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As soon as the Examination was read,
master, in the character I bear under him; and
I will not go on the message.* Sir John Harlop moved that it might be print- A
great cry, “ To the bar, to the bar.” ed, to shew the world the devilish conspiracies Sir Thomas Lee. I would not have said one of the papists.
word, but that the very being of the parliaSir William Jones. I like the motion well. ment is in the case. It is to no end to sit bere There is nothing in this paper, but what any longer, if this be suffered. Jenkins bad is fit to be printed ; and what fully makes no ground or reason to bring the king's name out what we have heard before, and be- in question, nor was there any reflection upon cause we all know, that, since lord Stafford's his majesty, or Jenkins, in sending him with Trial, people have been preavailed upon to the impeachment. But, for Jenkins to say, believe the plot not true. This paper confirms “ Do what you will with me, I will not go Oates's, Bedlow's, and Prance's informations; with the message !" Let his words be first asbut I would not have that paper printed which serted, and read to you, before he explain them, reflects upon the king.
according to the order of the House. Mr. Secretary Jenkins. I will not trouble Sir George Hungerford. I never heard such you, but with what part I had in this affair. words uttered in parliament before, “ That the The scandalous paper reflecting upon the king whole House of Commons should reflect upon was read over to his majesty by Waller; the king in sending him with the message, whereupon I issued out warrants to apprehend and “ that he will not obey your commands." Fitzharris, &c. and Waller saw the execution Pray call him to the bar. of them.
At which there was a loud cry, “To the bar, - Sir F. Winnington. This is of great import- &c.” ance, and in it we ought to acquit ourselves Mr. Trenchard. The House will grow conlike wise men. We, that come out of the temptible to the extremest degree, at this rate. country, hear that the treasonable paper should Such a thing was never before in parliament; have been sent to many gentlemen, and then they should have been seized upon as traitors * Bishop Burnet gives the following chain the conspiracy in this plot. All is now at racter of him : “ Jenkins, now made Secretary stake; therefore how long or short a time we of State, was the chief manager for the court, are to sit here, (the trooper, Harrison, that was against the Bill of Exclusion : he was a man seized, said, “ We should have other guards of an exemplary life, and considerably learned ; at Oxford than we had at Westminster,”') let but he was dull and slow: he was suspected of not our courage lessen. This being our case, leaning to popery, though very unjustly; but let us go to the bottom of this business of Fitz- he was set on every punctilio of the Church of harris. It has been moved, “ That he should England to superstition ; and was a great asbe sent for hither ;” but we have experience, sertor of the divine right of monarchy, and was that, when once an accusation in parliament is for carrying the prerogative high: he neither against a man upon record, and in the greatest spoke nor wrote well.” History of his Own court in the kingdom made known, malefactors Times, vol. 1, p. 481.-In Bulstrode's Memoirs, have not been cleared, and have not had justice; p. 372, there is a letter from sir Leoline Jentherefore I move, “ That you will take care kins, dated the 31st of March, 1085, in which that this man be impeached of high-treason,” is the following account of himself: “ His maand, it may be, then he will tell all. jesty hath, upon my most humble and even
Sir Rob. Clayton. When Mr. Recorder and importunate suit, given me leave in regard of myself examined Fitzharris in Newgate, he my health, to resign my post of secretary, and asked as, “ Whether he had said enough to
hath bestowed it upon Mr. Godolphin. My save his life?” We told him, " We thought great concern is, that this being a pure effect of not; but if he would ingenuously confess what my most humble supp!ication, and even intocounsel he had for drawing and modelling his lerable importunity, with his majesty and the treasonable paper, and be ingenuous in the duke, it may not be imputed to any surprize whole, we would take his farther examination;" upon me at court, much less to my disliking of and wished him to consider of it. But, the the present measures there. This 1 say, benext day after he promised he would, he was malicious constructions they can invent, upon
cause I know the fanatics will put the most removed out of our reach to the Tower.
