That if any Judge Justice or Jury proceed upon him and he found guilty that you will declare them guilty of his Murder and Betrayers of the Rights of the Commons of England Hereupon the House came to these Resolves That it is the undoubted right of the Commons in Parliament assembled to impeach before the Lords in Parliament any Peer or Commoner for Treason or any other Crime or Misdemeanour and that the Refusal of the Lords to proceed in Parliament upon such Impeachment is a denyal of Justice and a violation of the Constitution of Parliaments That in the Case of E. Fitz-Harris who by the Commons has been impeached for High Treason before the Lords with a Declaration That in convenient time they would bring up the Articles against him For the Lords to resolve that the said Fitz-Harris should be proceeded with according to the course of the Common-Law and not by way of Impeachment in Parliament is a denyal of Justice and a Violation of the Constitution of Parliaments and an Obstruction to the further discovery of the Popish Plot and of great danger to his Majesties Person and the Protestant Religion That for any Inferiour Court to proceed against him or any other Person lying under an Impeachment in Parliament for the same Crimes for which he or they stand impeached is an high breach of the Priviledge of Parliament This matter thus agitated in the House of Commons was countenanced by a Protestation of many Temporal Lords which was to this effect That in all Ages it had been an undoubted Right of the Commons to impeach before the Lords any Subject for Treasons or any other Crime whatsoever That they could not reject such Impeachments because that Suit or Complaint can be determined no where else for an Impeachment is at the Suit of the People but an Indictment is at the Suit of the King As the King may Indict at his Suit for Murther and the Heir or the Wife of the Party Murthered may bring an †Which was always to be preferred and upon notice thereof all Prosecutions at the Kings Suit were to stop till the Prosecution at the Suit of the Party was determined Appeal And the King cannot Release that Appeal nor his Indictment prevent the Proceedings in it It is an absolute denial of Justice in regard it cannot be tryed any where else The House of Peers as to Impeachments proceed by vertue of their Judicial Power and not by their Legislative and as to that act as a Court of Record and can deny Suitors especially the Commons of England that bring legal Complaint before them no more than the Judges of Westminster can deny any suite regularly commenced before them Our Law saith in the Person of the King Nulli negabimus Justitiam We will deny Justice to no single Person yet here Justice is denyed to the whole Body of the People This may be interpreted an exercise of Arbitrary Power and have an influence upon the Constitution of the English Government and be an encouragement to all Inferiour Courts to exercise the same Arbitrary Power by denying the Presentments of Grand-Juries c for which at this time the Chief Justice stands impeached in the House of Peers These Proceedings may mis-represent the House of Peers to the King and People especially at this time and the more in the particular Case of Edward Fitz-Harris who is publickly known to be concerned in vile and horrid Treasons against his Majesty and a great Conspirator in the Popish plot to Murther the King and destroy and subvert the Protestant Religion Monmouth Kent Huntington Bedford Salisbury Clare Stamford Sunderland Essex Shaftesbury Macclesfield Mordant Wharton Paget Grey of Werke Herbert of Cherbury Cornwallis Lovelace Crew This Protest was no sooner made upon Munday the 28th of March 1681 but the Parliament was instantly dissolved Well The Parliament being dismissed Fitz-Harris must be Hang'd out of the way and the Term approaching Scroggs the Chief Justice who lay under an Impeachment for Treason in Parliament is removed with marks of Favour and Respect being allowed a Pension for Life and his Son Knighted and made one of his Majesty's Learned Council and Sr Francis Pemberton being advanced to the Seat of Lord Chief Justice the Business of Fitz-Harris is brought before him and Justice Jones Justice Dolben and Justice Raymond and proceeded upon in the manner following UPon the 27th of April 1681 an Indictment for high Treason was offered to the Grand-Jury for the Hundreds of Edmonton and Gore in Middlesex against Fitz-Harris whereupon Mr Michael Godfrey the Foreman in the name of the Grand-Jury desired the opinion of the Court whether it were lawful and safe for them to proceed upon it in regard Fitz-Harris was