that ever was brought to answer that general Accusation And now my Lord as the Plea is nought for not setting out the Record so is the Averment
general Act of Parliament but if he will plead a particular Act he must set forth the Matter of it to bring his Case under the Judgment of the Court And whether this be so pleaded or no we submit it to you L. Ch. J. Pray let me speak two or three Words to you Do you speak it against our receiving of the Plea Mr. Attor Gen. Yes my Lord We hope you will not admit such a Plea L. Ch. J. That will be hard Pray then consider with your self whether if it be an insufficient Plea for we 'll say nothing at present to that and if the Plea be such that no Issue can be taken upon it admitting it were so whether you should not demur to it before you demand our Judgment that we may have somewhat upon the whole before us to judg upon And I speak it to you Mr. Attorney to this purpose that you may consider whether you shall think fit to demur to this Plea or whether you shall think convenient to take Issue upon it or to Reply to it That it may come judicially for our Opinion for in a regular way if a Plea be admitted it must be either demurred to or replyed to Pray consider of it in this Case and we will give you time to consider if you please Mr. Serj. Maynard Under favour My Lord If a Plea be apparently vitious when it is upon Record we need not demur to it nor take Issue for else the mischief will be we shall admit all that is well pleaded to be true Mr. Serj. Jefferies My Lord If your Lordship please I do confess that according to the usual Course and Practice if there be a doubt upon a Plea that is read whereon any Point in Law may arise you do put the Party to demur or take Issue but according to the common Course of this Court in common Cases and much more in extraordinary Cases and especially in Capital Cases and most of all in a Case of High Treason such as this if it do appear to the Court and your Lordship That the Plea is in its Nature a frivolous Plea you do usually refuse to admit such a Plea and give Judgment upon it Now we would acquaint your Lordship with our Apprehensions in this Case and we would pray you to consider what the danger may be upon us to demur if this Plea be frivolous as it appears to be For whether an Indictment in this Court or an Indictment in another Court be for one and the same Offence and so a Bar to the Jurisdiction we are not so much as admitted into the Question of that as this Plea is Whereas according to the Course in other Pleas we pray you would be pleased to see the inconvenience if we should be put to demur to it for then we do admit by this Demurrer that this Impeachment is for one and the same thing and we humbly conceive my Lord that is a little dangerous How then will it be possible for you ever to judg That the Impeachment which in Fact is otherwise and the Indictment is for the same thing unless you will put them to pursue the common Methods how it was in the House of Lords by shewing forth the Record and what can we do otherwise it being apparently against the common Form of Pleas and manifestly for delay only then Pray the Judgment of the Court which we hope will be to reject this Plea Lord Chief Justice Brother Jefferies You need not be afraid that you shall be concluded by this Demurrer that there is such an Impeachment in the Lords House for the same Offence There will be no colour for it And Brother Maynard Formerly I confess when they pleaded Pleas Ore tenus and took their Exceptions Ore tenus too they would demand Judgment of a Plea presently and so it was in the Bishop of Winchester's Case 3 Edw. 3. where there was an Indictment against the Bishop here in this Court for going away from the Parliament at Shrewsbury without the leave of the Lords There Shard comes in and Pleads Ore tenus this Matter and says This is a thing that concerns the Lords in Parliament of which they have Cognizance only and so prays the Judgment of the Court presently Whether they have Jurisdiction of the Cause or no and he pleads it in abatement There they over-ruled him presently without any more to do because their Pleadings were not as now they are now they are grown into a formal Way all entred upon Record or at least written in Paper and what should be the Reason why you should not do according to the common course of the Court I leave it to you to consider of it Mr. Serj. Maynard It is very true my Lord antiently the Course was so my Lord and the Law was so too to plead Ore tenus but pleading in Paper is the same thing and the Course of the Court hath been when they saw it in Paper to be a frivolous Plea to give Judgment presently and you have the same Priviledg upon this account as they had when Pleas were by Word of Mouth If there be a Demurrer it may hang longer than is convenient this Cause should do Lord Ch. Just Do not speak of that Brother Maynard as to delay you shall take as short a day as you will Mr. Attor General I have looked upon all the Precedents and could never meet with one Demurrer where the Plea was to the Jurisdiction but I pray your Judgment upon the first Matter Whether whosoever pleads to the Jurisdiction ought not to have the Record in poigne to justify his Plea In a Plea in Bar indeed it may come in by Mittimus but in a Plea in Abatement the Party ought always to be ready with those Matters that are to out the Court of their Jurisdiction and besides the Court is to maintain their own Jurisdiction the King's Counsel have nothing to do to assert that but they ought to avoid all things that may be to the Kings Prejudice and therefore it ought to be by the Judgment of the Court in this Case set aside But I do think you will never find a Demurrer that was to a Plea to the Jurisdiction L. Ch. J. Pray consider of that Mr. Attor Gen. But if it appear to be a frivolous Plea in the Form or in the Matter you will not put us sure to Demur L. Ch. J. If you do insist upon it that you won't demur nor do nothing we will give Judgment but we will take time to consider it if you won't Demur nor take Issue or Reply Sir Fra. Withins Will your Lordship please to spare me one Word As it hath been observed to your Lordship This is a Plea to the Jurisdiction of the Court and if they do plead a Plea of that Nature the Court always expects the Plea should be substantially good otherwise it is not to be received now it is not substantially good here For