an incident at court.”—Upon this, Mr. Hatsell Ordered. “That the said Examination be observes, “Whoever will recollect the proceedforthwith printed.”
ings, that were going on at this period, with Resolved, " That Edward Fitzharris be im- respect to the surrender of charters throughout peached of daigh-treason, in the name of all Old Bailey, with other instances of the deter
the kingdom, the criminal prosecutions at tbe the Commons of England ; and that Mr. Se mination of the king and duke of York to Sretary Jenkins do, to-morrow morning, go establish absolute power in this country, will up, and impeach him at the bar of the Lords' know how to appreciate the character of a House."
stateman, who was fearful he should be sus: Secretary Jenkins. The sending me up with pected of retiring from office, from disliking this impeachment reflects upon his majesty, iy, the present measures of the court.”
a That the whole House should reflect upon king, and he will not go." All the Commons the king," and for bim to
“ Do what you do will be reversed, if this must pass for docwill with me, I will not go.'
trine, “ That what we do refleets upon the Secretary Jenkins. I said no such thing, king” But, Sir, we are in a ship, and we " That the House reflected on the king,” but have to do with the master, and be with us. * That I take it as a reflection upon the king, if this gentleman would make any sort of ex. my master."
cuse for himself, I would, for my share, pass it His words were thus stated, “This message by; but he has not taken it off, but rather aghad not been put upon me but for the character gravated it. If he has nothing farther to say I bear-I value not my life or liberty; do what for himself, he must withdraw, and then I you will with me, I will not go.".
shall make a motion, for the honour of the Secretary Jenkins. I said “ That this is House. pat upon me, to my apprehension, for the Sir Thomas Meres. I know no difference of character I bear; and do what you will with any persons here ; if Jenkins said " I thought me, I will not go."
sending me with the impeachment reflected on Sir IV. Jones. I am sorry to see any member the king ; and in case it be so, I will suffer any behare himself at this rate. This confirms me thing under that reflection," a man may be in the opinion of the design some men have to mistaken in his thoughts : but, as I take it, he depress the honour of this House. A book has said “ It was his thoughts that the message been written by a member of this House* was a reflection upon the king, and in that case (which, in time, I hope you will consider of) he would suffer any thing rather than a reflec
That the House of Commons, in Hen. 3.'s tion upon the king in the character he bears." time, sprung out of rebellion.” This goes on Sir John Ernly, after he had inspired Jenthis day in the same method. Let a man be of kins with a whisper, said, It is an ill thing to what quality he will, if he be too big to carry stumble at the entrance. I do hope that Jenyour message, he is too big to be your mem- kins intended no disservice to the House, in ber, and not fit to be chosen for one. Thus to what he said, but on a perfect mistake. I did scord the commands of the House, and to be apprehend, and so did some others, that he was too big for a messenger of the House of Com- put upon it, by the gentleman that moved it, mons! Secretaries are sent on messages every in jest (Mr. Coningsby.) But be it in jest, or day, and is he too big for this, to accuse a in earnest, he ought to obey your order ; but person of the Popish Plot? If this be so, sit no every mau cannot subdue his own heart. But longer here but go home. His character is I would know of Jenkins, whether, upon fargreat, but he may be privy to things hid from ther consideration, he will undertake this serus, possibly, by this extraordinary carriage. vice, or no ? I am the worst advocate in the Is it come to that pass, for us to be dealt with world for an obstinate person ; but I humbly all as none of our predecessors ever were be- offer it to your consideration to put the gentlefore? If my brother, or son, dealt with the man upon it, whether he will go, or no, before House thus, I would have him made an ex
he withdraw. ample ; and, for aught I see, he provokes Secretary Jenkins. Since the House is so you more by his explanation; therefore pray favourable as to hear me, I must say I did apgo on.
prehend it a reflection upon the king, which Secretary Jenkins. I am ready, and I think was the reason why I refused the message : myself as much obliged as any man, to obey but if I apprehended it a reflection upon the the commands of the House. The office I have king my master, I am heartily sorry I should under his majesty excludes me not; but the incur the displeasure of the House, and I hope thing stand upon is, That the motion was you will pardon the freedom of the expression, carried on in ridicule. I have an honour for of reflection upon the king. I had no other this, and ever have had for all Houses of consideration whatsoever that induced me to Commons, but in this message I must and will say the words. be excused.
