apon his knees from Mr. Speaker."* (Which be received accordingly.)

November 13, 1680.

Resolved, "That sir George Jefferies,† Recorder of London, by traducing and obstructing "The merit of this raised him soon to be a judge; for, indeed, he had no other merit." Burnet.

petitioning for the sitting of this parliament, hath betrayed the rights of the subject."

Ordered, "That an humble address be made to his majesty, to remove sir George Jefferies out of all public offices."

James Smith, the lord mayor of London, whom I had formerly known intimately well, and 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 he 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 aldermen 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 his 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 abhorring; 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 surtended 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 might 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 turn upon a Mandamus, in case they should of that, and that, in my opinion, now was the thereupon have turned him out; for if 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 have 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 have 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 law. 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 solemnly 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 he 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 he 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 influential among the citizens, and, in other respects, could not be so well employed. He beseeched, entreated, and importuned the king so very mach, that, at last, the king granted his request; so, having his majesty's leave to resign, he took his chiding, and was, as he thought, reclus in Curia. But the ever facetious king was pleased to laugh and say that sir George Jefferies was not parliament proof; and, however he found interest in corners about the court, the king never had a real value for him after." Examen, p. 550.

was at the very same time told by one of the lieutenancy of the city, that should the duke of Monmouth give a blow to the king's forces, it was much to be feared there would be an in

surrection in London."

"A few days afterward, I dined with the lord Chancellor, where the lord mayor of London was a guest, and some other gentlemen, His lordship having, according to custom, drank deep at dinner, called for one Mountfort, a gentleman of his, who had been a comedian, an excellent mimic; and to divert the company, as he was pleased to term it, he made Sir John Reresby gives us the following par-him plead before him in a feigned cause, during ticulars respecting Jefferies: "The next day I happened to dine with sir

which he aped all the great lawyers of the age, in their tone of voice, and in their action and

Sheridan, whose discharge by baron Weston gave offence to the House of Commons, appears to have been for breach of privilege, continued in custody to which he had been previously committed, but for what offence does not distinctly appear.

committee to examine him and Wilson. The act directs, "That the judges, within such a time, grant a Habeas Corpus, when desired, and they are required to bail where the act gives that liberty." Now the question is, 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. This 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. On the next day, Friday, the 10th, a report was made upon his papers and he was again examined. On Wednesday, the 15th, he was at his own desire again admitted to the House

and examined.

On Thursday December 30th, 1680, and the next day, the following debates took place on his habeas corpus :

On Mr. Sheridan's Habeas Corpus. Mr. Boscawen. Mr. Sheridan stands committed, as a judgment of the House, for breach of privilege. It seems to me, that his commitment does run on the hinge of an act of court in a criminal cause, which we may suppose in execution, where a Habaes Corpus does not lie, and he is not bailable, and they will not discharge him in a court of criminal causes. I think his commitment stands good, and you are to consider the privilege of the House of Commons.

Serjeant Maynard. You are going upon a sudden to give an opinion in a thing not thought of before. As I take it, his Habeas Corpus is granted: now what is to be done in this case? I desire not to be concluded in any thing I shall now say, but I will tell you my apprehension; where shall he go to be bailed, but to this House? Your remedy for breach of your privilege is commitment, and no action can be brought against either the Lords or Commons. When you commit a man, you do not always express the cause; if the judges bail him, he is gone, and there is an end of him. I would have this matter let alone till to-morrow.

Serjeant Stringer. This is a matter of great concern. I would consider whether a judge can deny a Habeas Corpus. By the act, the jailor is to pay the penalty of 5001. upon affidavit "That he is refused the copy of his commitment."-So far a judge may safely go, But the great point is, whether the judge can The Speaker. Give me leave to state the discharge him. If so, farewell all the privi matter. The thing, in fact, stands thus. She-leges of the Commons! When the matter ridan and Day were committed by your order the ninth of December; they were brought to the bar the same day, and ordered to continue in custody during the pleasure of the House, and no person to be admitted to come to him unless it were with necessaries. Then that order was mitigated, and you ordered him to be taken into custody. Then you ordered a

comes to a Habeas Corpus, the judges may be informed how he stands committed. It is said, "That this Sheridan is a second Coleman," and, if so, let him be hanged as he was. I would take time to consider this, and I believe the opinion of this House will go a great way with the judges.

