the man be innocent, God forbid but he should be acquitted; but if he be guilty, God forbid he should live a minute. L. C. J. Surely you don't take the case, gentlemen, to be a case of so much difficulty, as to deserve long consideration; we did expect truly that you would have been ready to have maintained your plea. Mr. Williams. My lord, we do not desire any long time; be pleased to give us a day, or two, or three, as you please. L. C. J. It is said, it is in a case wherein the life of a man is concerned! it is true, here is the life of a man, of whom, till he be found guilty, we ought to have consideration, as we would of any other whatsoever: For we have to reason to conclude him guilty till we hear him, and we are to be indifferent till we hear the evidence; therefore notwithstanding the indictment, we ought to weigh his life as we would another man's, till he be found guilty. We in ourselves do not see there is any so great matter of necessity for time to consider of this case; yet I must tell you, since they pray it, Mr. Attorney, we are inclinable to give them a day or two's time to consider of it, and see what they can say to maintain this plea. But then gentlemen, if we do so, you must take notice we will call you to plead presently after our judgment upon the plea. Mr. Williams. My lord, we have nothing to do with the fact of this case; we are only to speak to the plea.. Serj. Maynard. Pray how then is your life in question upon the decision of this plea? L. C. J. Brother, they do not speak as to this plea, that it hazards his life, but the subjecta materia, upon the decision of it, supposing judgment be against the plea. Therefore, Mr. Attorney, we do think fit to give him till Friday morning, and that he shall be brought hither then again by the lieutenant of the Tower; then we will hear these gentlemen: and if they do not shew us any considerable matter to maintain the plea, they must expect judgment presently. Att. Gen. That certainly will be too long a time; pray, my lord, they ought to have been ready now if they will be pleased to be ready to-morrow morning, I pray it may go off to no farther time. Justice Jones. There is a necessity, my lord, I think that it should be so; for there is a long trial at the bar here on Friday. Mr. Williams. That is a very short time, indeed. Justice Jones. You must be ready to-morrow morning. Mr. Williams. Unless, my lord, you will give us a little more time, you had as good give us no time. L. C. J. It seems the business of the Court is such, on Friday morning you cannot be beard. Justice Jones. Either it must be to-morrow morning or Saturday, and that is ExchequerChamber day. Sol. Gen. My lord, I believe they are not in haste. L. C. J. Mr. Attorney, We would give them a reasonable time; but yet we would do nothing that might make unnecessary delays in this case. Att. Gen. I pray, my lord, let it be no longer than till to-morrow, and that is more than ever was given in such a case. I know it was denied in my lord Stafford's case; they would not give the counsel any time, but would make them argue presently. L. C. J. As to that, Mr. Attorney, every case stands upon its own bottom. Serj. Jefferies. My lord, we have your direction for to-morrow morning. Sir Fr. Win. No, no, my lord, we hope not so. L. C. J. Look you, gentlemen, to accommodate you, the Court does think fit thus to do we will be here on Saturday by seven o'clock in the morning. On Friday we can do nothing, for there is a long trial at bar that will take up our time; but on Saturday we will be here by eight o'clock sitting, and expect you to be here by that time: and we cannot afford you then long time to argue in, because it is an Exchequer-Chamber day. Att. Gen. If judgment be against the plea, they must plead presently then, that we may not lose the term for a trial. L. C. J. You must take notice of that, by the rules of the Court they must do it, Mr. Attorney. If our judgment be against them, the course of the court is so, we cannot rule it one way or other. Serj. Jefferies. But then they ought not to pretend they have no notice, their witnesses are out of the way, and so hinder the trial. Justice Jones. No, No. Fitzharris. My lord, I desire I may have these lords come to me; my lord of Essex, my lord Salisbury, my lord mayor, your lordship, and sir Robert Clayton, to perfect my discovery. I have something to discover to your lordship and them. L. C. J. Your discovery of what, do you mean? Filzh. Of the Plot, and of the murder of sir Edmundbury Godfrey. L. C. J. We did examine you about the murder of sir Edmundbury Godfrey. Fitzh. Your lordship went away in haste, before I had told all I could say. L. C. J. We asked you ten times, whetber you had any more to say, and you said, No. Fitzh. My lord, I was in confusion and consternation; I scarce knew what your lordship said to me. L. C. J. We were not