Mr. Fleetwood. I look upon this as so great Sir Henry Capel. “ Ridicule” is not a word a reflection upon the House, from this gentleproper for a House of Commons : what is ap- man, that he ought to come upon his knees, at pointed by them is with all gravity, especially the bar, to ask pardon. where the life of a man is concerned, as it is in Mr. Buscuwen. We are all subject to infirmian impeachment. We are in an unfortunate ties. Seeing the thing is so, Jenkins could not age; now things come to light, more than we apprehend any reflection upon the king in the were before ; that now it must be said, “ Im- message, but he might upon himself. The peachments of treason strike at the king,” and thing was a little smilingly moved ; but since * the bill of excluding the duke, &c. is levelled he bas explained himselt, I would have this at the king,” I am sorry it is said here, as well passed by, as I should desire for myself, upon as in other places. This that we put upon the like occasion. Jenkins is an employment for the king's ser- Lord Cuvendish. The gentleman's fault is a vice, and he tells us, “ It reflects upon the great one ; but after he has now begged the
pardon of the House, and that he is ready to Dr. Brady, wbo served for the University obey the Order of the House, I am willing to of Cambridge.
pass it over. Though it be a great fault, yet
it is too little to give occasion for a breach, at may indict at his suit, or the heir or the wife this time.
of the party murdered may bring an appeal ;* Secretary Jenkins. I am ready to obey the and the king cannot release that appeal, nor orders of the House, I am very sorry that the bis indictment prevent the proceedings in the words which fell from me, gave the House appeal, because the appeal is the suit of the offence,
party, and he hath an interest in it. And so the thing passed over, and he carried " It is, as we conceive, an absolute denial of
justice, in regard (as it is said before) the same Colonel Birch. For the discovery of this suit can be tried no where else. The House Plot of Fitzharris we ought all to give God of Peers, as to impeachments, proceed by thanks, next to the discovery of the Popish | virtue of their judicial power, and not by their Plot. This is a great service to the nation, legislative; and as to that, act as a Court of and it is not the first service that sir William Record, and can deny suitors (especially the Waller has done the nation. If ever the thanks Commons of England) that bring legal comof the House were deserved, it is for this dis-plaints before them, no more than the justices covery ; therefore I move, “ That he may of Westminster Hall, or other courts can deny have the thanks of the House."
any suit, or criminal cause, that is regularly
commenced before them. House of LORDS, March 26.
“ Our law saith, in the person of the king, A Message was brought from the House of “ Nulli negabimus justitiam,' We will deny Commons, by sir Leolin Jenkins and others, in justice to no single person : yet here, as we ap. these words : “ The Commons of England, as- prehend, justice is denied to the whole body of sembled in parliament, having received intor- the people. mation of divers traiterous practices and designs “And this may be interpreted an exerrising of Edward Fitzharris, have commanded me to of an arbitrary power, and will, as we fear, impeach the said Edward Fitzbarris of high have influence upon the constitution of the treason : and I do here, in their names, and in English government, and be an encouragement the names of all the Commons of England, to all inferior courts to exercise the same arbiimpeach Edward Fitzharris of high treason. trary power, by denying the presentments of They have further commanded me to acquaint grand juries, &c. ; for which, at this time, the your lordships, that they will, within conve- chief justice stands impeached in the House of nient time, exhibit to your lordships the Articles Peers. of charge against him."