Impeached in the late Parliament at Oxford by the House of Commons in the name of all the Commons of England Mr Attorney General then said That Mr Godfrey and two more were against accepting the Bill but the body of the Jury carryed it to hear the Evidence and that thereupon himself and Mr Solicitor went on upon the * A new way of dealing with Grand-Juries to procure the finding Bills of Indictment Evidence and spent some time in opening it to the Jury and We thought they would have found the Bill but it seems They have prevailed to put these scruples in the others heads Then The Lord Chief Justice Pemberton said your scruple is this here was an Impeachment offered against Fitz-Harris to the Lords which was not received and thereupon there was a Vote of the House of Commons that he should not be Tryed by any other Inferiour Court We do tell you 't is our Opinion that If an Indictment be exhibited to you you are bound to enquire by vertue of your Oathes you cannot nor ought to take notice of any such Impeachment nor Votes and We ought to proceed according to Justice in Cases that are brought before us This We declare as the Opinion of all the Judges of England Then the Jury went away and afterwards found the Bill Upon Saturday the 30th of April Mr Fitz-Harris was brought to the King's Bench-Bar and Arraigned upon the Indictment whereupon he offered a Plea in writing to the Jurisdiction of the Court and the Chief Justice said We do not receive such Pleading as this without a Counsels hand to it Upon which the Prisoner desired the Court to assign Sr Francis Winnington Mr Williams Mr Pollexfen and Mr Wallop for his Council which was accordingly done Upon Monday the 2d of May the four Council moved the Court to have longer time for drawing the Plea and that they might have a sight of the Indictment as necessary to the drawing it but they were opposed therein by Mr Attorney and the Court denyed both Then Sr George Treby and Mr Smith were also assigned as Council for the Prisoner at his request Upon Wednesday the 4th of May Fitz-Harris being brought from the Tower to the King's Bench-Bar
to do Justice and therefore I cheerfully leave the matter with you I am sure that if God help me and deliver me in this Exigency that it is he and you under him that preserve my Life Gentlemen The great Incertainties Improbabilities and Consequences in this case I hope will be weighed by you and make you the better to consider the proof which is made by none but such as are Strangers to me since then they know me not I hope you will weigh it before you give it against me We must all dye and I am sure it wil be no grief to you to acquit a Man that is innocent I leave it with you The Lord direct you Then Jenner the Recorder to aggravate the matter spoke thus The Treason charged on the Prisoner is of that sort that if he be guilty he will be a just example to terrifie others from doing the like for if Traytors had not persons to supply them with Money abroad it may be they would not have so much Courage to run away We have satisfied you that Sr T. A. was indicted that an Exigent was gone against him upon that account here was a Proclamation and Sr T. A. named in it and so at his rate of talking the Recorder repeated the Evidence of the Witnesses and concluded Gentlemen We think that his defence has been so little and our proof so strong that you have good ground to find him Guilty The Chief Justice then summed up the matter to the Jury in a Speech of of a vast length which was in substance this Gentlemen of the Jury This is an Indictment of high Treason against the Prisoner at the Bar and you are to try it according to your evidence The Prisoner's affirmation of his innocence is not to weigh with you Nay I must tell you I cannot but upon this occasion make a little Reflection upon several of the horrid Conspirators that did not only with as much solemnity imprecate Vengeance upon themselves if they were guilty of any Treason but thought they did God Almighty good service in that hellish Conspiracy It is not unknown one of the Persons proscribed in this Proclamation did declare they should be so far from being esteemed Traytors That they should have Trophies set up for them and all this under the pretence and enamel of Religion Nay I can cite to you an instance of another of the Conspirators that after a full and evident proof and plain Conviction of having an hand in it when he comes upon the Brink of Death and was to answer for that horrid fact before the great God he blessed Almighty God that he dyed by the hand of the Executioner with the Ax and did not dye by the Fiery Tryal He blessed