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apon his knees from Mr. Speaker."* (Which petitioning for the sitting of this parliament, be received accordingly.)

hath betrayed the rights of the subject.” November 13, 1680.

Ordered, “ That an humble address be made Resolved, “That sir George Jefferies,t Re- to his majesty, to remove sir George Jefferies corder of London, by traducing and obstructing out of all public offices."

* « The merit of this raised him soon to be James Smith, the lord mayor of London, whom a judge ; for, indeed, he bad no other merit.” I had formerly known intimately well

, and Barnet.

who was of a very loyal club in the city, where + The following is Roger North's account of I used to go, while the fanatic Plot was in this matter : “ The next case, that came on, agitation. This gentleman complained to me, was that of sir George Jefferies, the Recorder that be enjoyed no more than the bare title of of London, which had as poor a come-off. Our lord mayor, the lord chief justice Jefferies History (Kennet] here tells us that he was re- usurping the power ; that the city had no sort moved from his Recordership by vote, which of intercourse with the king, but by the interwas not so, as will appear. But there was a trick vention of that lord ; that whatever was well also in that matter ; for the party had a great done in the city, was attributed to his influence mind to get sir George Treby in to be Re- and management; and that himself and the corder of London ; for he was a trusty confident allermen were by the Court looked upon no of faction. It seems that, in conclusion, sir better than his tools : that upon all occasions George Jefferies had a reprimand upon bis his lordship was so forgetful of the high dignity knees at the bar, and so came off for his crime of the city as to use him and his brethren with of abborring; which was thought a fair com- contempt'; in fine, that the lord chief justice position, after such discourse as had been of im- was to be pitied ; that his haughtiness would peaching their heads off. But the preliminary be the ruin of him; and that he actually inarticle sine quá non, was that he should sur- tended to let the king into the mystery of these render his place of Recorder, to which, in the things; but that he thought the present time end, he agreed, and did accordingly, and (as was not altogether so proper, seeing a remonwas concerted) Treby succeeded him. But strance of this tendency night be construed this offence of his was, by the order of the into mutiny and disaffection. I answered, that House, intimated to the lord mayor and alder- the king was too well acquainted with the lord men, that they might not want a cause to re- mayor's services and integrity to suspect him tun upon a Mandamus, in case they should of that, and that, in my opinion, now was the thereupon have turned him out; for it he had fittest time for exposing a man in that credit at not complied, but stood on his right, he must court; for that now the greatest notice would have had all the defences the law allowed, and be taken of all such grievances. Indeed I was might bare argued such a matter, returned, not sorry at my heart to see such good men dissato be a sufficient cause ; and the judges would tisfied in any degree ; but I was as glad to find hare done him right. This consideration made this proud man seen through ; for he had to the party take up the intimidating process, and my knowledge used the city of York As scurgain possession by a surrender without suit in vily as it was possible for him to use the low. The great difficulty, that lay upon the city of London. For at York he put out five spirits of sir George Jefferies, was to come off aldermen though he had solemuly engaged to well with the king ; lest this compounding keep them in, and that, without so much as with the Commons should confound him at allowing them to be heard as to the crimes they Court. Therefore he begged of his majesty stood accused of. The lord mayor said the that be would give him leave to surrender his very same had been frequently practised in place; which the king was loth to do, because London, and that many had been turned out of be was of such an over-ruling genius, and their employments without so much as being stern behaviour towards men whom he pre- suffered to make their defence. In short, i tended to awe, as enabled him to be very influ. was at the very saine time told by one of the ential among the citizens, and, in other respects, lieutenancy of the city, that should the duke could not bo so well employed. He beseeched, of Monmouth give a blow to the king's forces, entreated, and importuned the king' so very it was much to be feared there would be an inmach, that, at last, the king granted his re- surrection in London.” quest; so, having his majesty's leave to resign, “ A few days afterward, I dined with the he took his chiding, and was, as he thought, lord Chancellor, where the lord mayor of Lonreclus in Curia. But the ever facetious king don was a guest, and some other gentlemen, was pleased to laugh and say that sir George His lordship having, accordig to custom, Jefferies was not parliament proof ; and, how drank deep at dinner, called for one Mount. erer he found interest in corners about the fort, a gentleman of his, who had been a cocout, the king never had a real value for him median, an excellent mimic ; and to divert the after." Examen, p. 550.

company, as he was pleased to term it, he marle Sir Joho Reresby gives us the following par- lim plead before him in a feigned cause, during ticulars respecting Jefferies :

which he aped all the great lawyers of the age, “ The next day I happened to dine with sir in their tone of vowe, and in their action and

concern.