in haste; we asked you ofter, that question. Fitzh. It was haste to me, because I was not provided of the questions you asked me. Justice Dolben. To some of the questions we asked you, you answered readily and freely; but to some we could not get a positive answer by any means. Att. Gen. My lord, he told me he was not in England then, and that he knew no more than what he had discovered. Fitzh. Did I say so, Mr. Attorney? Att. Gen. Yes, you are the man. Fitzh. I can bring 20 witnesses, I did not tell you so; and I can bring 500 witnesses, that I was in town then. L. C. J. Lieutenant of the Tower, take your prisoner, and be here before eight o'clock on Saturday morning. Sir Fr. Win. My lord, now I desire we may have a copy of the whole record. L. C. J. Not of the indictment, but of the plea and demurrer you may. Sir Fr. Win. But, my lord, I hope you will let the indictment be read upon Saturday, because Mr. Attorney had fixed his exception upon part of the indictment, which is the libel that he calls the particular treason, and I desire it may be in Court. L. C. J. It shall be, and if you have any occasion of reference to it, we will look upon it; we are all upon our oaths, and must take heed that no prejudice be done to the king, as well as to see the prisoner have no unfair thing put upon him. Then the prisoner was carried back to the Tower. On Saturday the 7th of May, 1681, Mr. Fitzharris was brought to the bar of the Court of King's-bench, about eight o'clock in the morning. Mr. Williams. May it please your lordship, I am assigned of counsel for this person, Mr. Fitzharris, the prisoner at the bar. Att. Gen. My lord, if you please, I will only briefly acquaint them with what our Exceptions are, that they may apply themselves to them. L. C. J. Look you, gentlemen, I must tell you all our time is strait enough for this matter, for we are all of us to be by and by with all the Judges in the Exchequer-Chamber; therefore we pray this of you, we will abridge no man's speaking what is material for this client, but we desire you will keep to the matter, and the points in question between you, and save our time as much as you can. Att. Gen. That is the reason, my lord, why I would lay my finger upon those points that will be the questions between us. Now the Exceptions I take to the Plea are these: this is a plea to the jurisdiction of the Court, and some of our Exceptions are to the form, and one is to the matter. To the form, my Exceptions are these: first, we say that the general allegation that he was impeached de alta Proditione is uncertain, and too general; it ought to have been particularly set out that the Court might judge, whether it be the same crime, and it is not helped by the averment. And the next exception I take to it, is, here is no impeachment alledged to be upon record: I mentioned this the last time, and looking more strictly into it, I find it is so as I said: for they come and make a general allegation, that Fitzharris, such a time, was impeached, Impe'titus fuit,' by the Commons before the Lords, Quæ quidem impetitio, in pleno robore existit, prout per recordum inde,' &c. Now, my lord, there is no impeachment, mentioned before: and quae quidem impetitio' is a relative clause, and if there be no impeachment mentioned before in the plea, then there is nothing averred upon the record, to be continued or disconti nued; for Impetitio does not actively signify the impeaching, or passively the person impeached, but it signifies the indictment or impeachment, that instrument which contains the accusation, and which is to be and remain upon record. Therefore, when they come and say he was impeached, and afterwards alledged, Quae quidem Impetitio' remains upon record, that cannot be good. If a plea should be ‘Indic'tatus fuit,' and afterwards they say 'quod qui' dem Indictamentum,' &c. it cannot be good, for the relative there is only illusive. These are our exceptions to the form. For the matter of it, it is a plea to the jurisdiction of the Court; and, with submission, there the point will be, whether a suit depending, even in a superior Court, can take away the jurisdiction of an inferior Court, who had an original jurisdiction of the cause, of the person, and of the fact, at the time of the fact committed. What be of another consideration; but whether this use might be made of it, as a plea in bar, might be enough to make it amount to such a plea, as will take away the jurisdiction of a Court, that had an original jurisdiction, that is the question before you. These are the exceptions Í take, and do insist upon and I desire, my lord, the counsel will apply themselves to these exceptions, to answer them; and when we have heard what they can say, I hope to give them an answer. Mr. Williams. My Lord, I am assigned of counsel for the prisoner at the bar, Edward Fitzharris, who is indicted here for