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 the Lord Chancellor once again, he had now like to have died of a fit of the stone, which he virtuously brought upon himself by a furious debauch of wine, at Mr. alderman Duncomb's; where be, the Lord Treasurer, and others drank themselves into that height of frenzy, that, among friends, it was whispered they had stripped into their shirts, and that, had not an accident prevented them, they had got up on a sign post, to drink the king's health; which was the subject of much derision, to say no worse."

See more concerning him in this Collection in those Trials in which he presided when Chief Justice.

resolution now. I must deny "that the judge must grant a Habeas Corpus to this man." This is not a case at common-law, but you see that sometimes in discretion for merly they required a copy of the commitment. But by this act, the judges grant a Habeas Corpus upon a copy of the commitment. In this case, the judge is in no danger upon refusing the Habeas Corpus. The serjeant says "Sheridan sent to him. for a copy of his commitment," and the serjeant has not granted it to him; so the Habeas Corpus is not yet granted. If you please, I would not commit this, but adjourn the consideration of it.

Sir Francis Winnington. All I move for is. this, "That no memorial nor entry be made

upon your books for the present;" but upon 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. Maynard. I am clearly of opinion that this is a cause out of the statute of Habeas Corpus. That law was never intended otherwise 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. Harbord. I appeal to you, if 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 be 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.

On the latter of the abovementioned days, his case was thus spoken of:

Sir Francis Winnington. It is plain the parliament is not to be included by this act; for the parliament was informed, that there was a Habeas Corpus to remove a man from the Tower, and they sent him to Jersey or Guerney. So it plainly shows that it was for the growing evils of removing men out of the reach of Habeas Corpus, that this bill was formerly brought in; and that it was never intended against commitments of the House of Commons. A man is committed here in execution, and it was never intended that injustice should flow from this House. As Mr. Sheridan has repented himself of bringing this, I could wish he would of his other crimes also.

Sir Thomas Lee. Consider the advantage of putting this question, moved from the bar by Jones, viz. "That no Habeas Corpus does lie during the sitting of this House." This court is a superior court, and no inferior jurisdiction. I do not see why you should make any vote in this case. The judge has the law before him, and your vote cannot alter it. You may be prejudiced by subjecting your vote to the interpretation and scanning of the judges.

The Speaker. If you should do as Maynard moves, your order for breach of privilege is, as if after commitment they should mend the record in Westminster-hall. Sheridan was in custody before the paper that reflected upon your members, and broke your privileges, was found. So the first order for commitment was upon another occasion.

Mr. Paul Foley. Though Sheridan was sent for in custody to the bar, yet the continuation of him in custody was for breach of privilege.

Sir Thomas Lee. I would have it considered how you will mend a commitment afterwards; if he has a copy of his commitment, general, and now comes an amendment of the commitment, for breach of privilege, a month after? The general debate ran, "That he held a dangerous correspondence with the duke of York, and was a second Coleman." Gentlemen were sent to search his papers, and found a paper in bis closet not printed nor published. Pray let the thing stand upon its own foundation, without mending it.

Sir Fr. Winnington. The famous case of lord Shaftsbury, when upon a commitment by 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 Parlia they ought to do, and what not. You have mento. If a rule of court be ill-entered, I apvoted, "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 notice of it, and therefore I am for a vote. I do not know that this House has power to commit but in case of breach of privilege, and I would 80 restrain it in the vote.

Mr. Paul Foley. I have looked over the act, and am of opinion that a Habeas Corpus does not lie in this case, and may be refused in case it should be required by this act. A Habeas Corpus was never granted upon a commitment by parliament formerly; no precedent can be shown of it. You commit for contempt, and it must be in such cases where the party is bailable. If you put a question, I would be loth to have our privileges (which is our only power) to be lodged in commitments upon impeachments, whereas we have power to send for all people commoners.