“ This proceeding may misrepresent the Mr. Attorney General gave the House an House of Peers to the king and people, espeaccount of the Examinations taken against Ed- | cially at this time ; and the more in the partiward Fitzharris ; and said “ He had an order cular case of Edward Fitzharris, who is pubof the king's dated the 9th of March instant, licly known to be concerned in vile and borrid to prosecute the said Fitzharris at law; and treasons against his majesty, and a great conaccordingly he hath prepared an indictment spirator in the Popish Plot, to murder the king, against him at law."
and destroy and subvert the Protestant reliAnd, after a long debate, the question was gion. Kent, Shaftesbury, Macclesfield, Herput, “ Whether Edward Fitzharris shall be bert, Bedford, Stamford, Westmoreland, Salis. proceeded with according to the course of the bury, Paget, Cornwallis, Huntingdon, Clare, common law, and not by way of impeachment Sunderland, Essex, Crewe, P. Wharton, Morin parliament, at this time?" It was resolved daunt, Grey, Monmouth, J. Lovelace." in the affirmative. Memorandum, That before the putting the
House of COMMONS, March 26, p. mm. above question, leave was asked for entering [Debate in the Commons on the Lords reProtestations ; which was granted.
fusing to proceed upon the Impeachment “ Dissentientibus; Because that in all ages against Edward Fitzharris, and directing that it hath been an undoubted right of the Com- he should be proceeded against at common mons to impeach before the Lords any subject, law.]t for treasons or any crime whatsoever; and the reason is, because great offences that influence * “ Which was always to be preferred ; and the government are most effectually determined upon notice thereof, all prosecutions at the in parliament.
king's suit were to stop, till the prosecution at We cannot reject the Impeachment of the the suit of the party was determined.” Note Commons, because that suit or complaint can to former edition. be determined no where else : for if the party
+ " The Commons Impeachment against impeached should be indicted in the King's | Fitzharris was rejected by the Lords upon a Bench, or in any other court, for the same pretence with which lord Nottingham firnished offence, yet it is not the same suit ; for an im- thein. It was this: Edward 5 had got some peachment is at the suit of the people, and they Commoners (the six murderers of Edward 2] have an interest in it. But an indictment is to be condemned by the Lords, of which when the suit of the king : for one and the same the House of Commons complained, an order offence may entitle several persons to several was made, " That no such thing should be suits ; as if a murder be committed, the king doge for the fixture.” Now that related only Sir Thomas Le. I see not what farther use Sir Fr. Winnington. If this refusal of the there is of a parliament, if the House of Peers | Lords was an ordinary Impeachment of monowill be a Court, and not a Court, to serve a pre- polies, or the like, I should not press you in the sent purpose.
matter ; but this is not an ordinary consideraSt William Jones. In a matter so very plain tion, but that which relates to our religion and and conspicuous, as the refusal of this impeach- property; and how the bishops come in to stifle ment by the Lords, I am unwilling to make this impeachment, let God and the word judge! unnecessary doubts. If indeed an inferior court I would know if there be an impeachment had proceeded to judgment in this matter of against a man from the Commons, and no inFitzharris, then it might have been pleaded in dictment upon record against him in the courts bar against the impeachment of the Commons. below, only the attorney general told the Lords, There was an indictment against the Lords in that the king gave him directions to prosecute the Tower, in the King's-Bench, found upon Fitzharris, and there is no record against him. record, and yet that was no impediment to their If the Lords vote, " That the House of Comtrial by the impeachment of the Commons; mons shall not impeach this man,” they may as but in this case of Fitzharris, here is no indict- well vote, that we shall not be Protestants. ment or prosecution begun in any inferior But yet we will be Protestants. I take this to court of law. We have a precedent fresh