Sheridan, whose discharge by baron Weston committee to examine him and Wilson. The gave offence to the House of Commons, appears act directs, " That the judges, within such a to bave been for breach of privilege, continued time, grant a Habeas Corpus, when desired, in custody to which he had been previously com- and they are required to bail where the act mitted, but for what offence does not distinctly gives that liberty." Now the question is

, appear.

whether a Habeas Corpus lies in case of any of The House of Commons on December 9th, your commitments, the parliament sitting? 1680, ordered that he should be forthwith (And he reads the Act.) In the Act here is brought in the custody of the Serjeant at Arms nothing relates to parliament-commitments

. to the bar of the House. Tbis was accordingly The • Head-Court" is the King's-Bench, and done, and he was examined concerning Dow this seems not to relate to the parliament. This del, the priest, &c. After which it was ordered, is a commitment of parliament, and if so, the that he should continue in custody of the Ser- judges cannot grant a Habeas Corpus. jeant at Arms during the pleasure of the House. Serjeant Maynard. You are going upon a On the next day, Friday, the 10th, a report sudden to give an opinion in a thing not was made upon his papers and he was again thought of before. As I take it, his Habeas examined. On Wednesday, the 15th, he was Corpus is granted : now what is to be done in at his own desire again admitted to the House this case? I desire not to be concluded in any and examined.

thing I shall now say, but I will tell you my On Thursday December 30th, 1680, and apprehension ; where shall he go to be bailed, the next day, the following debates took place but to this House ? Your remedy for breach of on his habeas corpus :

your privilege is commitment, and no action On Mr. Sheridan's Habeas Corpus.

can be brought against either the Lords or

Commons. When you commit a man, you do Mr. Buscawen. Mr. Sheridan stands com- not always express the cause ; if the judges mitted, as a judgment of the House, for bail him, he is gone, and there is an end of breach of privilege. It seems to me, that him. I would have this matter let alone till his commitment does run on the hinge of to-morrow. an act of court in a criminal cause, which Serjeant Stringer. This is a matter of great we may suppose in execution, where a Ha

I would consider whether a judge baes Corpus does not lie, and he is not bail- can deny a Habeas Corpus. By the act, the able, and they will not discharge him in a jailor is to pay the penalty of 500l. upon afficourt of criminal causes. I think bis com- davit “ That he is refused the copy of bis mitment stands good, and you are to consider commitment."-So far a judge may safely go. the privilege of the House of Commons. But the great point is, whether the judge can

The Speaker. Give me leave to state the discharge him. If so, farewell all the privimatter. The thing, in fact, stands thus. She- | leges of the Commons ! When the matter ridan and Day were committed by your order comes to a Habeas Corpus, the judges may be the ninth of December ; they were brought to informed how he stands committed. It is the bar the same day, and ordered to continue said, “ That this Sheridan is a second Colein custody during the pleasure of the House, man,” and, if so, let him be hanged as he was. and no person to be admitted to come to him I would take time to consider this, and I beunless it were with necessaries. Then that lieve the opinion of this House will go a great order was mitigated, and you ordered him to way with the judges. be taken into custody. Then you ordered a Sir William Jones. This matter is of great

concernment; it concerns the privileges of gesture of body, to the very great ridicule not both Houses, and next, the liberty of the subonly of the lawyers, but of the law itself, which, ject; and I would not have you do any thing to me, did not seem altogether so prudent in a in it hastily ; but to appoint a committee to man of his lofty station in the law; diverting consider it, will seem to make the thing too it certainly was, but prudent in the Lord High difficult ; but yet you are not ready to come to Chancellor, I shall never think it.” “ To resume a resolution now. I must deny “ that the the Lord Chancellor once again, he had now judge must grant a Habeas Corpus to this like to have died of a fit of the stone, which he man.” This is not a case at common-law, virtuously brought upon himself by a furious but you see that sometimes in discretion for debauch of wine, at Mr. alderman Duncomb's ; merly they required a copy of the commitwhere be, the Lord Treasurer, and others drank ment. But by this act, the judges grant a themselves into that height of frenzy, that, Habeas Corpus upon a copy of the commitamong friends, it was whispered they had ment. In this case, the judge is in no danger stripped into their shirts, and that, had not an upon refusing the Habeas Corpus. The seraccident prevented them, they had got up on a jeant says “Sheridan sent to him. for a copy sign post, to drink the king's health ; which of his commitment," and the serjeant has not was the subject of much derision, to say no granted it to him ; so the Habeas Corpus is not worse."

yet granted. If you please, I would not commit See more concerning him in this Collection this, but adjourn the consideration of it. in those Trials in which he presided when Chief Sir Francis Winnington. All I move for is Justice.

