Grammar an Adjective for a Substantive but I take it to be as well as any man can plead in this Case For what says the Prisoner The Knights Citizens and Burgesses in Parliament assembled did Impeach me which Impeachment is still in force before the Lords I take it to be as plain as can be If they did impeach me then there was an Impeachment it can bear no other sence My Lord another Exception and which was thought a strong one the other day and strongly urged is that the King may chuse his Court and they compared it with the other Courts but there is the mistake that runs all along in this Case 'T is no doubt the King may chose his Court for his own action and suit but the Impeachment is an Impeachment of the Commons and their suit is to be tryed no where else but in Parliament And the Case that was the other day cited by Mr. Attorney for this purpose is true of the person that was arraigned for Treason and had been Indicted and arraigned in Ireland and he may be arraigned and tryed here there is no Question of it but to say therefore that this is a Consequence from that Rule that therefore he will chuse whether he will proceed in Parliament upon the Commons Impeachment and put a stop to the proceeding of the Parliament by proceeding in this Court I take to be a great Non sequitur My Lord I have offered these Reasons as to the form of the Plea to maintain it Now as to the Precedents I would a little speak what hath been done in the like Case where this Court hath taken hold of Causes and the prosecution of the Court hath been stop'd by Pleas to the Jurisdiction and what hath been done upon those Pleas What doom they have had I will hint some of them to you There was a Case mentioned by your Lordship the other day the Bishop of Winchesters Case 3 Edw. 3. I dare not say that I have looked upon the Parliament Roll but my Lord Coke tells us he hath recited the Record de verbo in verbum in the 2. Institutes fol 15. there are all the proceedings it was not an Indictment for my Lord Coke contradicts that and says it was a declaration there the Record at large sets forth that the Bishop of Winchester was attached to answer the King for that whereas at a Parliament held at Sarum it was ordained per ipsum Regem ne quis ad dom Parliament summonitus ab eodem recederet sine licentia Regis And that this Bishop in contempt of the King recessit without leave of the King I think 't is rather an action than a Criminal proceeding what says the Bishop to this He comes and says si quis deliquerit erga Dominum Regem in Parliamento aliquo in Parliamento debet corrigi emendari non alibi in minore Curia quam in Parliamento c. What becomes of this Plea 't is strange there should be such an Inhibition that no man should depart without leave of the King and the Bishop be punished for it we do not find any Judgement was given nor would they venture to do it My Lord Coke hath a mark upon it for this very reason it looked as if there was a design to weaken the Parliaments by bringing their proceedings into Westminster-hall but they would not do it they would give no judgment for the King but for ought appears the Plea stood Then there is the other Case of Mr. Plowden and many more in primo secundo Phil. and Mar. where a great many of them some whereof were Burgesses and they submitted but he did not The Information there is this that these persons were summoned to the Parliament and departed from thence without the leave of the King and Queen though it was prohibited by them that any should depart most of them submit to a Fine and if it had rested there it might have turned to the prejudice of the Commons as an example But Mr. Plowden he pleads as one that understood himself and the power of Parliaments and their proceedings very well and considers the time to have pleaded in says he continued in the Parliament from the beginning to the end of the Parliament but he relies not there but he brings a traverse full of pregnancy and if our Plea be faulty theirs was 100 times as faulty Absque hoc that he the said Edmond Plowden the said day and year during the said Parliament without License of the said King and Queen and the Court aforesaid did contemtuously depart in Contempt of the said King and Queen and their Commandment and inhibition and to the great detriment of the Common-Weal and State of this Kingdom c. All these things he pleads which your Lordship knows to be a very ill traverse and yet this Case continued all the time of that Queen and the Court would never give judgement in it This was in primo secundo and yet it appearing upon the face of the Information that it was a Case that concerned the Commons the Court would not give judgement for or against the Commons as long as the King and Queen lived There is a later Case and that is Elliots Case 5 Car. there is an Information against My Lord Hollis Sir John Elliot and many more and there is a Plea put in to the Jurisdiction of the Court I have a Copy of My Lord Hollis's Plea and 't is in a manner as faulty as Plowdens Plea but the Court in that Case does go not upon the insufficiency of the Plea but gives judgement generally that this Court had a Jurisdiction the assault happen'd in Parliament and the words were spoken there and upon the Demurrer they gave judgment upon the whole matter what became of that judgement We know very well it was reversed 19 of this King And pray observe the proceedings in the reversal of that judgment Judgment wâ—s given against My Lord Hollis and the rest of the Gentlemen of the House of Commons though there was no prospect of a Parliament yet they were obstinate and would not plead for they thought the judgment to be a very hard judgment and this being a Plea in abatement judgment was given for want of a Plea over It may fall out in this Case that this person may be obstinate and not plead over if you should give your judgment against this Plea In Elliots Case they were fined severly and they continued under this judgment in Prison and in execution for the Fine a great while and they were delivered by what I cannot indeed justifie in all its proceedings I mean the long Parliament but what was done in 19 of this King I think is good authority which none can say but was a Parliament as useful to the King and Kingdom as ever could be In that Parliament the Commons examined this judgment I speak because I have it in my printed Book t
I Do appoint FRANCIS TYTON and THOMAS BASSET to Print the Arraignment and Plea of EDWARD FITZ-HARRIS with the Arguments and Proceedings thereupon and that no others Presume to Print the same Fr. Pemberton THE ARRAIGNMENT AND PLEA OF Edw. Fitz-Harris Esq WITH ALL THE ARGUMENTS IN LAW AND PROCEEDINGS OF THE COURT OF Kings-Bench Thereupon in EASTER TERM 1681. LONDON Printed for Fr. Tyton at the Three Daggers and Tho. Basset at the George in Fleet-street 1681. THE PROCEEDINGS OF THE Court of Kings-Bench IN THE CASE OF Edward Fitz-Harris Esq In Easter-Term 1681. Easter-Term xxxiij Car. Secundi Regis in Banco Regis ON Wednesday April 27. 1681. the Grand Juries for the County of Middlesex were sworn and after the Charge delivered by Mr. Justice Jones His Majesties Attorney General desired That some of that Grand Jury which served for the Hundreds of Edmonton and Gore that for Oswolston Hundred being immediately adjourned for a Week might be present at the swearing of the Witnesses upon an Indictment for High-Treason to be preferred against Edward Fitz-Harris Prisoner in the Tower of London which was granted but the Grand Jury being under some scruples against receiving of the Bill desired the Opinion of the Court therein which Mr. Justice Jones alone thought not fit to give but ordered them to attend next day when the Court was full And accordingly on Thursday April 28. the said Grand Jury came to the Bar and Mr. Michael Godfrey Brother to Sir Edmond-bury Godfrey who was their Foreman addressed himself thus to the Court. Mr. Godfrey My Lord I have an humble request to make to the Court on the behalf of my self and another on the behalf of the Grand Jury for the County of Middlesex of which I am Foreman This Gentleman Mr. Ward I did beg of when I was Sworn to choose another man that was fitter for the service as being more experienced but he would not and I beg your pardon if I should commit any failure for want of experience But I do desire before we proceed upon this Indictment before us that this same Fitz-Harris may be examined about my Brothers Death of which I suppose he may know much because in the Printed Narrative he does speak of one De Puy who was a very active man about that Murder and how ill a man soever he hath been we do hope he hath so much Truth in him as to tell what he knows of that horrid Murder Therefore I pray your Lordship that you would grant an Habeas Corpus to fetch him before your Lordship to be examined upon that point before we do proceed that is all as to my self My Lord as to the Jury we do all of us humbly present this Paper and desire it may be Read in Court L. C. Justice What is it a Petition Cl. of Crown It is not subscribed by any body Jurors But we do all own it my Lord. L. C. Justice What is it Read it Cl. of Cr. We Michael Godfry c. being Sworn to serve in the Grand Inquest the Hundreds of Edmonton and Gore in this County of Middlesex c. and being yesterday sent for into the Court of Kings-Bench by a Messenger from the said Court to be present at the Swearing of several Witnesses produced on the behalf of our Sovereign Lord the King to prove the truth of some Indictments then in the hands of the Clerk of the Crown and observing that Sir William Waller Smith and others were Sworn to give Evidence against Edward Fitz-Harris now Prisoner in the Tower who in the late Parliament at Oxford was Impeached by the Honourable House of Commons in the name of themselves and of all the Commons of England of which we the said Michael Godfrey c. are part and as Jury-men be his Judges also We therefore Humbly desire the opinion of this Honourable Court whether it be lawful and safe for us the said Godfrey c. in case an Indictment of the said Fitz-Harris should be brought before us to proceed to Examin any Witnesses in reference to the said Indictment or any way to meddle with it or proceed upon it notwithstanding the said Impeachment and Votes pursuant to it by the said Honourable House of Commons And this being a great point in Law and of so great consequence for us to undertake in a point of Right not settled by Conference and remaining yet undetermined in the High Court of Parliament We therefore humbly desire the opinion of this Court upon the whole matter whether legally and safely we may proceed upon to find the Indictment of Fitz-Harris or no Mr. Godfrey My Lord We do humbly desire the Resolution of the Court in this matter as a thing of weight for we are between Two Millstones as we apprehend it and shall be Ground between them L. C. Justice Look you Gentlemen of the Jury We do not apprehend so Mr. Att. General My Lord Be pleased to spare me one word This Indictment was tendred to this Grand Jury yesterday and this Gentleman was against accepting the Bill till he had your Judgement and so were two more but for all that the body