in be a new Plot against the Protestant religion, memory of the impeachment of a commoner and we impeach this man, and the Lords fairly at the Lords bar, if the Lords doubt that, which say, “ We will not hear it.” If this be the was of my lord chief justice Scrogg$; so that case, I desire you will come to some vote. You we need not spend our time to search for pre- are willing to discover this Plot if you could. If cedents to maintain our right at a conference the attorney-general had prepared the prosecuwith the Lords. Perhaps the Lords Journals tion of Fitzharris, and, as Jones said, if the inare not yet made up into form ; but some mem- terior courts had proceeded to judgment against bers have taken notes out of their minutes, and him, then that judgment is pleaded in bar find that the Lords have dismissed the impeach- against an impeachment. But if our time be tnent against Fitzharris, and left him to trial at short to be here (as I believe it is) pray do not common law, and have ordereil it so by the delay discharging your part in this matter. If Lards“ spiritaal” as well as “temporal ;" the House be satisfied in it, pray make a vote, and in this case they have determined a great to assert your own right. A little while ago, we point, " That the Lords spiritual have power knew, that the judges of the King's-bench disto judge in an impeachment of capital matters," charged the grand jury whilst the indictment which we never own, nor ever shall
, and here against the duke of York, for a popish recuwe are denied jastice by those who have no sant, was depending : This proceeding of the right to vote it. In this the Lords have done Lords, in rejecting the impeachment of Fitza double act of injustice. Seeing then that harris, seems as if the House of Lords intended the Lords have taken upon them to throw out to justify that proceeding of the judges by their this impeachment, &c. let us assert and declare own. It is a just reflection of weakness to doubt our right of impeaching in capital causes, and in a plain matter. If no gentleman doubts of that the Lords have denied us justice in refus- our right of impeaching, pray vote it so. ing the impeachment against Fitzharris ; and Sir Robert Howard. I am glad we are off iben, after having asserted our privilege, let us from one great thing, viz. “ the exclusion of draw up our reasons to maintain it, and make the duke of York from the succession of the it part of our Conference to show the Lords, crown as the best means to preserve the Prohow unreasonable the Lords actions have been testant religion.” I cannot believe but that, in in their proceedings.
this matter of rejecting the impeachment of
Fitzharris, the Lords have cause for what they to proceedings at the king's suit; but it could do. In this matter, precedents you need not not be mean, that an Impeachment from the search; you have instances of very late date: Commons did not lie against a Commoner. But this of Fitzharris seems to me to be a more Judges, secretaries of state, and the Lord dangerous breath than usual, a breath fit to be Keeper were often Commoners. So if this was stifled. There is something in this more than good law, here was a certain method offered to ordinary. If this be a sacred respect in the the Court, to be troubled no more with im- Lords to the common trials of England by juries peachments, by employing only commoners. in the inferior courts, it is strange that, in the la short, the Peers saw the design of this Im- case of Skinner, the Lords should contend with peachment, and were resolved not to receive it, the Commons about the trial of it, though an and so made use of this colour to reject it.” original cause. This refusal of the Lords seems
to me to be no great value of the law of Eng“On this occasion a protest, with reasons, land, but a value of Fitzharris to keep him was admitted for the first time, signed by the from us. When I have seen, in all the speeches duke of Monmouth, and 18 other Lords, which, to-day relating to the duke's exclusion, that the by the means of the Press, for
which it was ori duke goes not single, but all along associated ginally calculated, became the subject matter with popery. I have heard such excellent disof polítical controversy all over the kingdom.” courses to day of that matter, that I am loth to Ralph.
