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That is, says

or misdemeanor; and that the refusal of the Resolved, “That, in the case of Edward Fitz- . Lords to proceed in parliament upon such Im- , harris, who, by the Commons, has been impeachment is a denial of justice, and a violation peached for High-Treason, before the Lords, of the constitution of parliaments.

with a declaration, “ That in convenient time to the notoriety and heinousness of his crimes, moners impeached by the Commons in parto receive the charge and to give judgment liament ?” against him, the following protest and proviso " When Simon de Beresford is charged by the was entered on the parliament roll. * And king in aiding and advising with the said earl it is assented and accorded by our lord the Mortimer in the said treasons and felonies, the

king, and all the great men, in full parliament, said earls, barons, and peers, came before the that albeit the peers, as judges of the parlia- king in parliament, and said, that the said Siment, have taken upon them, in the presence mon was not their peer, and therefore they were of our lord the king, to make and render the not bound to judge hiin, as a peer of the land.' said judgment ; yet the peers, who now are - This accusation against Simon de Beresford or shall be in time to come; be not bound or was at the king's suit. Rot. Parl. vol. 3, p. 55, ebarged to render judgment upon others than No. 4.-Notwithstanding the declaration of the peers ; nor that the peers of the land have Lords, they afterwards condemn the said power to do this, but thereof ought ever to be Simon de Beresford and others, not peers, to be discharged and acquitted : and that the afore- executed for the said treasons and felonies " said judgment now rendered be not drawn to But immediately declare, " That though they * example or consequence in time to come, had from this time proceeded to give judgment ' whereby the said peers may be charged here- upon those that were no peers, hereafter these after to judge others than their peers, contrary judgments should not be drawn into example

to the laws of the land, if the like case happen, or consequence, so that they should be called wbich God forbid.'-Rot. Parl. vol. 2, p. 53, upon to judge others than their peers, contrary 64. See this case, in the original language, to the law of the land. Rot. Parl. vol. 2, p. with the opinion of the judges thereupon, in 54, No. 6–In the 29th ch. of Magna Charta, the Appendix to this vol. No. 10.—How far the 9th Hen. 3, it is said, ' Nec super eum ibimus, conclusion drawn by sir W. Blackstone from nec mittemus, nisi per legale judicium parium this case, which was a prosecution at the suit suorum, vel per legem terræ. of the king, has been admitted to be law, with sir Edward Coke, and Inst. p. 46. No man pegand to prosecutions, brought before the shall be condemned at the king's suit

, either beLords by impeachment at the suit of the Com- fore the king in his bench, where the pleas are, mons, will appear from the great number of Curam Rege, (and so are the words, nec super instances

, which occur in the following part of eum ibimus, to be understood) nor before any this volume, (subsequent in point of time to other commissioner or judge whatever, (and so this of Simon de Beresford in the year 1990) are the words ' nec super eum mittemus,' to be where commoners have been impeached be understood).' And again, 2 Iust. p. 48, in. fore the Lords for capital offences, and in which commenting upon the words, Per judicium the Lords bave not made this objection. Lord . parium suorum,' sir Edward Coke says, Hollis in his work, concerning the judicature of Note, as is before said, That this is to be unthe House of Peers, pablished in 1669, speak derstood of the king's suit ; for it an aping of the case of Simon de Beresford, gives it peal be brought

against a Lord of parliament, as his opinion, That the protestation of the which is the suit of the party, there he shall be Lords

, not to sit in judgment upon any but tried, not by, his peers, but by an ordinary jury: peers, was a mere order of the House of Lords, Por that this statute extendeth only to the king's alterable at pleasure.'-On the 2nd of July, suit. So in the lord Dacre's case, in the