of them carried it all but these three to hear the Evidence whereupon Mr. Solicitor and my self did go on upon the Evidence and spent sometime in opening it to them and it was all given to them and truly the Gentlemen did seem to be abundantly satisfied what an horrid Villany it was and we did think they would have found the Bill but it seems they have prevailed to put these scruples into the others Heads L. C. Justice Look you Mr. Attorney We will not now inquire into that Gentlemen of the Jury you seem dissatisfied in this matter and desire the opinion of the Court in it whether you may lawfully proceed to find this Indictment or not We did hear yesterday of some scruples you made to my Brother Jones when you were Sworn and he sat in Court to give you the Charge which he thought not fit then to Answer but left it till to day truely we would have all things fairly and clearly done that we may understand how we go all along in this matter Your scruple is this Here was you say an Impeachment offered against Fitz-Harris by the Commons to the Lords and that Impeachment was of High-Treason which was not received and thereupon there was a Vote of the House of Commons that he should not be tryed by any other Inferior Court You desire now to know whether you may inquire concerning this Treason notwithstanding these things that have passed thus Mr. Godfrey Yes My Lord. L. C. Justice We are very ready and willing to satisfy any of the King s Subjects in any matters in Judgment before us that they may see there shall be nothing but fair proceedings in all Cases We do tell you t is our Opinions that notwithstanding any thing of this matter that you suggest in the Case before you it is fit for
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
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
a way of proof which well stands with the rules of Law which upon the general or other collateral Issue may well be inquired of by the Jury As in an action quare canem inordacem defendens scienter retinuit Here Soienter is not directly issuable but it is proveable and must be proved upon the general Issue So in the present case the intention of the Commons upon the Issue offered by us and refused by the Attorney General might and ought and would have been proved and without doubt found by the Jury Neither is this general Impeachment such a notional thing as the other side would pretend but 't is as if they should say We do charge him to have Committed certain Crimes that are Treason Now whether the Crimes they say he had committed and for which they Impeached him are the same with those for which he is Indicted is a good and proper Issue And if it appear to the Court to be the same you will certainly your selves take off your hands from these proceedings This is all I shall say as to the Averrment And if we can well get over that I take it all the rest is well enough But again they say the Impeachment is too general and no man shall be put to answer to such a general Accusation And I say so too neither shall Fitz Harris be put to Answer to it without special Articles yet he cannot quash the Impeachment for this Cause as he might an Indictment which shews the difference betwixt an Impeachment and an Indictment which always contains the special matter and without which it might be quasht and made no Record But hereby the Law of Parliament such general Impeachments are held good And Articles are usually brought in afterwards and after those additional Articles which cannot be in the course and way of Indictment and therefore we must take the Impeachment as we find it and since it stands against us as a Record though this general we may and must Plead it in the same generallity having no way to make it no Record as we have in case of such a general Indictment So then this being an Impeachment according to the Course of Parliament it is well lodged in the House of Lords where it only ought to be Tryed and we must Plead it as we may and as we find the Case to be And having averred the Crimes to be the same we have done what we could and therefore Enough And that a general Impeachment without Articles is a Bar to any Indictment for the same matter was resolved by all the Judges as I am informed in the Case of the Lords in the Tower who were all Indicted for Treason either in the Kings Bench or before Commissioners of Oyer and Terminer And afterwards 5. Dec. 78. generally Impeached before the Lords in Parliament and no Articles exhibited till 3. April 79. And yet in the mean time it was resolved at the Council Table by all the Judges there attending that after the general Impeachment before Articles they could not be proceeded against upon those Indictments though the Parliament wherein they were Impeached was dissolved And that was a stronger Case than this of Fitz Harris For there the Inferiour Court was first possessed of the Cause and yet the general Impeachment closed up the hands of the Court But in this Case the Superiour Court the Parliament was first possest of the Cause which cannot be taken out of their hands by the Inferiour Court There is a farther difference betwixt an Impeachment in Parliament and an Indictment That in an Indictment which is always as particular as Articles upon an Impeachment you cannot Plead auter foitz Arraigned but you must Plead either auter foitz Convict or Acquit as appears in Sir William Wishipoles Case Cron. 1. 105. But in an Impeachment in Parliament the other side will acknowledge that after Articles exhibited there can be no Proceedings upon an Indictment for the same offence although the Defendant in the Impeachment be neither Convict or Acquit Otherwise you may bring back all the Lords in the Tower to the Kings Bench to be Tryed which Mr. Attorney will not I suppose Attempt And it is observable in the Case of Sir William Wishipole That to avoid the doubt that the Party there should not be questioned both upon the Coroners Inquest and the Indictment of Murther it was Ruled by the Court that the first should be quasht as insufficient so careful were the Judges to avoid double vexation in a Case compared with this of no great import I shall say no more to the Case but only observe how scrupulous the Judges have been to touch upon a Case where they had the least suspicion or jealousie that the Parliament had or pretended to have a Jurisdiction or were possessed of the Cause I am sure I could never get any thing by any Labours of mine in those Cases But upon all such Motions they were so aware of what might be the Consequence that they would always worship afar off and would never come near the Mount They would ever retire when they came but near the Brink of this Gulf. Now my Lord If you retain this Cause in consequence you Charge your selves with the blood of this man wherein if you proceed regularly and according to Law all is well But however by over ruling his Plea you take upon you his blood one way or other Through which you must wade to come at the Cause And whether it be adviseable to come at it upon these terms I leave it to your Lordships wisdom to consider Mr. Pollexfen My Lord I shall not make any long Argument there hath been so much said before me But I would fain come to the Question if I could for I must confess afterall I cannot see what the other side make the Question Mr. Attorney was pleased to say that both for the matter and form he objected against our Plea But if for the matter it be admitted to me that an Impeachment in Parliament for the same matter will out this Court of Jurisdiction I will say nothing at all of it for I apprehend that is not then in Question Ld. Ch. Just No not at all Mr. Pollexfen Then the matter seems to be agreed and only the manner and form of the Plea are now in Question And for the manner they except to it in these particulars First they say 't is not alledged that there is any Impeachment upon Record now I confess form is a subtile matter in it self and it is easy for any man that reads other mens words and Writings if he will to make what Construction he will of them even Nolumus to be Volumus but I know the Court will not so do But for an Answer to the Objection I think it is as strongly and closely penned as I can tell how to pen any thing he was Impeached Quae quidem Impetitio c. What can that Quae quidem signifie
of the Lords in the Tower and of the Opinion in February of the Judges in their Case For in the beginning of December were those Lords Indicted and after on the 5 th of Dec. the House of Commons taking it into their Consideration that there was a Commission going out for an High Steward with an intent to bring them to Tryal before the Peers they purposely to have the Carriage and Prosecution of this great and horrid Treason and take off the Prosecution upon the Indictment do Impeach the same Lords and there the Impeachment is just the same as this in our Plea of High Treason but not of any particular Fact adding only of other Crimes and Misdemeanors which is as general as can be Now my Lord the Judges did take so much Notice of it that though the Parliament was Dissolved before the particular Articles were carryed up to set forth the particular Offence Yet in February following some of the Judges are here and they will rectifie me if I be mistaken their Opinions being asked about it at the Council Board upon the Petition of the Lords to be either Bayled or Tryed they were of Opinion that this Impeachment though thus general was so depending in Parliament that they could not be Tryed So that I think the Proceedings in Parliament are of that Nature that if you will meddle with what they do you will take notice of their Method of Proceedings as you do of other Courts Why then my Lord if this be so how is it possible for us to do better We have Pleaded as our Fact is an Impeachment of High Treason What would they have had us to do or wherein is our fault What would they have had us said We were Impeached of any High Treason so and so particularizing how can that be There is no such thing Then they would have said Nul Trel Record And we must have been Condemned for failing in our Record then indeed we had been where they would have had us But having done according to our Fact if that Fact be such as in Law will out this Court of Jurisdiction I see not how it is possible we should Plead otherwise or what Answer they will give to it My Lord I will meddle as little as I can with what hath been said they have mentioned that it is a Case of an high Nature and this Impeachment in Parliament they will look upon it as the Suit of all the people of England why then my Lord this must needs be agreed to me if this Impeachment in Parliament be in the Nature of an Appeal Surely an Appeal does suspend the Proceedings upon any Indictment for that Fact which is the Case expresly in my Lord Dyer fol. 296. Stanley was Indicted of Murder and Convicted after he was Convicted and before any Judgment the Wife of the Party Murdered brought her Appeal then came they and moved for Judgment no said the Court here is an Appeal brought and they could not go to Judgment till that Appeal was determined So the Stat. of 3. H. 7. Ca. 1. and Vaux's Case 4 Report fol. 39. an Appeal of