mingle my weakness with them ; but these are
such counsels from the Lords, that I believe will not hear our accusation, their own lives, as hereafter the king will have no cause to thank well as ours, are concerned. This is a strange the Lords, or those that were the originals, for way of proceeding; the same day we impeach involving him in the fatality of them. They Fitzharris, they vote we must not prosecute will make the traiterous libel of Fitzharris the him : now, when all is at stake, we must not copy of their counsels. Dangerfield was a prosecute. If this be so, Holland must submit man reputed most intamous, yet if he would and let the French run over all. This is a discover what he knew of that sham Presby- strange breach of privilege of parliament, and terian Plot, nothing of mercy was too big for tends to the danger of the king's person, and the him : but Fitzharris, a man of no infamy, must destruction of the Protestant Religion, and I be hurried away from Newgate to the Tower, hope you will vote it so. when he was disposed to conless the whole Plot Sir Thomas Player. I shall make you a mo. to those gentlemen who examined him. Are tion, but first I shall say we have had a conyou so lost, that there is no mercy left for the siderable discovery of the former plot. I call Protestant religion ? If the terror of his con- it the old plot, but this of Fitzharris has been dition incline him to discover all, must he now new upon us. This is still a confirmation of be taken out of our hands? We hear of other the intention of murdering the king, the duke things too ; that the French ambassador had a consenting to destroy his own brother and our hand in the contrivance of this Plot with him, king--I have often heard it whispered, that the and can that be enquired into by a common design of Madame's voyage to Dover was to jury, who are to concern themselves in no more, promote the popish religion, but it is plain that than whether Fitzharris be guilty, or not guilty? Justice Godfrey was murdered by the papists, I must confess, that with the carriage of this, i and that the army mustered on Blackheath was have enlarged my suspicion, and I must always raised with intentions to destroy the Protestants in suspect unusual ways. We see that the worst Holland, and to awe the City of London-When of mankind has been pardoned, with all his vil- Fitzharris gave intimation, that he would dislainies about him, upon an ingenuous confession; cover what he knew of this plot, and that two but what provocation has there been from Fitz- or three honourable members of this House had harris, to be thus hurried away to trial at com- examined him, this man was fetched the next mon-law in a disposition to confess all, and so day to Whitehall, and from thence hurried be out of the reach of pardon, should that dis- away to the Tower, and so we were deprived of position continue upon him? But I am per- all farther hopes of discovery from him. We suaded something depends upon this man, as now revive the information from an Impeachwell as upon the bill we ordered to day. When I ment, and now this man must not be brought saw the temper of the House, when Jenkins re- hither to be tried : He must be tried in an infused your Message (See p. 228. ] (and there was ferior court, that his mouth may be stopped, and something in that too) that the House would make put out of capacity to discover. This being the no breach upon it and passed it over with great case, I move, : That if any judges, justices of temper, that now we must lay down all prosecu- the peace, juries, &c. shall proceed upon the tion of the Plot, and that the Protestant reli- trial of this man, that you will vote them guilty gion shall have no mercy! Fitzharris may of his murder, and betrayers of the rights of the merit by his confession where he may reasona- Commons of England." bly hope for the same intercession for his par. don, that much blacker offenders have obtained ; Resolutions :
Hereupon the House came to the following but if his breath be stopped, I am sorry the people should have occasion to say, “ If it were
Resolved, “ That it is the undoubted right of not for the Lords, the Protestant religion might the Commons, in parliament assembled, to imhave been saved." Therefore I move, that, in peach before the Lords in Parliament, any peer the wording of your vote, you will not only or Commoner for treason* or any other crime say, “ That the Lords rejection of this impeachment is not only a subverting the constitu- * “ Mr. Justice Blackstone, 4 Commentaries tion of parliament,” but “ of the Protestant re- c. 19, lays it down, “ That a commoner canligion” also ; and I hope you will do this with not be impeached before the Lords for any cathe same calinness of mind that every man pital offence but only for High Misdemeanors: does wish that loves his religion.
And to prove this position he cites the case of Serjeant Maynard. This damnable popish Simon de Beresford, from Rot. Parl 4 Ed. s. plot is still on foot in England, and I am sure in No. 2, and 6.—This case is as follows: “ When Ireland too ; and what arts and crafts have been in 4th Ed. 3, the king demanded the earls, used to hide this plot! It began with the mur- barons and peers, to give judgment against der of a magistrate (Godfrey,] then with per- Simon de Beresford, who had been a notorious jury and false subornation, and this of Fitzharris accomplice in the treasons of Roger earl of is a second part of that: We sent up an Im- Mortimer, they came before the king in parliapeachment to the Lords against Fitzharris, and ment, and said all with one voice, that the told the Lords, “ That, in due time, we would said Simon was not their peer ; and therefore bring up articles against him," and the Lords they were not bound to judge him as a peer of refuse to try him. In effect, they make us no the land. And when afterwards, in the saine parliament - It'we are the prosecutors, and they parliament, they were prevailed upou, in respect