this, “That no memorial nor entry be made upon your books for the present;" but opon |'act of Habeas Corpus ; and why will you the whole frame of the act, I see no Habeas make any question upon it, upon general com, Corpus lies upon a commitment of parliament. mitments of the House. Serj

[graphic]

. Maynard. I am clearly of opinion that this is a cause out of the statute of Habeas

On the latter of the abovementioned days, Corpus. That law was never intended other

his case was thus spoken of: wise than for commitment from inferior courts, Serjeant Maynard supposed Sheridan should and not parliament. All bail is in order to trial; bring an action against the judge, if your comwhen an act of parliament says “ A lower mitment be for breach of privilege, no inferior court," it never intends a higher. A commit-court will judge of it; but if the commitment ment is not only a judgment

of this House, but be not for breach of privilege, you may mend it. an execution : and though the statute does not Mr. Hurbord. I appeal to you, it ever you mention the parliament, other courts shall not discharge a man that does not acknowledge the grant it in judgment and execution. There can jurisdiction of the House, and acknowledge his Le no trial of one committed from this House, fault? Till he has done so, let him remain in but in this place, and this act is not intended for custody. commitments from hence.

The Speaker. If you should do as Maynard Sir Francis Winninglon. It is plain the par- moves, your order for breach of privilege is, hament is not to be included by this act; for as if after commitment they should mend the the parliament was informed, that there was a record in Westminster-hall. Sheridan was in Habeas Corpus 'to remove a man from the custody before the paper that reflected upon Tower, and they sent him to Jersey or Guern- your members, and broke your privileges, was key. So it plainly shows that it was for the found. So the first order for commitment was growing evils of removing men out of the reach upon another occasion. of Habeas Corpus, that this bill was formerly Mr. Paul Foley. Though Sheridan was sent brought in; and that it was never intended for in custody to the bar, yet the continuation against commitments of the House of Com- of him in custody was for breach of privilege. mons. A man is committed here in execution, Sir Thomas Lee. I would have it considered and it was never intended that injustice should how you will mend a commitment afterwards; low from this House. As Mr. Sheridan bas if he has a copy of his commitment, general, repented himself of bringing this, I could wish and now comes an amendment of the commithe would of his other crimes also.

ment, for breach of privilege, a month after ! Sir Thomas Lee. Consider the advantage of The general debate ran, " That be held a danputting this question, moved from the bar by gerous correspondence with the duke of York, Jones, viz. “That no Habeas Corpus does lie and was a second Coleman.” Gentlemen were during the sitting of this House." This court sent to search his papers, and found a paper in is a superior court, and no inferior jurisdiction. bis closet not printed nor published. Pray let I do not see why you should make any vote in the thing stand upon its own foundation, withthis case. The judge has the law before him, out mending it. and your vote cannot alter it. You may be pre- Sir Fr. Winnington. The famous case of judiced by subjecting your vote to the interpre- lord Shaftsbury, when upon a commitment by tation and scanning of the judges.

the Lords he was brought by Habeas Corpus Sir William Pulteney. In this case, a vote is to the King's-bench bar, there was no return necessary, else the judges will not know what made, and he was discharged sedente Parliathey ought to do, and what not. You have mento. If a rule of court be ill-entered, I apFoted, “That the judges cannot grant a Ha peal to you, if it be not mended every day in beas Corpus against the common privileges of an inferior court ? this House." I would have the judges take no- Mr. Powle. Whoever, in this place, speaks tice of it, and therefore I am for a vote. I do for limiting your power is not so favourably not know that this House has power to commit heard, as he that speaks to enlarge it. • State bat in case of breach of privilege, and I would super vias antiquas.' I am afraid we are so restrain it in the vote.

about removing the ancient land-marks, which Mr. Poul Foley. I have looked over the act, may return to their old bounds again. Your and am of opinion that a Habeas Corpus does power is part of the judicial, and part of the not lie in this case, and may be refused in case legislative authority, and it is but part only. it should be required by this act. A Habeas Anciently the judicial power of parliament was Corpus was never granted upon a commitment exercised by King, Lords, and Commons; but by parliament formerly; no precedent can be for some ages past, we, and the Lords, by tacit shown of it. You commit for contempt, and it consent, have had a separate jurisdiction in must be in such cases where the party is baila- that point, and they punish for their breaches ble. If you put a question, I would be loth to of privilege, and we for ours. This case of hare our privileges (which is our only power) Sheridan, I confess, goes beyond your ancient to be lodged in commitments upon impeach- privilege; they took no jurisdiction upon themments, whereas we have power to send for all selves, but either did send to the Lords if the people commoners.