Murder the Party Convicted before Judgment the Petitioner in the Appeal did die Then an Indictment brought and this Conviction Pleaded in Bar of that Indictment and Adjudged to be a good Plea but then there was a fault found in the Appeal upon which the Conviction on the Appeal was void in Law and they went on upon the Indictment This is to shew that if this be of the Nature of an Appeal then ought this Suit first to have its Course and Determination before your Lordship proceed on this Indictment But my Lord whether it be of this Nature or no is a matter we know where under great Controversie and whether your Lordship will interpose in that great Question or whether it comes in Judgment under this Question you will do well to Consider for 't is a matter of Parliament and determinable among themselves not in the Courts below nor have ever Inferiour Courts taken upon them to meddle with the Actions of the Superiour Courts but leave them to proceed according to their Laws and if that be done in any Case there will be as much regard had in this great Cause to the Court of Parliament as in others Besides the Authorities Cited out of my Lord Coke and others I would Cite one more and that is Cotton's Records 5 H. 4. fol. 426. the Earl of Northumberlands Case He comes and Confesses himself to be Guilty of an Offence against his Allegiance the King delivered his Petition to the Justices and would have them to Consider of it No said the Parliament 't is matter of Parliament and the Judges have nothing to do with it The Lords make a Protestation to this purpose and then they went on themselves and Adjudged it to be no Treason There is only that one Record more which has been often Cited and that is Rot. Parliamenti 11 R. 2 pars 1. N. 6. In this Parliament the Lords Spiritual and Temporal Claimed the same Priviledge My Lord I only offer these things with what my Lord Coke says hath been formerly thought prudence in the Judges to do So that I hope that if the matter be good the Form is as good as the matter can be put into and therefore we hope you will allow us the benefit of it Mr. Attorney May it please your Lordship I am of Counsel in this Case for the King and notwithstanding what hath been said I take it with Submission that this Plea is a naughty Plea as a Plea to your Jurisdiction and there is no matter disclosed therein that we can take a good Issue upon The great Substance of the Arguments of these Gentlemen Assigned of Counsel for the Prisoner is against the Prisoner For the great matter of their Arguments was lest this Gentleman should escape which Arguments in several Instances they have used to support the Plea but the Prisoner Pleads this Plea to the purpose that he might escape Therefore if these Gentlemen had taken Instructions from him surely they would have used Arguments to the same purpose that he might escape My Lord they object we have admitted here that there is an Impeachment depending that we have admitted 't is for the same matter and that we have admitted the Parliament to be in being but no Fact is admitted that is not well Pleaded Indeed if that be admitted that the Parliament is still in being then it goes very hard with us and if not so admitted the whole force of Mr. Williams his Argument falls to the ground But I say my Lord with Submission to this matter that the beginning continuance Prorogation Adjournments and Dissolution of Parliaments are of publick Cognizance and the Court ex Officio will take Notice of them so that they need not be Averred And so is the 41. of the Queen the Bishop of Norwich's Case A Private Act of
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
Commissioners they must have but a select number of Peers to be their Tryers But in none of those Cases hath any Judicial Opinion been given for the Case of 11 R. 2. first cited by Sir Fran. Winnington and then by Mr. Pollexfen a Declaration in Parliament That they proceeded according to the Law of Parliament and not according to the Common-Law nor according to the practice of Inferiour Courts that will be nothing to our purpose at all that was in case of the Lords Appellants a proceeding contrary to Magna Charta contrary to the Statute of Edw. 3. and the known Priviledge of the Subject But those proceedings had a countenance in Parliament for there was an Oath taken by all the Lords in Parliament That they would stand by the Lords Appellants And thereupon they would be controuled by none and they would not be advised by the Judges but proceed to the trying of Peers and Commoners according to their own will and pleasure And between that time of 11 R. 2. and 1 H. 4. see what havock they made by those illegal proceedings and in 1 H. 4. you will see that these very Lords were sentenced except one or two of them who were pardoned and then it was expresly resolved by Act of Parliament That no more Appeals of that nature nor any Appeals whatsoever should be any more in Parliament And if so these Gentlemen had best consider how they make an Impeachment like an Appeal for in that Statute 't is said There shall be no more Appeals And the Petition upon which this Act is founded runs thus They pray that no Impeachment or Appeal may be in Parliament But when the King came to make the Grant he grants onely for Appeals and principally to out those Lords Appellants who were condemned by that very Parliament So that 't is a very pretty matter at this time of day to liken an Impeachment to an Appeal But my Lord 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 onely the Fact that is well pleaded therefore I shall come to consider what is said by them as to the form of it They say my Lord that they have pleaded it to be secundum legem Consuetudinem Parliamenti and if that be sufficient let them have said what they would that would have healed all But I say my Lord with submission they must disclose to you what is the Law and Custom of Parliament in such case or else you must take it upon you upon your own knowledge or you cannot give Judgment 'T is very well known what this Lex Consuetudo Parliamenti is no person versed in the Records but knows it that by course of Parliament a Message goes up with a Declaration to impeach the party generally and then after there are Articles or a Bill of Impeachment produced Now till that be produced sure there is no Counsel of the other side will say that ever the party can be called to answer And because these Gentlemen do pretend to urge their knowledge herein I would observe there are three things to be considered of the Parliament the Legislative part the matters of Priviledge and the Judicial part proper to this Case For the Legislative part and matters of Priviledge both Houses do proceed onely secundum legem Consuetudinem Parliamenti but for the Judicial part does any man question but that in all times they have been guided and directed by the Statutes and Laws of the Land and have been outed of a Jurisdiction in several Cases as by the Statute of 4 Edw. 3. and 1 H. 4. And the Lords in all Writs of Errour and all matters of Judgment proceed secundum legem Terrae and so for Life and Death And there is not one Law in Westminster-hall as to matters of Judgment and another in the Court of the Lords above But I will not trouble your Lordship any farther to pursue these things But it is not sufficiently disclosed to you that there is any such thing as an Impeachment depending there 't is onely alleadged that he was impeached and so much the News-book told us that he was impeached but to infer thence that there was an Impeachment carried up and lodged for the same High-Treason is no consequence And then 't is alleadged Quae quidem Impetitio when no Impeachment is before set forth but onely that he was impeached generally And as I observed before a person might go up with a Message to impeach but that cannot be said to be an Impeachment to which the party is compelled to answer it must be an Impeachment on Record and appearing on the face of the Record for what Crime it is and so they ought to have set it forth Now that this is too general that is alleadged here I take it the Books are very full When a Record is pleaded in Bar or in Abatement the Crimes ought to be set out to appear the same and so my Lord are all the Presidents of Coke's Entries 53. Holdcroft and Burgh's Case and Watts and Brays Case in 41 and 42 of Q. Eliz. Coke's Ent. 59. Wrott and Wigg's Case 4 Rep. 45. and in Lewes and Scholastica's Case and Dives and Manning's Case The Record must be set out that the Court may judge upon it and the Record must not be tryed per Pais but by it self But for what they say plead it never so certainly there must be an Averment it must be so 't is true but that is for another purpose than they urge it The reason is because if it be for another Fact that he hath committed he may be indicted again though it be of the same nature but whether of the same nature or not of the same nature is the thing must appear upon the Record pleaded because the Court must be ascertained that it was sufficient for the party to answer to it for if it were insufficient he may be again proceeded against as if an Indictment be pleaded which was insufficient though the party pleads an Acquittal or Conviction upon it it will not avail him for the Court will proceed on the other Indictment And so is the Resolution in Vaulx's Case and in Wigg's Case though there was a Judgment given of Acquittal yet he was tryed again So that my Lord that is one great reason why it must appear that the Court may judge whether it be sufficient for the party to answer And you have now that here before you if this be such an Impeachment as they have pleaded it as this person could not answer to by any Law of Parliament or other Court then 't is not sufficient to out you of your Jurisdiction And I do think that by no Law they are or can be compellable to answer to a general Impeachment of High-Treason And to give you authority in that there are many might be cited as the Cases of my Lord