God at the place of Execution that he dyed a Traytor against the King and Government rather than dyed a Martyr for his Religion I think it necessary to make some Reflection upon it when Men under the pretence of Religion are wound up to that heigth to foment Differences to disturb and distract the Government to destroy the Foundations of it to murder his sacred Majesty and his Royal Brother and to subvert our Religion and Liberty and Property and all this carried on upon pretence of doing God good service You are to go according to evidence as the Blood of a Man is precious so the Government also is a precious thing the Life of the King is a precious thing The preservation of our Religion is a precious thing and therefore due regard must be had to all of them I must tell you in this horrid Conspiracy there were several Persons that bore several parts Some that were to head and to consult there was a Council to consider Others were designed to to have a hand in the perpetrating of that horrid Villany that was intended upon the Persons of his Sacred Majesty and his Royal Brother and with them upon the Persons of all his Majesties Loyal Subjects that acted with duty as they ought to do There were others that were to be aiding and assisting as in the case of the Prisoner if you find him guilty aiding abetting assisting by Money or otherwise or harbouring any of those Persons that were concerned therein Then he recounted the Evidence given against the Prisoner and made such Remarks upon the same as he thought fit The Jury withdrew and spent two hours in consideration of the matter and then returning gave their Verdict to the disappointment and vexation of the Chief Justice Common Serjeant and others that the Prisoner was Not Guilty Mr Attorney General thereupon said My Lord tho' they have acquitted him yet the Evidence was so strong that I hope your Lorship and the Court will think fit to bind him to his good behaviour during his Life The Chief Justice answer'd Mr Attorney that is not a proper Motion at this time So the Prisoner was discharged after he had been imprisoned five Months Tho' Mr Hayes to the eternal Honour of some good Men who were upon his Jury came off with his Life he was by this Prosecution beaten out of as good and valuable a Trade as most Linnen Drapers in London had and was by consequence highly impaired in his Estate About the same time Mr Roswell a very worthy Divine was tryed for Treasonable Words in his Pulpit upon the Accusation of very vile and lewd Informers and a Surry Jury found him Guilty of high Treason upon the the most villanous and improbable evidence that had been ever given notwithstanding Sr John Talbot no Countenancer of Dissenters had appeared with great generosity and honour and testified that the most material Witness was as scandalous and infamous a Wretch as lived It was at that time given out by those who thirsted for Blood that Mr Roswel and Mr Hayes should dye together and it was upon good ground believed that the happy deliver ance of Mr Hayes did much contribute to the preservation of Mr Roswel tho' it is very probable that he had not escaped had not Sr John Talbot's worthy and most honourable detestation of that accursed Villany prompted him to repair from the Court of King's Bench to King Charles the second and to make a faithful representation of the Case to him whereby when inhumane bloody Jeffreyes came a little after in a transport of Joy to make his Report of the eminent service he and the Surry Jury had done in finding Mr Roswel guilty the King to his disappointment appeared under some reluctancy and declared that Mr Roswell should not dye And so he was most happily delivered and being by this remarkable Providence of God still alive he would at least in my opinion do a very useful and seasonable piece of service to this Age and to those which are to succeed in publishing a full Account of the whole Proceedings against him Remarks upon the Tryal of Mr Charles Bateman at the Old-Bayly Upon the 9th day of December 1685