high-treason, and hath pleaded a special plea to the jurisdiction of the court: and I must crave leave to state his case upon the indictment, the plea to the indictment, and the demurrer to the plea. And the case, my lord, upon the whole record stands thus: he was indicted this term, by one of the grand juries for this county, of High-Treason. As to the Indictment, it cannot be expected I should state the parts of it, it being an Indictment I never saw. To this Indictment thus presented, Fitzharris hath pleaded thus: That he ought not to be compelled to answer to this indictment because that before the Indictment, was found, at a parliament held at Oxford the 21st of March last, he was impeached by the knights, citizens, and burgesses of the House of Commons in parliament assembled, in the name of themselves, and of all the Commons of England, of High-Treason; and that this was before the court of Lords in that parliament. He says farther, that this impeachment is remaining in full force and effect before the Lords in Parliament, prout per recordum, inde int' Record. Parliamenti remanens plenius liquet et apparet.' These are the words of the plea: and then he avers, that the High-Treason mentioned in the Indictment, and the High Treason specified in the Impeachment, are one and the same. And he further avers, that he is the same Fitzharris named in that Indictment, and mentioned in the Impeachment. And after the averments, he concludes, to the jurisdiction of the court: whether upon all this matter they will proceed any farther against him upon this indictment; and demands the judginent of the court to that purpose. Upon this plea, Mr. Attorney hath demurred generally, and we that are of counsel for the prisoner have joined in demurrer with him. Now in this case which thus comes before you for your judgment upon this plea and this demurrer, I take these things to be admitted. First, That 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 secund. legem, et cons. parliamenti;' and being so remains in plenis suis robore et effectu.' And more particularly this plea does refer to the record, for the parts and circumstances of the Impeachment itself, prout patet per record. inde inter,' &c. So that it does refer the Impeachment itself 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 Fitzharris, now indicted, and the Fitzharris impeached, 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 21st of March, and it appears by the record this is only an Indictment of this term. And another thing I must intreat you to ob serve, 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. 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 denied, 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 denies it, or makes any doubt of that; for I think that was the case of Tresilian and Belknap, who were impeached in parliament by the Commons before the Lords: I am sure my Lord Chief Justice Vaughan does, in his Reports in Bushel'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 merrily, 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 Richard II. I have not seen the Roll of late truly, but I am sure it is upon the Roil, and there it is to be found. Since then Impeachments of Commoners will lie 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 inferior court having original jurisdiction of the person and the cause, it may proceed notwithstanding an indictment in the superior court; and, ergo, he does infer 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 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 it 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 it is at the suit of the Commons; and so it is an intimation of, and analogical to, and bears the resemblance of an impeachment in parliament; I will not compare an impeach. ment to an appeal, but I will say an appeal imitates an impeachment. And it is as plain as can be, because appeals are proper to courts in Westminster-hall, and it is at the suit of the So then, I take the plea to be in substance party, the prosecution and all the process is thus, though Mr. Attorney was pleased to ex-ad instantiam partis;' so is an impeachment cept to both the substance and the form; but in at the suit of the Commons. An indictment is substance the case is thus: here is a person im- found upon the presentment of a Grand-jury, peached in parliament, by the Commons in Par-who are sworn ad inquirendum pro Domino liament, for High-Treason, before the Lords in Parliament, and for aught appears that Parlia ment still in being, and this Impeachment still de pending; then here is an Indictment for that very treason: whether your lordship now will think fit in this court to proceed upon that indictment, Rege pro Corpore Com.' and it is a mistake in the form, when it is said, et pro Corpore 'Com.' for it is not for the king and the body of the county, but for the king for the