it says that Fitz-Harris was impeached of High Treason now such an Impeachment is nought for no body can be impeached of High Treason generally It ought to come and set forth the particular Acts that make up the Treason for the calling of a thing so does not make it so Therefore they that would plead this Plea must come and shew that there is an Impeachment that hath such Matter in it as does amount to Treason so that then it being a naughty Plea in the Substance of it and the end of it to put this Court out of a Jurisdiction we hope for that Reason you will not receive it Mr. Sanders One Word further if your Lordship please on the same side for the King As for this Plea that he hath pleaded here if it had had substantial Matter in Law whereupon to ground a Debate we should not press your Lordship not to receive it but we must get off of it as well as we could but when it is manifestly pleaded merely for delay and it so appears to your Lordship upon the reading of it and that there is nothing of Substance in it then we hope you will not receive it nor put Mr. Attorney to Demur to it or take Issue upon it Now for the Plea the Case is thus Here is an Indictment for Treason against Mr. Fitz-Harris for conspiring the Death of the King compassing of it and declaring such his Intention by a venemous Libel Now he comes and Pleads to out this Court of their Jurisdiction and what does he Plead He says he was formerly Impeached of High Treason in the Parliament that is all he says concerning the Impeachment then he does come and make an Averment without shewing more that this High Treason and that for which he was Impeached is the same and takes upon himself to judg whether the Court will or not and will not submit it to the Court which certainly is not the right way of Pleading If Mr. Fitz-Harris should come and Plead auter foitz acquit That he had been tryed at another time for the same Offence and acquitted he should not have said generally he had been formerly indicted and acquitted and this for the same thing But he must have shewed the Record and then averred upon the Record that it was for one and the same Crime For suppose in this Case which would have appeared perhaps to be so if he had done as he should have done shewn that there was such an Impeachment whereby he was Impeached of High Treason and which Impeachment did charge him with Treason for levying War against the King and then have made a Conclusion as he does now with an Averment that the Impeachment and the Indictment was for one and the same Offence Under favour notwithstanding his Averment the Court would have adjudged them not to be the same For if so be the Treason do not appear upon the Record to be the same his Averment will signify nothing why then his Pleading now thus insufficiently for want of the Record will be better for him than if he had pleaded it sufficiently Why then if he had now pleaded that there is a Record of the former Impeachment and set forth the Record and then averred this was for the same Mr. Attorney might take Issue either there was no such Record or said it was another Treason and traversed it that it was not for the same and so there would either have been one Tryal by the Record or the other upon the Fact by the Country But now as he hath made it this Tryal both upon the Record and upon the Fact is only tryable by the Country not by the Record For if Mr. Attorney take Issue that there is no such Record then all the Record is that he was Impeached for High Treason and then a Record of Impeachment for any High Treason would serve the turn which if it be not for the same it ought not so then the Issue of null tiel Record could not be taken Why then now my Lord as to the Fact If Mr. Attorney take Issue that it was not the same Treason then the Record must be tryed that is whether there was such a Record that does contain an Impeachment for the same Treason for which he stands indicted this I say must be tryed by the Country And if he have pleaded it so that matter of Record upon Issue must be tryed by the Country for that reason his Plea is naught and if that be so then the Court may be satisfied that 't is apparently pleaded only for delay because he would not come to the principal Matter and plead Guilty or Not Guilty which is the matter of Fact most proper for the Country I rather hope he is not Guilty than that he is but if he be Guilty 't is the most horrid venemous Treason as ever was spread abroad in any Age. And for that reason your Lordship will not give Countenance to any delay And therefore we pray the Plea may be rejejected and he may answer over Mr. Attor Gen. He hath not Pleaded prout patet per Record L. Ch. J. Yes 't is prout patet in Rotulis Parliamenti He does say that he was Impeached of High Treason by the Commons before the Lords as appears by the Records thereof amongst the Records of Parliament Mr. Attor Gen. I did not truly remember that but I beg your Pardon if it be so for I had not a view of the Plea till now But I am ready thus far to satisfy the Court 't is a pure false and frivolous Plea And then with Submission I offer it to your Consideration whether you will give any time or presently reject it L. Ch. J. We will give them no time that is sure But the Question is whether time should not be taken not in Favour of the Prisoner but of the King and of the Court Mr. Attor Gen. I am ready to make out if it were necessary that there is nothing of all this true 't is all Fiction that is pleaded and nothing in the Record to warrant it I have a Copy of the whole Journal and of the Transactions in the House of Lords the Book is close by and ready to be shewn but when 't is a frivolous Plea I hope there will be no need of that trouble L. Ch. J. But Mr. Attorney Whether we can take notice of the Journal Book now you had best consider as this Case stands Mr. Attor Gen. They ought to have it here ready they ought to have it here in poigne Mr. Just Jones There have been very many good Arguments urged by you upon which perhaps the Plea will be judged insufficient but the Question is whether you are now in any such Form as we can pass Judgment upon this Plea or no Therefore it being offered to you to consider of it what you will do in it sure it is reasonable you should consider of it and when you are
agreed then you may ask our Judgment L. Ch. J. We cannot put you to it to give a final Answer to bind the King therefore let it stand as it is we will consider of it Mr. Attor Gen. Then my Lord I 'le Demur immediately Mr. Sol. Gen. And we pray they may joyn in Demurrer immediately Mr. Serj. Jefferies If they do not mean it for delay now Mr. Attorney hath demurred I suppose they will joyn in Demurrer immediately Then the Clerk of the Crown drew up a general Demurrer which Mr. Attorney Signed and it was read in the Court by the Clerk of the Crown Mr. Attor Gen. We pray they may joyn in Demurrer Mr. Williams My Lord We that are assigned of Counsel for this Gentleman the Prisoner at the Bar that your Lordship may be satisfied and all that hear us that we do not design or desire to delay one Minute in this Cause do declare that we will joyn in Demurrer with them immediately Then the Clerk drew up the Joynder in Demurrer which being Signed by the four Gentlemen of Counsel with Mr. Fitz-Harris was also read in Court Mr. Attor Gen. MY Lord I pray your Judgment here is an Indictment for framing a Treasonable Libel Mr. Williams My Lord we hope we shall not be put Mr. Attor Gen. Pray Sir hear what I pray My Lord I desire your Judgment that the Plea may stand over-ruled for a plain fatal Error in it This is a particular Indictment for the framing a most pernicious scandalous Libel against the King and the Government for Treason in that particular And I think there is no Person does doubt but that this is a Matter within the Jurisdiction of this Court to try There is no difficulty in that What do they do to out this Jurisdiction They come and Plead that Fitz-Harris was Impeached de alta proditione that 's all they plead of High Treason in general to out the Court of a Jurisdiction of a particular Treason for framing a malitious trayterous Libel And this is a particular Treason upon the Statute of the 13 th of this King Now they have pleaded no particular Treason upon that Statute they were Impeached for nor upon the Statute of the 25 th of Edw. the 3 d which hath a general Clause of a Declaratory Power and it may be he was Impeached upon that and we shall not intend it otherwise that being the general Law the other but a particular Law for this Kings Life Now in all Pleas to the Jurisdiction they ought to be the strictest and most certain of any Pleas whatsoever And as I offered before to you so I do now again they ought to be ready with the Record to justify their Plea but this in short I insist upon that to out a Court of its Jurisdiction for a particular Treason 't is not a good Plea by saying he was Impeached or Indicted generally of High Treason and no Averment can possibly help it For it appears by the Impeachment 't is not for the same and 't is rather to be intended that it was not but the Impeachment being general that they went upon a Declaratory Power in the Statute of the 25 th of Edw. the 3 d which reserves to them the Power of declaring Treason at large and not upon that which may be tryed here in an Inferiour Court upon a particular Statute I say my Lord they ought to have pleaded it certainly which they having not done 't is Fatal and I pray your Judgment upon it and I hope they are ready to make good their Plea Mr. Sol. Gen. My Lord That that we do say to it is That this Plea is neither good in Matter nor Form and if it had been pleaded never so formally perhaps we would have demurred to it But as now it is pleaded it is not Formal and therefore we pray it may be over-ruled The Exception we take to it in point of Form we think is Fatal for there is no Man that pleads an Indictment or an Impeachment in another Court but must set forth the Indictment in the Plea which is not done in this Case and we take that to be fatal to it For a Man that will plead auter foitz acquit must set forth the Indictment and all the Proceedings of the Court upon that Indictment this is the constant pleading in all Cases and particularly in Vaux's Case the 4 th Report who ever will plead auter foitz acquit must set forth the Record before it will require an Answer to be given to it L. Ch. J. What do you say to it Gentlemen for the maintaining of your Plea Mr. Williams This is that we say my Lord We hope your Lordship and the Court in this Case will not tye us up presently to come and argue this Matter One thing I would mention because it hath been said there was never such a Precedent I think to this Purpose the Precedent of Elliot's Case is very full in it Mr. Attorney is pleased to say he never found that any Plea to the Jurisdiction did require a Demurrer but was over-ruled or allowed by the Court presently But that Case is plain to the contrary upon that very Matter It was an Indictment brought against Elliot for some Misdemeanours committed by him in the House of Commons this being pleaded to the Jurisdiction of the Court the Attorney General at that time said it was not to be received that was the Matter he insisted on then that should be rejected but the Court did then as you do now over-rule the Attorney in it and put him to demur L. Ch. J. We have done the same for you Mr. Williams Then my Lord here is a Precedent that Mr. Attorney hath not seen Now for time the Court in that Case did not tye the Counsel up to argue the Plea presently but gave them time till the next Term. We ask not so hard a thing of the Court as so long a time in this Case only here is a Man's Life in Question 't is indeed for Treason and so it is of Consequence to the King and there is also the Priviledg of Parliament consequently concerned in it What time your Lordship and the Court shall think reasonable for us to be ready in we leave it to your Lordship we design not to delay at all only we desire a reasonable time Your Lordship did in the Case of Plunket give him time for his Tryal till next Term which is as high a Treason as this I am sure L. Ch. J. You would have People think you have strange measure in this Case that you have not the same time given to you that was given to Plunket Pray consider you object these things as tho the Court were hard upon you to tye you up in point of time Is your Case like Plunket's pray give us leave to clear our Accounts as we go along he is brought from Ireland hither is Indicted for what he did in