to kill the King I take God to witness I never had any such design nor ever had a thought to take away the King's Life Neither ever had any man the impudence to propose so barbarous and base a thing to me Mr Nelthorp at his death in 1685 said I can with great comfort appeal to the great God before whose Tribunal I am to appear what I did was in the sincerity of my Heart thinking it my duty to hazard my Life for the Preservation of the Protestant Religion and the English Liberties which I thought invaded and in great danger to be lost As to the design of Assassinating or Murdering the late King or his present Majesty it was a thing I always detested and I never was in the least concerned in it Nor did I believe there was such a design I dye in Charity with all the World and can readily and heartily forgive my greatest Enemies and even those that have been the Evidence against me Mr Rouse declared that he was told that They did not intend to spill one drop of Blood and affirmed that Lee the Witness against him did by his Evidence make him the Author of the very words that came out of his the said Lee's own Mouth Mr Richard Rumbold who at his death at Edenburgh in 1685 was found to be a very brave Man most serious Christian and had been represented as the main Promoter of the Murdering design with his last breath desired all to believe his dying Words and therewith affirmed that he never directly or indirectly intended such a Villany as the death of King Charles the second and the Duke of York but declared that he abhorred the thoughts of so horrid an intention That he was sure this Truth would at the great day be manifest to all Men And he concluded that he dyed in the defence of the just Laws and Liberties of the Nation and said that for that Cause were every Hair of his Head and Beard a Life he would joyfully sacrifice them all and wisht he had a Limb for every Town in Christendom To conclude these solemn serious dying Declarations Protestations and Appeals to the heart-searching God have always out-weighed with me the Evidence of those two or three Witnesses who swore these Persons out of their Lives and by so doing saved their own And I did and do most stedfastly believe that the only Plot in that day was the same which the Almighty has at length owned and most signally prospered in the hand of our gracious August and Rightful Soveraign King William I mean the rescuing the Protestant Religion and the Laws and Liberties of England from a most impetuous Torrent of Popery and Tyranny wherewith they were very dangerously threatned And methinks it should even convert a Tory unless his Brains were pick'd out of his Shull by him who pick'd the Guineas out of his Pocket when he casts his Eye upon that apposite Emphatical Expression in the Observator vol. 2. Number 125. To deal freely with thee TRIMMER I have more Faith in the Words of one dying Traytor under the stroke of Iustice than of twenty Living Errata's PAge 34. last Line read Closet p 63 first line r and he be found p 91 line 9 dele that p 105 l 2. dele us p 151 l 25 r acquainted with p 203 l 5 for with r which p 213 l 20 for it is r its p 241 l 14 r possessed p 247 l 22 r always had p 252 l 25 r every day from that p 253 l 3 r Sr Robert p 277 l 26 r Gold-Finch p 288 l 9 r were not sent
trayterously assemble consult and agree with the Lord Brandon and other Traytors to raise Money and procure Armed Men to make a Rebellion and to seize the City and Castle of Chester with the Magazines and that upon the 27th of May he took a Journey from London to Mere to accomplish his Treasonable intentions and that upon the 4th of June he incited divers to joyn with him in his Treason To this Indictment his Lordship pleaded Not Guilty Jeffryes then addressed himself to the Lords to this effect Note my Lord Delamere was at that time in the House of Commons and a great Promoter of the Bill of Exclusion That their Lordships could not but remember the insolent Attempts made upon the unalterable Succession to the Crown under the spetious pretence of Religion by the fierce froward and Fanatical Zeal of some of the Commons which had been often found the occasion of Rebellion That that not prevailing the Chief Contrivers of that horrid Villany consulted how to gain the advantage by open force and in order thereto had several Treasonable Meetings made bold and riotous * The Duke of Monmouth's progress into Cheshire the West Progresses in several parts of the Kingdom to debauch the minds of the well-meaning tho' unwary part of the King's Subjects That God frustrated their evil purposes by bringing to Light that cursed Conspiracy against the Life of the late King and his present Majesty That one would have thought these hellish and damnable Plots could not have survived the just Condemnation and Execution of some of the †Innuendo Lord Russel Col. Sidney c. Chief Contrivers of them especially considering that no sooner the present King was seated in his Throne but he endeavoured to convince the world that he had quite forgot those impudent and abominable Indignities that had been put upon him only for being the best of Subjects and best of Brothers and also gave the most benign Assurances imaginable that he would approve himself