but differ extreamly I would then offer you some reasons why this Court ought not to proceed upon this Indictment I take it it does not become the Justice of this Court to weaken the Methods of proceedings in Parliament as this Court will certainly do For if you will admit this to be the course that I have open'd your proceedings will alter it When there is an Impeachment depending in Parliament for Treason if your Lordships will admit there may be an Indictment here afterwards in this Court and proceedings in this Court upon that Indictment 't is to alter the Method of Parliament proceedings and to subject the Method of their proceedings there to the proceedings of this Court. And what the Mischief of that will be I must leave to your Lordship As I open'd it before the Methods of both Courts are different and their proceedings very much vary I think I need not trouble your Lordship with that We all know it very well in the main Indictments in this Court are to be tryed by a Jury where a Verdict must be given presently There is but very little time for giving the Evidence or for making Observations for the Crown or for the publick and in order to bring it to the Tryal there must be an immediate Plea of Guilty or Not Guilty Now if the proceedings of Parliament were so sudden there might be a great surprize and great offenders pass unpunished because the Prosecutors had not greater time to inspect the Records that might be of avail in the Case Therefore in Parliament 't is quite otherwise there is time for Deliberation and Consideration there are many references and many Examinations which are matters of Deliberation and Consideration which take up a great deal of time But here you are straitned not only in time but bound up to strict Rules and so are straitned in your Methods and forms of proceedings as Mr. Attorney would here tye us up to the forms of little Courts but it is not fit that the Justice of the Kingdom and the high Court of Parliament should be crampt by the Methods of an Inferior Court and a Jury So you will then subject the Methods of proceedings in Parliament to the Courts in Westminster-Hall and what the Consequence of that will be is worth the consideration Another reason I would humbly offer is this My Lord the Parliament is the Supream Court certainly and this Court is every way inferior to it and it will be very strange that that Supream Court should be hindred by an inferior For the Highest Court is always supposed to be the wisest the Commons of England in Parliament are supposed to be a greater and a wiser body than a Grand Jury of any one County The Peers who are the Judges in that Court are supposed to be the wisest Judges as the Commons the wisest Inquest Will the Law of England now suffer an Examination Impeachment and Prosecution for Treason to be taken out of the hands of the greatest and wisest Inquest in England And will the Law of England suffer the Judicature upon this Prosecution to be taken out of the hands of the wisest and greatest Judicature and put it into the power of a smaller Number of Judges or of an inferior Jury I do think it does not stand My Lord with the wisdom of the Law or of the Constitution of the Government Another thing is this My Lord the common argument in any extraordinary Case there is no Precedent for this way of proceeding 't is my Lord Cokes argument in his Comment upon Littleton fol. 108. and in the 4th Inst fol. 17. in his Comment upon the High Court of Parliament And he takes occasion to speak it upon the account of that Precedent the Case of the Indictment against the Bishop of Winchester and of that against Mr. Plowden and he says this wus never practised before Therefore it ought not to be so he infers and puts a black mark upon it by saying 't is a dangerous attempt for inferiour Courts to alter or meddle with the Law of Parliaments for the words I refer my self to the Book I dare not venture to repeat them upon my memory So in this case in regard that it never was done from the beginning of the world till now the 33 year of this King I may say it being without Precedent there is no Law for it My Lord there is another mischief that will certainly follow upon this and that too runs upon the Comparison of an Appeal and of an Indictment In the Case of an Indictment 't is in the power of the Prince to pardon that Indictment to pardon the punishment and to pardon the offence but in the Case of an Impeachment I take it to be otherwise as 't is in the Case of an Appeal And My Lord if your Lordship will take this Case out of the power of the Parliament and bring it into this Court where the offence may be pardoned You do by that means subject that offence and that method of proceedings which would make it without consent of the party prosecuting not pardonable by Law to a Pardon and this may be of dangerous consequence to the publick that crimes that are heinous and great in themselves mighty bulky crimes fit for the consideration of a Parliament be they never so great never so dangerous to the Government yet should by giving this Court a jurisdiction and possessing it of these causes expose them to the will of the Prince and so those crimes which are impardonable by methods of proceedings in Parliament would become pardonable by prosecution in this Court Now My Lord for my Authority that Impeachments are not pardonable I would only hint a little to compare it to the Case of an Appeal as Peuryn and Corbett's Case in 3 Croke Hill 38 Eliz. fol. 464. There was an Appeal of Murder upon which he is found Guilty of Man-slaughter and Not Guilty of the Murder Then there was a Pardon pleaded of the burning in the hand or of the punishment it is not plain in the Book whether the Pardon was after the Verdict or before that I can't be clear in but however there was a question whether the Queen could pardon the burning in the hand however it was there allowed but there was an exception My Lord Coke who was then Attorney General took that the King could not pardon if it had been an Appeal of homicide and he concurr'd with the Court in that opinion but that Appeal being for Murder and the Verdict of Man-slaughter they passed over the question for this reason that I have mentioned That the appeal was not for Man-slaughter it was for Murder and if he had been found guilty of the Murder it was not in the power of the King to pardon him it being at the suit of the party So the opinion of that Book is and of the then Attorney General Thus I have stated the thing and the consequences of
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
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