the Prisoner stands Impeached by the Commons of England in Parliament Assembled of High Treason Secondly That the Impeachment thus made by the Commons in the Name of themselves and of all the Commons of England before the Lords in Parliament for Treason is now in being Thirdly Which I omitted in the opening of the Plea that this was done sed in Legem Cons Parliamenti and being so remains in plenis suis Robore Effectu And more particularly this Plea does refer to the Record for the Parts and Circumstances of the Impeachment prout patet per Record inde inter c. So that it does refer the Impeachment it self to the Record and tells you this is among the other Records of that Parliament all this is admitted by the Plea Fourthly And moreover that this Treason for which he stands Impeached before the Lords and the Treason for which he stands Indicted before this Court are one and the same Treason and no way diverse and so they are the same numerical thing and there is no manner of Difference And that this Person Fitz-Harris now Indicted and the Fitz-Harris In peached are one and the same Person and no way diverse And withal my Lord it appears plainly upon the Record that this Impeachment was depending before the Indictment found for the Parliament was the 21 st of March and it appears by the Record this is only an Indictment of this Term. And another thing I must entreat you to observe my Lord it does not appear but that this Parliament is still in being for any thing to the contrary in the Record and as I take the Case then it must be admitted so to be So then I take the Plea to be in substance thus though Mr. Attorney was pleased to except to both the substance and the form but in substance the Case is thus Here is a Person Impeached in Parliament by the Commons in Parliament for High Treason before the Lords in Parliament and for ought appears that Parliament still in being and this impeachment still depending Then here is an Indictment for that very Treason whether your Lordship now will think fit in this Court to proceed upon that Indictment is the substance of the Case I shall speak to the form by and by My Lord by the way I think it will not be denyed but that the Commons in Parliament may Impeach any Commoner of Treason before the Lords in Parliament I take that to be admitted And I do not find that Mr. Attorney denys it or makes any doubt of that for I think that was the Case of Tresilian and Belknapp who were Impeached in Parliament by the Commons before the Lords I am sure my Lord Chief Justice Vaughan does in his Reports in Bushell's Case say so and upon that Impeachment of the Commons one of them was executed and the other banished in Parliament My Lord I cite it not merily but I cite it as Authority Indeed I do not go so far as to cite the Parliament Roll it was in the time of Rich. the 2. I have not seen the Roll of late truly but I am sure 't is upon the Roll and there 't is to be found Since then Impeachments of Commoners will lye in Parliament here then My Lord will be the Question whether this Court may proceed upon an Indictment for the same offence the Parliament was for And here I shall distinguish upon Mr. Attorney he does allow the Parliament to be a superior Court but admitting that he says though it be so yet the inferiour Court having Original Jurisdiction of the Person and the Cause it may proceed notwithstanding an Indictment in the Superior Court And Ergo he does inferr that this Court may proceed upon an Indictment notwithstanding an Impeachment in Parliament My Lord I will compare a little the Case of an Indictment and an Impeachment and shew you how manifestly they differ I do take the Case of an Impeachment not to be the Case of an Indictment and so the Principle that Mr. Attorney hath taken is wrong and the ground of that Argument wrong I cannot say 't is like the Case of an Appeal but I may say the Case of an Appeal is like the Case of an Impeachment For in an Appeal of Murder though the Indictment be Capital and the same that is given upon Criminals prosecuted for the King yet it is at the suit of the party as in this Case 't is at the suit of the Commons and so 't is an intimation of and Analogical to and bears the resemblance of an Impeachment in Parliament I will not compare an Impeachment to an Appeal but I will say an Appeal imitates an Impeachment And 't is as plain as can be because Appeals are proper to Courts in Westminster-Hall and 't is at the suit of the party the Prosecution and all the Process is ad instantiam partis so is an Impeachment at the suit of the Commons An Indictment is found upon the presentment of a Grand Jury who are Sworn ad inquirendum pro Domino Rege pro Corpore Com. And 't is a mistake in the form when 't is said pro Corpore Com. for it is not for the King and the body of the County but for the King for the body of the County But now an Impeachment in Parliament is otherwise 't is not in the Name of the King but in the Name of the Commons in Parliament and of all the Commons in England wherein it suites with an Appeal which is at the suit of the party so that 't is like an Appeal and not like an Indictment an Indictment is for the King an Impeachment for the people And as it is in its nature and constitution different so 't is in the prosecution also for that is by the Commons of England they are the prosecutors in effect but now in all Indictments they are prosecuted always by the Kings Attorney or by some person in the name of the King We are now arguing upon the Methods and forms of Parliament therefore I must crave leave to insist upon those Methods more particularly The Commons they bring up the Impeachment to the Lords the Commons they prosecute the Impeachment they manage the Evidence upon the Tryal and when the Lords have considered of it and have found the fact the Commons come and demand Judgment and Judgment is given at the Prayer of the Commons and no otherwise and there are no proceedings by the Attorneys Indeed there have been attempts by Attorneys to prosecute persons in Parliament by exhibiting Informations in the Parliament but what success they have had I leave to them to consider that are concerned and have read the Rolls of Parliament But it is not safe to alter the old ways of Parliament therefore I take it under Correction that it is out of the road of Comparisons when they will compare an Indictment and an Impeachment together for they do not agree
is in Croke Car. I confess 't is not in the first Impression but it is in the 2. Edition that I have and these are the expressions in it Lord Chief Justice What Case is that Mr. Williams 'T is in Croke Car. but the Reversal was in 19 of this King Lord Chief Justice Was the judgment given do you say 19. of this King Can a Case of that time be reported in Croke Mr. Williams I don't say so absurd a thing If your Lordship will have patience to hear me I 'le tell you what I say My Book which is the 2. Impression of Croke reflecting upon that Case in 5 Caroli does publish the Votes of the House of Commons about it and the Reversal of the judgment in the 19. of this King There the proceeding is this Information is given to the House of Commons that there was such a Case published which did Derogate much from the priviledge of Parliament invading the Liberty of speech and the House of Commons considering the Consequence ordered the book to be sent for and read and taken into Consideration and debated and upon Debate the House came to this resolution That the judgment against Elliott and others is an illegal judgment and against the freedom and Liberty of speech and this Vote they send up to the Lords where 't is confirmed and resolved in agreement with the Vote of the Commons And by the way in Answer to a Paper that is commonly spread about by the name of the Observator I say the Commons come to a Resolution and pass a Vote which is not indeed a Law and when they have done that they may transmit their opinions to the Lords and desire them to concur then the Lords and Commons have a Conference upon it and at the Conference the Commons reasons are delivered which the Lords take up with them to their House and debate them Then they come to a Resolution to agree with the Commons Afterwards upon this Resolution of both Houses they go regularly to work by Writ of Error to reverse the judgement And if it should fall out in this Case that your Lordship should give judgment against the Plea and this person should be obstinate and not plead over and thereupon your Lordship give judgment of death upon him it may come to be a very hard Case if a Writ of Error should be brought in Parliament to reverse this judgment and it should be reversed when the party is dead Therefore it will be of great Consequence in that particular My Lord I 'le mind you of one old Case it was 20 of Ri. 2. a person there presents a Petition to the Commons in Parliament and it seems there was something suggested in the Petition which did amount to High Treason as there may be some Petition or some Complaint against a great Minister that may contain an Insinuation as it were of High Treason he was indicted out of Parliament for High Treason and was found Guilty and by the grace of the Prince he was pardoned but because the Commons would not lye under that Precedent of an Invasion of their Priviledge though he was a person without doors that prepared the Petition and no more hurt done to him but the prosecution he being pardoned the judgment was voided Lord Chief Justice Where is that Authority Mr. Williams 20. Ri. 2. Ro. Parl. 12. And you will find it in the Argument of Selden's Case published in Rushworth's Collections fol. 47. and 48. And now My Lord I have done with the substance of the Case with my reasons for the matter and for the form In this Case here is the Life of a person before you here is the right of the Commons to Impeach in Parliament before you here is the Judicature of the Lords to determine that Impeachment before you here is the Method and proceedings of Parliament before you and how far you will lay your hands upon this Case thus circumstantiated we must submit to you but I hope you will proceed no further on the Indictment Lord Ch. Just Pray Gentlemen let us a little direct you not to spend our time about that which is not to the purpose or that is not in the Case here is nothing of the Commons Right to Impeach in Parliament before us nor of the Lords Jurisdiction nor the Methods of Parliament in this Case they are things quite foreign to the Case and the matter in hand which is whether this Plea as thus pleaded be sufficient to protect the Prisoner from being questioned in this Court for the Treasonable matter in this Indictment before us Therefore you ought not to spend time in things that are not before us to be considered being out of the Case For we have nothing to do with any Priviledge of Parliament or of either of the Houses here at this time Mr. Justice Jones And Gentlemen there is nothing at all here of any fact done in Parliament