the best of Kings And to evince the reality of his gracious Resolutions he called a Parliament and there repeated and solemnly confirmed his former Royal Declarations of having a particular care of maintaining our Established Laws and Religion And yet at that Juncture that wicked and unnatural Rebellion broke out and thereupon the Arch-Traytor Monmouth was by a Bill brought in the lower House and passed by the general consent in both Houses and I could wish my Lords for the sake of that Noble Lord at the Bar that I could say it had passed with the consent of every particular * The Lords are here told that my Lord Delamere opposed the Bill to attaint the D. of Monmouth Member of each House justly attainted of High Treason After this harangue he concluded thus My Lords what share my Lord at the Bar had in those other matters I must acquaint you To what end then was this malitious Tale told is not within the compass of this Indictment for which you are to try him for that is a Treason alledged to have been committed in the present King's Reign Then Sr Tho. Jenner the Recorder of London opened the Indictment The Attorney General then aggravated the Charge saying We crave leave to give a short Account of a former * The Plot in 1683. design Cheshire the Province of this Noble Lord was one of the Stages where that Rebellion was principally to be acted and preparatory to it great Riotous Assemblies and Tumultuous Gatherings of the People were set on foot by the Conspirators We shall prove that a little before the Rebels came over this last Summer the Duke of Monmouth dispatched one Jones into England to let his Friends know that tho' he had intended to go into Scotland and begin there he was resolved for England with this he was to acquaint some Lords particularly the Prisoner And also to acquaint them that they should have notice four or five days before of the place of his Landing and that then the Lords should repaire immediately into Cheshire there to wait for the News We shall give you an account that the late Duke of Monmouth lookt upon Cheshire as one of his main supports and upon my Lord Delamere as a principal Assistant there Jones was to communicate his Message to Captain Mathews who was to transmit it to this Lord and those concerned with him Jones arrived upon the 27th of May but Mathews nor Major Wildman to whom he was to apply in the absence of Mathews was not to be found Thereupon he sends for one Disney since executed for Treason and one Brand whom your Lordships will hear of and communicates his Message to them and they undertake to deliver it to the Persons concerned That very night My Lord this same Brand Disney met this Noble Lord and give him an account of the Message and as soon as ever he received it upon the 27th of May at ten at Night my Lord dispatches out of Town with only one Servant and two other Friends that he had pick'd up With all these Badges of Plot and Design does my Lord Delamere set out the same night Jones came to Town he chose to go all the By-Roads and went with great speed to repair into Cheshire by the name of Brown by which he was known among all his own Party by that name several of the late Duke of Monmouth's Trayterous Declarations were sent for to be sent to him or by him into Cheshire When he comes into Cheshire he actually sets about the work to put that County in a forwardness This means the impudent but ridiculous story of Saxon which could never obtain upon any but the Credulous Prosecutors of this Noble Lord who were disposed to believe any thing to assist in the Rebellion endeavours to stir up the People to joyn with him and acquaints one that he employed in that Affair that he was engaged to raise so many Thousand Men and so much Money to be ready by such a day My Lords We shall plainly shew you all this in plain proof Then Mr Attorney called their old Drudge at swearing my Lord H. of E. and demanded of him his oft repeated History of a design of an Insurrection that was to have been in the late King's time and what share Cheshire was to have in it The Lord H. told his thrid-bare history of the Plot in 1682 and 1683 but not a word of Cheshire and said that he knew nothing concerning my Lord Delamere The Lord Grey was then called and said That about the time of the contested Election of Sheriffs The Duke of Monmouth and Earl of Shaftesbury resolved that they would make what interest they could to procure a Rising in three several parts of the Kingdom at once one in Cheshire whether the Duke of Monmouth was to betake himself and there to be advised by my Lord Macclesfield my Lord Brandon my Lord Delamere that then was