body of * See vol. 6, p. 999, of this Collection. the county. But now an impeachment in parliament is otherwise; it 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 suits with an appeal, which is at the suit of the party; so that it 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 it 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 king's 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 trial; 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, but differ extremely. I would then offer you some reasons why this court ought not to proceed upon this indictment. I take it, it does not become the justice of this court to weaken the methods of proceedings in parliament, as this court will certainly do: for if you will admit this to be the course that I have opened, your proceedings will alter it. When there is an impeachment depending in parliament for treason, if your lordship will admit there may be an indictment here afterwards in this court, and proceedings in this court upon that indictment, it is to alter the method of parliament-proceedings, and to subject the method of their proceedings there to the proceedings of this court; and what the mischief of that will be, I must leave to your lordship. As I opened it before, the methods of both courts are different, and their proceedings very much vary, I think, I need not trouble your lordship with that; we all know it very well in the main. Indictments in this court are to be tried by a jury; where a verdict must be given presently: there is but very little time for giving the evidence, or for - making observations for the crown, or for the public; and in order to bring it to the trial, there must be an immediate plea of Guilty, or Not Guilty. Now if the proceedings of parliament were so sudden, there might be a great surprize, and great offenders pass unpunished, because the prosecutors had not greater time to inspect the records that might be of avail in the case: therefore in parliament it is quite otherwise; there is time for deliberation and consideration, there are many references, and many examinations, which are matters of deliberation and consideration, which take up a great deal of time; but here you are straitened not only in time, but bound up to strict rules, and so are straitened in your methods and forms of proceedings, as Mr. Attorney would here tie us up to the forms of little courts: but it is not fit that the justice of the kingdom, and high court of parliament, should be cramped by the methods of an inferior court, and a jury. So you will then subject the methods of proceedings in parliament to the courts in Westminster-hall, and what the consequence of that will be, is worth the consideration. Another reason I would humbly offer, is this, my lord: The parliament is the supreme court certainly, and this court is every way inferior to it, and it will be strange that that supreme court should be hindered by an inferior: for the highest court is always supposed to be the wisest; the Commons of England in Parliament are supposed to be a greater and a wiser body than a Grand-jury of any one county. The Peers, who are the judges in that court, are supposed to be the wisest judges, as the Commons the wisest inquest. Will the law of England now suffer an examination, impeachment and prosecution for treason, to be taken out of the hands of the greatest and wisest inquest in England? And will the law of England suffer the judicature upon this prosecution to be taken out of the hands of the wisest and greatest judicature, and put it into the power of a smaller number of judges, or of an inferior jury? I do think it does not stand, my lord, with the wisdom of the government. Another thing is this, my lord, the common argument in any extraordinary case, there is no precedent for this way of proceeding; it is my lord Coke's argument in his Comment upon Littleton, fol. 108, and in the 4th Inst. fol. 17, in his Comment upon the High Court of Parliament. And he takes occasion to speak it upon the account of that precedent, the case of the indictment against the bishop of Winchester, and of that against Mr. Plowden; and he says, This was never practised before; therefore it ought not to be: so he infers, and puts a black mark upon it, by saying it is a dangerous attempt for inferior courts to alter or meddle with the law of parliaments. For the words I-refer myself to the book, I dare not venture to repeat them upon my memory. So in this case, in regard that it never was done from the beginning of the world till now, the 33d year of this king, I may say, it being without precedent, there is no law for it. My lord, there is another mischief that will certainly follow upon this, and that too runs upon this comparison of an appeal and of an indictment. In the case of an indictment, it is in the power of the prince to pardon that in 