that can be insisted on here nor is there any Complaint against Mr. Fitz Harris for any thing he hath done in Parliament All Mr Williams Precedents run to that but this is for a thing done without doors Lord Chief Justice We speak to you to come to the point which is the duty of all Courts to keep Counsel to the points before them The Sole matter before us is whether this be a good Plea to Ouste this Court of a Jurisdiction which otherwise unquestionably we have of this matter Mr. Williams 'T is a hard matter for the Barr to answer the Bench My Lord. Sr. Fra. Wnning My Lord I shall pursue your direction as well as my understanding will give me leave and save your time as much as I can but the Court having assigned us of Counsel you will give us leave to use our discretion keeping as near as we can to the points of the Case and to the Pleading But if upon the reasoning of this Case other Parliament Cases fall in I hope you will give me leave to cite them for maintaining our Plea The Plea here is to the Jurisdiction and consists of two parts first matter of Record which is that an Impeachment is depending in the House of Lords for so it must be taken upon the pleading as I shall manifestly prove the second is matter in pais viz. the Averment that the Impeachment and Indictment are for one and the same Treason and the Plea is made up of these 2 parts together with an Averment that the person is the same The Kings Attorney hath been pleased to Demur generally to us and I am sure that if our Plea be well and formally pleaded all the matter of fact is confessed by the Demurrer Mr. Attorney did to my apprehension make but one Objection the other day and he still insists upon it That here is a Record too generally pleaded and they compare it to the common Case of an auter foitz acquit upon another Indictment but I hope to make it
they have denied to answer when their Advice has been demanded and insisted upon it that they were not proper Judges of such matters as in 31 H 〈◊〉 〈◊〉 Par. N. 26. For there among other things the Judges were demand 〈◊〉 â—…ether the Speaker of the House during the Adjournment of Parliament might be arrested they desired to be excused from giving any opinion for said they in this great matter they ought not interpose it being a matter of Parliament In the great Council primo secundo Jacobi about the Union of both Kingdoms the Judges refused to give their opinions upon several Questions put to them desiring to be excused for that such things did not belong to them but were matters fit for Parliament only My meaning is to infer from hence that since it is pleaded here to be according to the Law and course of Parliaments and Mr. Attorney hath acknowledged it that now your Lordship is foreclosed from further meddling with this Case it appearing upon record to be a matter whereof you cannot judge But the objection is that admit the Impeachment should be taken to be according to the course of Parliament yet it is so general that the Court cannot judge upon it I answer that 't is evident the Impeachment was not for nothing 't is most certainly to be presumed that such a body of men as the House of Commons would not Impeach a man for no Crime Fitz Harris Avers by his Plea that it was for the same Treason for which the Jury have found this Bill against him Now this Averment makes the matter as clear to the Court as if the Impeachment had mentioned the particular Treason Every days Experience shews that Averments which are consistent with the Record are good and are of necessity to clear the Fact to the Court so that the Judges may give a judgment upon it If the Defendant will plead a Recovery in a formal action in bar to an action of Debt or other action it is not enough for him to set out the Record he must Aver also that the Cauuses of the action are the same and that it is the same person who is mentioned in one Record and in the other Records and this shews that the most special and particular are of no use without Averments My Lord there is a Case that I find directly to this purpose which goes further than the Case I did but now put and that is 26. Assiz pl. 15. It is also mentioned in Stamf. Pla. Cor. 105. Where a man was indicted for the Murder of I. S. and he pleads a Record of acquittal where he was indicted for the Murder of I. N. But he Avers that I. S. in this Indictment is the same person with I. N. in the other Indictment and that was adjuged a good Plea and the party was acquitted though the Averment there seemed to be a contradiction to the Record This makes it clear that if an Averment may consist with the Record the Law will allow it In Mores Rep. 823. Pl. 1112. The King against Howard it is said that if an Act of Parliament be certified into Chancery no Averment lies to say this is no Act of Parliament because the Commons did not assent to it but if it appears in the Body of the Act that the Commons did not assent as if it was ordained by the King and Lords and without mentioning any assent of the Commons There it may be Aver'd to be no Act for this being a matter consistent with the Record is Averrable And so it is agreed in 33 H. 6. fol. 18. Pilkingtons Case Now Mr. Attorney has his Election here as it is in all such Cases either to plead Null tiel Record and then we must have produced it and if we had fail'd it had been against us as to the whole Plea Or if he would not deny the Record as indeed he could not 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 be true that he was Impeached for the same Crime and that he is the same person and now it is plain to your Lordship that I stated the Question right at first My Lord I shall cite you one Precedent out of Rast Ent. fol. 384. and 385. Where a man was Indicted and acquitted before certain Justices and being Indicted de novo Lord Chief Justice It is Title Gaole delivery is it not Sir Fran. Win. Yes My Lord it is And he pleads that he was Indicted coram aliis Justitiarlis for the same fellony and upon this Plea the entry is made Quia testatum est hic in Cur. in praefatâ—s Justiciarios that the said party was acquitted of the fellony in manner and form as he had alledged in his Plea Therefore 't is adjudged that he should be discharged and go without day My Lord I do not altogether rely upon this Precedent for Law but I find it in that book Now My Lord I shall offer some Reasons in general First that when once the Commons in Parliament in the name of themselves and of all the Commons of England have lodged an Impeachment against any man it seems to me against natural Justice that should ever any Commoners afterwards come to try or judge that man for that fact I speak this because every man in England that is a Commoner is a party to the accusation and so we have pleaded by such an Impeachment a man is subjected to another sort of Tryal Magna Charta says that every man shall be tryed by his Peers or by the Law of the Land And by the Law of the Land there are several sorts of Tryal some by Juries others not by Juries This is one of those sorts where the Tryal is by the Law of the Land but not by his Peers for it would be hard that any man should come to Try or to give judgement upon a person who hath been his accuser before And in effect hath already given his judgment that he is Guilty by the accusation of him and so stands not indifferent By this means the Tryal by Jury is gone And the Lords who are the Peers of the Realm are Judges in point of fact as well as Law Here is an enormous offence against which all the Nation cryes for so they do in the Impeachment Then says the Law it is not fit that you should try him who are parties but the Lords are the proper Judges they shall Try him per testes and the Commoners may come in as Witnesses but not as Judges My Lord another reason is this that if an Appeal of death or any other Appeal were depending before the Statute of 3 H. 7. cap. 1. The King could not proceed upon an Indictment for the same fact because the King as the Common parent does only take care that such Offenders should not go away
that we have not set forth actually that there was any Impeachment I do confess I was a little startled at it for the words of the Plea are that Edward Fitz-Harris by the Knights Citizens and Burgesses was Impeached which Impeachment is in force I do not know how in the world we could have thought of more express words than to say he was Impeached and that that Impeachment is in full force as appears by the Record For the other Objection the other day for we would mention all how little soever they deserve an answer that the King may chuse in what Court he will sue it is agreed when it is at his own suit but this is not so but at the Commons suit and can be no where else prosecuted than where it now depends This is the Method and Course of Parliaments we say and that the Method and Course of Parliaments is the Law of the Land your Lordship will take notice that it is so To conclude as this Plea now stands the Demurrer confessing the matter of it it cannot be over-ruled without deciding whether the Lords can proceed upon such General Impeachments and whether the Commons can Impeach in such a General way We submit the whole to your judgment it is a Case deserves great Consideration as being of great weight and Moment and highly concerns the Jurisdiction of the Lords the Priviledges of the Commons and the Rights of all the people of England Mr. Wallop May it please your Lordship There are in this Plea three Principal Parts upon which it turns which are expresly alledged First That Fitz-Harris before the Indictment was according to the Law and Custom of Parliament impeached of High Treason and this I humbly conceive is confessed by Mr. Attorney upon the Demurrer The Second thing is That this Impeachment be it as it will general or particular does remain in full force and vertue This is plainly alledged and demurred to and so confessed by Mr. Attorney for all things well alledged and pleaded are confessed by the Demurrer The Third great Point and Hinge upon which it turns is this That the High Treason mentioned in the Indictment and the High Treason for which he was Impeached in the House of Lords is one and the same Treason This we have plainly averred and this Mr. Attorney hath likewise by his Demurrer plainly confessed as we humbly conceive For the two former Points there is no difficulty in them and therefore I shall pass them over 'T is this third matter which I take to be the only point in the Case and if we have well averred it and can by Law be let into such an Averrment then I hope your Lordship and this Court will not pretend to go on in this Case They Object and say because he is Impeached of High Treason generally without naming any particular Treason that cannot be averred to be the same and a Demurrer does never confess the truth of that which by Law cannot be said but if it may be said and is said plainly then the Demurrer confesses it My Lord I humbly conceive this matter is well averrable and we have taken a good Averrment I grant that a repugnant and an impossible Averrment cannot be taken as to averr a Horse to be a Sheep which is apparently repugnant and impossible and in that Case a Demurrer can