thing deserved an impeachment, or dismissed The Speaker. This case is particular as to it to the law in the lower courts at WestMs. Sheridan, and is out of the power of the minster. I do not take the words in the paper

6

found in Sheridaa's study, to be a breach of Sir Thomas Clarges. Lord Shaftsbury was privilege against your members, he having not committed by parliament, and took out his Ha. published the paper. Here is neither actual beas Corpus, but the judges had the discretion torce against your members, nor suits of law. to remand him; and a Habeas Corpus does If the courts below cannot reform your error, lie unless for treason, felony, or in execution and it is fit you should do it yourselves. If this convict persons, &c. Commitments of the man be not in custody for breach of privilege, Commons are in execution. As I now stand I would release him, and all that are so com-apprized of it, the Serjeant may carry Sheridan mitted, and reform your own error'.

to the judge with the cause of his Commitment. On Friday January the 7th, 1681, the Sir Francis Winnington. I take this business House was informed, that a writ of Habeas to be worth your consideration. The case of Corpus had been directed to the Serjeant of the lord Shaftsbury is not this case. The act of House, to bring the body of Mr. Sheridan to Habeas Corpus was made since that time. On Mr. Justice Raymond's house in Chancery the other hand it was rarely found that a perLane.

son, committed by either House, has been sent Mr. Boscawen. The judge might not have for by the judges. As I would do justice to the gone so far as he has done. It may be, the Ser- subject, so I would not, out of compliment, give jeant had other prisoners, and your commit- up your privilege. I would adjourn this debate ment of Sheridan is not for breach of privilege. till-to morrow, and go upon the business of the He is a Serjeant at Arms, though he attend the day. I speak not for an order, but because House ; so it does not appear but that the Ser- there is a penalty in the statute, I would conjeant may have Sheridan in custody upon ano. sider of it for the Serjeant's sake. ther warrant. I would be careful to preserve the privilege of the House on the one hand, and Grey says it was adjourned to the next day, the Habeas Corpus on the other. I would have but he does not make mention of any farther the Serjeant give the judge an account, " That debate concerning it during the continuance of he has Sheridan in custody, but that he knows that parliament, which was shortly afterwards Rot that he has him legally, &c."

dissolved.

277. Proceedings in Parliament against EDWARD FITZHARRIS, upon

an Impeachment for High Treason : 33 CHARLES II. A. 1. 1681. [Journals of both Houses. 8 Grey's Debates, 303.

4 Cobb. Parl. Hist. 1314.] House of COMMONS, March 25, 1681.

Ireland, raised the company, and conducted

them into France : and, soon after his landing Sir George Treby acquaints the House, That there, he was reformed, and discharged of his he, together with sir Robert Clayton, had taken said command: whereupon he went to Paris ; the Examination of Edward Fitzharris, relating and, having but little money, he lived there difto the Popish Plot: which he read in his place; ficultly about a year. and afterwards, delivered the same in at the In 1672, going about to take his leave of clerk's table : where the same being read is as Father Gough, an English Priest at Paris, he followeth ;

saith to this purpose: "You are going for Eng. The Examination of EDWARD FITZHARRIS, re

land : within these two or three

will

years you

see the catholic religion established there, as it lating to the Popish Plot.

is in France." The examinant asking him how Who saith, That he was born in Ireland, and that could be, since the king was a protestant ; is the son of sir Edward Fitzharris ; and that he he answered; “ If the king would not comply was bred, and is, a Roman Catholic: That, in there was orders taken, and things so laid, that 1662, he went first out of Ireland ; and then he should be taken off, or killed: that the duke went into France, to learn the language, as an of York was a catholic; and, in his reign, there accomplishment, being then of the age of 14 would be no difficulty of doing it.” This exayears. In 1665 he returned thence, through minant then asking him, how long the duke England, into Ireland; where he continued till had been a catholic ; he answered, “That the about 1668, when he went to Prague, in order queen mother had made him so." He further to serve the emperor in his war in Hungary ; said, “ That the declaration of indulgence was but, there then finding a peace concluded, he in order to that, and of introducing the catholic came, by the way of Flanders, into England. religion in England : and that, to the same end,

And then sir George Hamilton being about the war was made against Holland: for that raising a regiment of 1,500 foot in Ireland, for Holland was a nest of heretics ; and, if they the French®king's service, this examinant ob- were destroyed, the work would be easily done tained from sir George Hamilton a commission in England; because the English, or English to be captain of one of the companies in that re- Protestants, he said, would then have no assist giment to be raised; whereupon he went into ance from abroad." And he said, That

Madame came over to Dover about this de- That, about April 1680 he met Kelly the sigu."