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 risk 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 man's life is brought in question twice upon the same account. dictment, to pardon the punishment, and to pardon the offence; but in case of an impeachment, I take it to be otherwise, as it is in the case of an appeal. And, my lord, if your lordship will take this case out of the power of the parliament, and bring it into this court, where the offence may be pardoned, you do by that means subject that offence, and that method of proceedings, which would make it, without consent of the party prosecuting, not pardonable by law, to a pardon: and this may be of dangerous consequence to the public, that crimes My lord, I now come to this, the time, how that are heinous and great in themselves, unseasonable a thing it is, and how dangerous mighty bulky crimes, fit for the consideration to the government; I take it to be a critical of a parliament, be they never so great, never thing now at this time to make such attempts so dangerous to the government, yet should, as these are. There are lords now that lie by giving this court a jurisdiction, and pos- under impeachments of treason, the highest sessing it of these causes, expose them to the treason, I think, that ever was contrived; and will of the prince; and so those crimes, which upon this impeachment one lord hath been conare impardonable by methods of proceedings in victed and executed. Suppose upon the dissoparliament, would become pardonable by pro-lution of that parliament that impeached the secution in this court. to try by a jury of peers. For the court held before the high-steward, is as much a court as any court in the kingdom, 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 late lord Stafford, there had been an indictment Now my lord, for my authority, that im- against him for one and the same treason: And peachments are not pardonable, I would only by the same reason that this court may prohint a little to compare it to the case of an Ap-ceed, his majesty may appoint a high-steward peal, as Penryn and Corbet's case in 3 Croke, Hill. 38 Eliz. fol. 464. There was an appeal of murder; upon which he is found guilty of manslaughter, and not guilty of the murder. Then there was a pardon pleaded of the burning in the hand, or of the punishment: It is not plain in the book, whether the pardon was after the verdict, or before (that I cannot be clear in); but however, there was a question whe-knows there must be two witnesses; and I am ther the queen could pardon the burning in the hand; however, it was there allowed: But there was an exception, my lord Coke, who was then Attorney-General, took, that the king could not pardon, if it had been an appeal of homicide; and he concurred with the court in that opinion. But that appeal being for murder, and the verdict of manslaughter, they passed over the question, for this reason that I have mentioned, That the appeal was not for manslaughter, it was for murder; and if he had been found guilty of the murder, it was not in the power of the king to pardon him, it being at the suit of the party: So the opinion of that book is, and of the then AttorneyGeneral. sure there came in fresh testimony against my lord 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 have 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 law at the first, it is the wisdom of a parliament to deliberate and to take time. The good queen was used to say, truth was the daughter of time, and time would produce truth, Veritas filia temporis.' If then there had been any Another thing I would say, is this: If your such hasty proceedings, as in this case, I doubt lordship should meddle with this way of pro- my lord Stafford had been now alive. Now ceeding, it will invert the law in another thing; then for these lords that are now in the Tower, if for it is a principle with us, that no man's life your lordship do go on in this way, do you not is to be put twice in danger for one and the open such a gap, as may be a ground to deliver same thing. I will then put the case thus: If them by the same justice (I speak it under coryour lordship should proceed upon this indict-rection here, and I only offer it to your judg ment, and this person should be acquitted upon it, I am in your lordship's judgment 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 Englishman by the law ought to have preserved to Thus I have stated the thing, and the consequences of it, and it is not fit for me to dwell upon it: You will consider of it, I am sure. ment, for I have not had many hours to consider of it; but your lordship will think well of it before you give any judgment) by the same justice the other lords may be tried by another court? This I offer in point of reason, that this proceeding will be very hard, and is an impru dent thing, if not an illegal proceeding. My |