never confess the truth of that which appears impossible to be true But My Lord if there be no Impossibility nor Repugnancy nor Contradiction in the Averrment between the matters that are averred to be the same as there is not between that which is but generally expressed and that which is more specially alledged where all may well stand together and the one includes the other and needs only some farther explanation it is not only allowable to avert it but most proper and in such case only necessary For quod constat claâ—â—â—â—â—â— debet verisicari in this Case it is not necessary that it should appear to the Court upon the view of the Indictment and Impeachment that the matter contained in both is the same but it is sufficient that it be proveable upon an Issue to be taken And so much is admitted by the Judges in Sparries Case Co. 5. rep 51. that if there be convenient certainty which may be put in Issue it is sufficient and consequently not necessary to appear at the first but upon the event of the issue afterwards to be tryed And if they intend it otherwise I confess I understand them not It is true it must appear to the Court either at the first opening or upon an Issue subsequent to be found And My Lord if this matter may appear at first or at last and the thing is possible to be proved then we are well enough In Corbet and Barnes Case in the first Croke fol. 320. a Battery supposed to be in London and a Battery supposed to be in Herefordshire were averred to be one and the same Battery which naturally is impossible yet being transitory and therefore supposable to be done in any County such an averrment is allowable though it seemed contradictory and could not appear to the Court by comparing the several declarations to be any way the same And there being a Demurrer for that Cause in that Case the truth of the averrment was ruled to be confessed by the Demurrer And so hereby the Demurrer the truth of the suggestion that the Treason in the Impeachment and the Treason in the Indictment is one and the same is confessed By taking this Averrment we offer them here a fair Issue an Issue of Fact tryable by a Jury wherein the Attorney General might have joined with us if he had pleased but refusing that and having demurred and thereby confessed what we have alledged it must be taken to be true as if found by a Jury And My Lord That this matter is properly averrable and tryable I think 't is plain it being a Question of Fact which is properly triable by the Countrey and if they had taken Issue upon that we might have gone to a Jury where the matter would have been easily proved For upon Evidence given the Jury might fairly take into consideration the reading of this very numerical Libel set forth in the Indictment and the particular and special debates of the House of Commons thereupon And that upon those very Debates the House voted that Fitz-Harris should be Impeached for matters contained in that Libel And that upon those Votes the Impeachment was carried up to the Lords This is Evidence sufficient that the House of Commons did intend to accuse him of the same Treason contained in the Indictment which proves the Issue that is that the Treason contained in the Impeachment is the same with that contained in the Indictment neither is this to put the Intention of the mind or secret thoughts of the heart in Issue which is against the rules of Law but to put them into
but the Impeachment that was just mentioned before But what they mean by this to say this is not the same Impeachment when the Words are positive that 't is the same I must confess I cannot Fathom My Lord there was another thing spoken the last day but they have not mentioned it now if there be any thing stirred in it I hope your Lordship will be pleased to hear us before you give your Judgment in it That it was not said to be sub pede sigilâ—i but I know they won't insist upon it therefore I say nothing to that But the great Question now is whether or no this be not too general the alledging that he was Impeached in Parliament and not saying how or for what Crime tho there be an Averment afterwards that 't is for the said Crime Whether this be not so general as that therefore this Plea should be naught First for this of the Averment I take it with submission let the Crimes be never so particularly specified in the Record that is pleaded and in that upon which the party is brought in Judicature yet always there must be an Averment and that Averment is so much the substantial part of the Plea That let the matter never somuch appear to be the same without an Averment it would be naught And it must come to be tryed per paâ—â— whether the offence be the same or not for if a man plead one Indictment for the murder of I. S. to another Indictment for the murder of I. S. tho' they bear the same Name he must Aver they are one and the same Person For else Non constat to the Court but there may be two I. S. Therefore all Averments are still the substance of the Plea to bring the Identity of the matter into Judgment and are to be tryed by the Country so then the Objection to the Generality is not an Objection to the substance but rather an Objection to the form on their side Because the substance is alledged in the Plea that it is for the same Treason which substance if Mr. Attorney had thought not fit to have demurred to but taken Issue on must have been tryed per pais Having thus spoken to the Averment My Lord Let me speak to the general Allegation that he was Impeached for Treason and not saying particularly what the fact was My Lord If they admit the Law that an Impeachment in Parliament does suspend or take away the Jurisdiction of this Court then they have admitted a great part of the fact and then the matter in Question will be what Impeachment in Parliament it is that will take away the Jurisdiction of the Court and there can be but two sorts the one at large where the whole Offence is specified the other not at large but only in general Words the Knights Citizens and Burgesses in Parliament Assembled in the Name of themselves and of all the Commons of England do Impeach such an one of High Treason Now my Lord if so be such Impeachment in Parliament be a good Impeachment then have We I think the most plain Case pleaded that can be as plain as the Fact that this is an Impeachment in Parliament and then this Court is outed of its Jurisdiction They that have gone before have said which I must pray your Lordship to remember That the Court and we are to take notice of the proceedings in other Courts as other Courts are bound to take notice of the proceedings of this Then I would suppose in other familiar Cases there is generally as 't is true in Sparry's Case the Writ or the Declaration which does in all civil Causes set forth the particularity of the thing in Question yet in some Cases we are sure it does not do so but the Course and practice of some Courts admits general proceedings Now where-ever that is so the party cannot mend himself by making their Course otherwise than it is For he must not say it is more particular than the Course of the Courrt does make it Therefore he hath no other way by the Law to bring his matter on and help himself but by an Averment that 't is the same I will suppose a Case of such a Nature as this a man brings an Account in London upon Concessit Solvere and he does not particularize in the Count any thing what or how his Debt did arise But after he brings another Account or delivery aspecial Declaration in an Account of Debt shall not I because the first Declaration is in general Words Aver that this is the same matter that he sued for by the Concessit Solvere which he now sues for in this particular Declaration Or suppose a man in this Court does bring an Account for divers wares and Merchandises sold and does not express any particulars but that he was indebted in general Words for Wares sold and afterwards he comes and brings another Account and says it is for such and such Wares so much for Cloth so much for Wine c. tho' his first Declaration be in general not expressing what the Wares were and the last is particular shall not I come and plead in Abatement to the second Declaration that the first and second were for one and the same thing Suppose again an Indictment of Barrelry be found against a man which is an Offence that is only general and hath no particulars alledged in the Indictment Should not a man that is the second time Indicted come and say this is one and the same My Lord under favour in all these and such like Cases the Law must be Govern'd by its own proceedings and take notice of the Nature of the things depending before the Court. And if so be upon Consideration of the Nature of the thing there is as much of certainty set forth as the Case will admit and is possible to be had we must permit the party to plead as he can and help himself by the Averment Then my Lord the Question is whether an Impeachment generally in Parliament without particularly setting forth for what be a good Impeachment there or no. If they say it is not then the bottom of the Plea is naught and all is quite gone but if they say it is then I have Pleaded my matter as it is For I cannot say that that is particular or make that particular that is not and I have done all that is possible for me to do in my Case I have Pleaded what is in the Record and as 't is in the Record from which my Plea must not vary and I have Averred 'tis for the same matter and you have Confessed it by the Demurrer My Lord I would not intangle the Question but I must Confess I do not see how they can extricate themselves out of this Dilemma if they do admit a General Impeachment is a good Impeachment Then there are fresh Instances of this considerable in the Case as that which hath been particularized