Priest; who there, in discourse with him, owned, The Examinant, coming over about the end That he was one of the persons concerned in the of October 1672 about February following, had murder of sir Edmundbury Godfrey ; and that a commission to be lieutenant of captain Sy- the same was done much in the manner as denham's company, in the duke of Albemarle's Prance* had related it. regiment, which was then raised, being one of This Examinant hath known Kelly about 12 the regiments in the army, which was the years ; in part of which time he has had intisummer following mustered at Blackheath : mate conversation with him, and hath someand he says, He knew many of the lieutenant- times confessed to bim. colonels, maajors, captains, and officers of that That he bath been acquainted 6 or 7 years army to be Roman Catholics.

with M. De Puy, a servant to the duke of That afterwards, the act passing to disable | York: and that, soon after the murder of'sir Roman Catholics to bear office, he and others Edmundbury Godfrey, this De Puy told this of them were forced to quit their commands : Examinant, That thaí murder was consulted at and says, That the common intelligence and Windsor. opinion among them was, That that army was And, about the same time, said, That the raised with a design to bring in and settle the duke was very desirous to come to the crowns Roman Catholic religion in England; for which for that the king was uncertain, and did not end the invasion of flolland, and the awing of keep touch with them: and that De Puy said, the city of London, were fit means.

there was a necessity of taking off the king ; But the measures that were thus taken being and that it would be soon done. broken by means of the peace, and by the That the duke of York having an estate in duke of York's, as well as these, and other Ireland, a part of which was this Examinant's officers, quitting all commands; and the king father's ; and this Examinant, being acquainted failing in the expectations they had from him; with Father Beding field, asked him, how he the Roman Catholics, that were engaged in this could give absolution to the duke, till he had council, came to a resolution to destroy the made restitution. The Father said, “ That king, as Father Parrey, confessor to Don Fran- every penitent was supposed to know his own cisco de Melo, the Portuguese ambassador, told sins, and to make

them known to his confessthis examinant in 1613; and if all other means or, To which this Examinant replying, withi failed, the queen would

procure the doing of it. some warmth, “ But, since you know it, you And he says, That this Father used this con- ought to take notice thereof;" the Father fidence towards him, because he was well ac- answered, “ De not angry; for, ere it be long quainted with him, and used to confess to him ; , you may be in a better condition.” and this Father repeated the same discourse to March 1680, he went to Paris, to compound him in the summer 1678, with more assurance; a debt he owed there, staying there about eight adding tben, " That the business was now near, days : Where meeting Father Patrick, who and he should soon see it done."

well knew this Examinant's father and friends, About April 1679, Marquis Montecuculy, and this Examinant talking of a rupture that envoy from the duke of Modena, after having might be between England and France; le sworn him to secrecy, told him, that if he would said, “ The French intended in such case, to undertake the killing the king, either in his own

send Marshal Belfonds into Ireland with an person, or by any other, that he should have army of 10,000 foot, and 2,000 horse, with 10,0001

. which he refusing, the Marquis said, arms and ammunition for 30,000 men more, to If you will not, the duchess of Mazareene be raised in Ireland :" and the Father promised understands poisoning as well as her sister ; and this Examinant a regiment of the men so to a little phial, when the king comes there, will be raised and armed in Ireland : and the design

was, to restore that kingdom to its former And this Examinant had a great acquaint- owners, subject to the French. ance with the said Marquis, having first met

He also desired him to send him all the libels him several times at the duchess of York's that came out in London: and said, “ That Chapel; and afterwards let him a house, and libelling the king, and the government, was a sold him the furniture therein; and has very thing necessary to be done, in order to distaste often eaten, drank, and walked' with bim : and the king, and make him afraid and jealous of the Marquis at the same time told him, That, his people.” upou killing the king, the army in Flanders, That he knew Mr. Everard at Paris in 1665; and parts adjacent to France, was to come over and hath since continued and increased his ac into England to destroy the Protestant party; quaintance with him ; that the opinion of Faand that money was levying in Italy, to recruit ther Patrick was an encouragement to him to and supply forces,

in the place of those that correspond and concur with Mr. Everard, as should so come over into England :

to the libel lately written by Mr. Everard. And that, after that time, there should be no Capt' 10 Martii, 1681, coram' Rob. CLAYTON, more parliaments in England: and that the Geo. TREBY. duke of York was privy to all these designs.

* As to this man, see vol. 7, pp. 157, 228, of See a Note at the end of Fitzharris's Trial. this Collection,

Q

do it."

VOL. VIII,

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