The Speaker. This case is particular as to Mr. Sheridan, and is out of the power of the

Mr. Powle. Whoever, in this place, speaks for limiting your power is not so favourably heard, as he that speaks to enlarge it. 'State

6

super vias antiquas.' I am afraid we are about removing the ancient land-marks, which may return to their old bounds again. Your power is part of the judicial, and part of the legislative authority, and it is but part only. Anciently the judicial power of parliament was exercised by King, Lords, and Commons; but for some ages past, we, and the Lords, by tacit consent, have had a separate jurisdiction in that point, and they punish for their breaches of privilege, and we for ours. This case of Sheridan, I confess, goes beyond your ancient privilege; they took no jurisdiction upon themselves, but either did send to the Lords if the thing deserved an impeachment, or dismissed it to the law in the lower courts at Westminster. I do not take the words in the paper

found in Sheridan's study, to be a breach of privilege against your members, he having not published the paper. Here is neither actual force against your members, nor suits of law. If the courts below cannot reform your error, it is fit you should do it yourselves. If this man be not in custody for breach of privilege, I would release him, and all that are so committed, and reform your own error.

On Friday January the 7th, 1681, the House was informed, that a writ of Habeas Corpus had been directed to the Serjeant of the House, to bring the body of Mr. Sheridan to Mr. Justice Raymond's house in Chancery

Lane.

Sir Thomas Clarges. Lord Shaftsbury was committed by parliament, and took out his Ha. beas Corpus, but the judges had the discretion to remand him; and a Habeas Corpus does lie unless for treason, felony, or in execution and convict persons, &c. Commitments of the Commons are in execution. As I now stand apprized of it, the Serjeant may carry Sheridan to the judge with the cause of his Commitment.

Sir Francis Winnington. I take this business to be worth your consideration. The case of lord Shaftsbury is not this case. The act of Habeas Corpus was made since that time. On the other hand it was rarely found, that a person, 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 the Habeas Corpus on the other. I would have the Serjeant give the judge an account, "That he has Sheridan in custody, but that he knows not that he has him legally, &c."

Grey says it was adjourned to the next day, but he does not make mention of any farther debate concerning it during the continuance of that parliament, which was shortly afterwards dissolved.

277. Proceedings in Parliament against EDWARD FITZHARRIS, upon an Impeachment for High Treason: 33 CHARLES II. A. D. 1681. [Journals of both Houses. 8 Grey's Debates, 303. 4 Cobb. Parl. Hist. 1314.] HOUSE OF COMMONS, March 25, 1681. SIR George Treby acquaints the House, That he, together with sir Robert Clayton, had taken the Examination of Edward Fitzharris, relating to the Popish Plot: which he read in his place; and afterwards, delivered the same in at the clerk's table: where the same being read is as followeth ;

The Examination of EDWARD FITZHARRIS, relating to the Popish Plot.

Who saith, That he was born in Ireland, and is the son of sir Edward Fitzharris; and that he was bred, and is, a Roman Catholic: That, in 1662, he went first out of Ireland; and then went into France, to learn the language, as an accomplishment, being then of the age of 14 years. In 1665 he returned thence, through England, into Ireland; where he continued till about 1668, when he went to Prague, in order to serve the emperor in his war in Hungary; but, there then finding a peace concluded, he came, by the way of Flanders, into England.

And then sir George Hamilton being about raising a regiment of 1,500 foot in Ireland, for the French king's service, this examinant obtained from sir George Hamilton a commission to be captain of one of the companies in that regiment to be raised; whereupon he went into

Ireland, raised the company, and conducted them into France: and, soon after his landing there, he was reformed, and discharged of his said command: whereupon he went to Paris; and, having but little money, he lived there difficultly about a year.

In 1672, going about to take his leave of Father Gough, an English Priest at Paris, he saith to this purpose: "You are going for England: within these two or three years you will see the catholic religion established there, as it is in France." The examinant asking him how that could be, since the king was a protestant ; he answered; " If the king would not comply there was orders taken, and things so laid, that he should be taken off, or killed: that the duke of York was a catholic; and, in his reign, there would be no difficulty of doing it." This examinant then asking him, how long the duke had been a catholic; he answered, "That the queen mother had made him so." He further said, "That the declaration of indulgence was in order to that, and of introducing the catholic religion in England: and that, to the same end, the war was made against Holland: for that Holland was a nest of heretics; and, if they were destroyed, the work would be easily done in England; because the English, or English Protestants, he said, would then have no assistance from abroad:" And he said, “That