Stafford and the other Lords in the Tower and so is the ancient course of Parliament with submission I will be bold to say the Impeachments are all so that ever I met with And it appears by them that they all conclude contra Coronam dignitatem Regis in the form of Indictments laying some Overt-Acts and the special particular Crimes for which the person is impeached as Overt-Acts for Treason required by the Statute of 25 Edw. 3. And I hope they will not say That without an Overt-Act laid in the Impeachment the Impeachment can be good If then this be so general that it cannot make the Crime appear to the Court and is so insufficient that the Court cannot give Judgment I take it you will go on upon the Indictment which chargeth him with a particular Crime My Lord Mr. Pollexfen does put the case of Barretry where such Averment is allowable but that is a special certain and particular Crime but High-Treason is â—ot so there are abundance of special sorts of High-Treason there is but one sort of Barretry and there are no sub-divisions therefore there is nothing to be averred but the special facts that make that Barretry Then there was another Authority out of the Book of Assizes cited by Sir Fra. Winnington and greatly relied upon A man is indicted for the murder of J. S. and afterwards for the murder of J. N. the former was pleaded to the second with an Averment that it is the same person that is but according to the common form of Averments to be of matter of fact For if J. S. was known as well by the name of J. N. as of J. S. the Indictment was for the murder of the same person and there 't is pure fact averred But where 't is Essential as this case is that the particular Treason do appear to say that it is the same particular Treason and to say that matter of fact aver'd shall enlarge a Record I think is impossible to be found any where And of all the Cases that I have seen or heard I confess none of the Instances come up to it For the Case in Moor King and Howard cited by Sir Francis Winnington that is an authority as expresly against him that nothing can be more For if there be an Indictment for Felony in such a particular act and then he is indicted again he cannot come and plead a general Indictment of Felony and then aver 't is for the particular Felony and so to make the fact enlarge the Record and put matter of Record to be tried by a Jury Mr. Wallop was of opinion that upon this Averment the Jury may try the Fact What a pretty case would it be that a Jury should judge upon the whole Debates of the House of Commons whether it be the same matter or no for those Debates must be given in evidence if such an issue be tried I did demur with all the care that I could to bring nothing of that in question but your Lorship knows if they have never so much in particular against a man when they come to make good their Impeachment they must ascertain it to a particular Crime and the Overt-acts must be alleadged in the Impeachment or else there is another way to hang a Subject than what is the Kings high-way all over England And admit there was an intimation of a purpose to Impeach a Message sent up and any Judgement given thereupon pray consider what may be the consequence as to the Government a very great matter depends upon this if there be any Record of that Parliament then is the French Act gone for so is the Resolution in 12 Jacobi where the Journal-book was full of proceedings yet because there was no Judgement passed nor no Record of a Judgement in a Writ of Errour they adjudged it no Session but if any Judgement had been given then it had been otherwise So that the consequences of these things are not easily seen when men debate upon touchy matters But that which is before your Lordship is this point upon the pleading and I conceive I have answered all the Presidents they have cited therefore my Lord I do take it with submission there is nothing of that matter before you concerning an Impeachment depending before the Parliament but whatsoever was done 't is so imperfectly pleaded that this Court cannot take any notice of it Mr. Soll. Gen. My Lord I shall endeavour to be short and shall confine my self because I am tender of your time to the point in Question which is whether this Plea be sufficient in point of Form There have been many things said on the other side which I must crave leave to take notice of so far onely as to shew they are not in question before you Those are what relate to the matter of the Plea for they argue 't is good both in matter and form and from the matter of the Plea they have taken occasion to debate whether a Commoner may be impeached Whether this Court hath power to judge of the priviledges and course of Parliament none of which Questions will arise upon our case now Therefore I will not now debate whether Magna Charta which hath ordained that every man shall be tried by his Peers and the Statute of 4 Edw. 3. which says that the Lords shall not be compelled nor shall have power to give Judgement upon a Commoner have sufficiently secured the Liberty of the Subject from Impeachments Nor is it the question before your Lordship whether you shall judge of any matter that is a right or priviledge of Parliament here is nothing before you that was done in Parliament but this is an Indictment for High-Treason committed by Fitz-Harris in this County Now my Lord as that is not the Question neither will it be the Question Whether an Impeachment depending in the House of Lords against a Commoner by the House of Commons will bar this Court of its Jurisdiction For though they have entred upon it and debated it at large and seemed to obviate the Objections made to that if it had been a Question as by saying that the King hath no Election because this is not the suit of the King but the suit of the Subject I will not now ex instituto argue that point but I will humbly offer a few things to your Lordships consideration and I shall take my hints from them They say the House of Commons are the grand Inquest of the Nation to enquire of Treasons and other high Crimes and they make these Presentments to the House of Lords Now when such a Presentment is made 't is worthy consideration whether it be not a Presentment for the King for an Impeachment does not conclude as an Appeal does but contra Ligeantiae suae debitum Coronam Dignitatem Domini Regis so far 't is the Kings suit In an Impeachment the Witnesses for the Prisoner are not sworn the Prisoner hath
you if you have any thing wherein you can amend it either in matter or form If you will let us know it we shall consider of it But if you have not if you abide by this Plea then we do 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 endeavoured to have them examined here are nothing to the purpose at all For plainly we do not assume to our selves a Jurisdiction to inquire of such matters for words spoken or Facts done in the Commons-House or in the Lords we call none to question here nor for any thing of that nature which takes off most of the Instances you have given but our Question is barely upon the pleading before us whether we have a sufficient pleading of such an Impeachment as can foreclose the hands of the Court And as to that we shall take some reasonable time to consider of it we will not precipitate in such a Case but deliberate well upon it before we give our Judgment Take back your Prisoner Mr. Att. Gen. Before he goes away we hope you will set a reasonable time as short as you can to have him come again for your Judgment L. C. J. Mr. Attorney we can send for him when we please to come hither by Rule you see this business is come on in the busy part of a Term and 't is impossible for the Court to attend nothing but this we will take some reasonable time Then Fitz-Harris was carried back to the Tower On Tuesday May 10. Mr. Attorney moved the Court to appoint a day for their Judgment on the Plea and for Fitz-Harris to be brought up which they appointed to be the next morning And accordingly on Wednesday morning May. 11. he was brought from the Tower to Westminster-Hall Mr. Att. Gen. My Lord I pray that Fitz-harris may be brought to the Barr. L. C. J. Where is the Lieutenant of the Tower bid him bring Fitz-harris to the Barr which was done Mr. Att. Gen. My Lord I pray your Judgment on the Plea L. C. J. Why Mr. Fitz-Harris you have been Arraigned here for High-Treason and it is for endeavouring and compassing the Kings death and other Treasons specially mentioned in this Indictment you have pleaded here to the Jurisdiction of this Court that there was an Impeachment against you by the Commons of England in Parliament before the Lords for the Crime of High-Treason and you do say that that Impeachment is yet in force and you do say by way of averment that this Treason whereof you are now Indicted and the Treason whereof you were Impeached by the Commons of England before the Lords are one and the same Treason And upon this the Attorney General for the King hath Demurred and you have joyned in Demurrer And we have here the arguments of your Counsel whom we assigned to argue it for you we have heard them at large and have considered of your Case among our selves and upon still consideration and deliberation concerning your Case and all that hath been said by your Counsel and upon conference that we have had 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 that your Plea is insufficient my Brother Dolben not being resolved but doubting concerning it And therefore the Court does order and award That you shall answer over to this Treason Cl. of Cr. Edward Fitz-Harris Hold up thy hand Mr. Fitz-Harris My Lord I desire I may have Liberty to advise with my Counsel before I plead L. C. J. Mr. Fitz-Harris When you proposed a difficulty you had in a matter of Law the Court were willing to assigne you Counsel because 't is known you cannot be a fitting person to advise your self concerning the Law But as to this we cannot assigne you Counsel 't is only a matter of Fact whether you be Guilty or not Guilty Therefore in this Case you can't have Counsel allow'd to advise you Mr. Fitz-Harris My Lord I desire before I plead or do any thing of that nature that I may make an end of my Confession before your Lordship and some of the Privy Council L. C. J. Look you Sir For that you have trifled with us already you pretended you had some scruples of Conscience and that you were now become another man and would reveal and discover the whole of this design and Plot that you are said to be Guilty of here but you have trifled several times concerning it and we can say nothing concerning that now we must now have your Plea if afterwards you have a mind to confess and be ingenious you may do it but now you must either plead or not plead Mr. Fitz-Harris My Lord I have some Witnesses a great way off and I desire time to have them ready for my defence Cl. of Cr. Edward Fitz-harris Hold up thy hand which he did Thou hast been Indicted of High-Treason upon that Indictment thou hast been Arraigned and hast Pleaded to the Jurisdiction of this Court To which Plea His Majesties Attorney-General hath Demurred and thou hast joyned therein And upon the whole matter this Court upon mature and considerate deliberation is of opinion that thou oughtest to answer Over How saist thou Art thou guilty of the High-Treason whereof thou hast been Indicted and hast been Arraigned or not Guilty Mr. Fitz-Harris Not Guilty Cl. of Cr. Cul. Prist c. How wilt thou be tryed Mr. Fitz-Harris By God and my Country Cl. of Cr. God send thee a good deliverance L. C. J. Now if you have any thing to move do it We could not hear your motion till you had pleaded for the method of the Court must be observed Mr. Fitz-Harris I have some Witnesses at a distance my Lord. L. C. J. Where are your Witnesses Mr. Fitz-Harris I have one Witness in Holland a very material one that I am much concerned to have for my Life Mr. Just Jones What is his Name Mr. Fitz-Harris His Name is Steward my Lord. L. C. J. Look you Mr. Fitz-Harris I 'le tell you reasonable time is allowed to all men to make their defence in but when a man is in Holland I know not what time you will take for that Mr. Fitz-Harris What time your Lordship thinks fit for a man to return from thence hither L. C. J. Look you Mr. Attorney Why should not we allow Mr. Fitz-Harris time for his Trial till next Term Mr. Attorn Gen. I think he hath not offered any thing to entitle him to it he doth not tell us And I would fain know what the Witnesses will prove Mr. Just Dolben It may be Mr. Attorney will confess what t is that Witness can prove Mr. Att. General For the