26th 1689, (See the Case of sir Adam Blair and of Henry 8th, on a question, Whether he others in this Collection) a doubt arose in the might wave his trial by his peers, and be tried House of Lords, Whether this record of the by the country, the judges all agreed, that he oth of Ed. 3, was a statute ? And the ques- could not. . For the statute of Magna Charta tion being put to the judges, they answer. As is in the negative, “ Nec super eum ibimus, nisi appears to them by the aforesaid copy, they per legale judicium parium suorum,' that is believe it is a statute ; but, if they saw the at the king's suit upon an indictment. Toll itself, they could be more positive therein. Kelyng's Rep. p. 56. And, in the tract cited It was then proposed to ask the judges, Whe- before in the note, p. 54, sir William Jones says, ther the Lords, by this statute, be barred from It is evident from the roll itself, in the case trying a commoner upon an 'impeachment of of Simon de Beresford, and the other records, the House of Commons ? But the previous that the Lords did judge those commoners con question being put, it passed in the negative. trary to the law of the land, that is, at the in

"In the ist vol. of the Lords Debates (See Ap- stance of the king ; so that judgment was pendix to 4 Cobb. Parl. Hist. No. xv.p. clxiii.) given at the king's suit, in a way not warranted is a pamphlet written by sir William Jones, and by the law and custom of parliament, or any Cisonesed

, • Whether, by the law and custom word in that record, which imports a restriction of garliament, the Lords ought to try com- of that lawful jurisdiction, which our constitu

they would bring up the Articles against him ;" by way of Impeachment in parliament, at this for the Lords to resolve, “ That the said Ed- time, is a denial of Justice, and a violation of ward Fitzharris should be proceeded with ac- the constitution of parliaments, and an obstruccording to the course of common-law," and not tion to the farther discovery of the Popish Plot, tion placeth in the Lords to try commoners, in a commoner is no crime, and subject to no when their cases should come before them law- punishment.” 4 Hats. Prec. 200. fully, that is, at the suit of the Commons by the House of Lords, ch. 16, p. 92, says,

“Sir Matthew Hale, in the Jurisdiction of impeachment.” 1 Hats. Prec. pp. 54, 67. Mr. Hatsell, in support of bis doctrine, that 4th of Ed. 3, being done thus solemnly, in

Some have thought this declaration of the cominoners may be impeached of High-treason pleno parliamento, was a statute or act of before the House of Lords, cites the case of parliament. But that seems not so clear. It Chief Justice Scroggs, as to which he notices that the Chief Justice did not as a commoner Lords as could be made, less than an act of

was certainly as solemn a declaration by the plead to the Lords' jurisdiction, and that though parliament ; and it is as high an evidence several members expressed their doubts how against the jurisdiction of the Lords, to try or far the Commons ought to impeach for High; judge a commoner, in a criminal cause, as can are not declared to be such by the statute of possibly be thought of: (1.) Because done by treasons, 25 Edward 3, no person doubted but (2.) Because it is a declaration by the Lords in

way of declaration, to be against law; and, that if the crime charged did amount to High disaffirmance of their own jurisdiction; which Treason, sir William Scroggs a commoner was an object of impeachment though for a ca- commonly judges chuse rather to amplify, if it pital offence. He also cites the case of the earl of may be, ihan to abridge." 4 Hatsell, Prec. p. Tyrone, ordered to be impeached Jan. the 6th,

For more precedents see lord Rochester's 1881 (See 4 Cobb. Parl. Hist. 1278), and he Report in the Case of sir Adam Blair and others, mentions that sir W. Jones, in the debate, says; in the year 1689, in this Collection.

“ There is no question, but a peer of Ireland is but a commoner in England; and no question Roger North has a passage on this subject but he may be proceeded against by im- very well worth consideration : peachment, as well as by common trial.

“ At the Osford parliament, when the blackYou cannot mistrust your managers, por arod knocked at the door, sir Wm. Jones was in common jury; but the accusation of lord the midst of a speech to infame the House Tyrone arising in parliament, it is properest he be tried in parliament." Mr. Boscawen says, the House might impeach commoners, and an

upon the subject of Fitzharris ; proving that * No commoner can be tried by the Lords, but swering the objections from Magna Charta, viz. by impeachment of the Commons. It appears that sir J. Trevor, sir Francis Winnington, the LexTerræ,'

and was interrupted by the dis

per judicium parium,' he was coming to and serjeant Maynard, concurred in this pro- solution. I could have been content it had ceeding.” 4 Hats. Prec. p. 110.

staid a little longer, that his whole argument So judge Berkley was impeached for High- might come to us; because the strength of the Treason, see his Case, vol. 3, p. 1983, of this objection, which he was a going to answer, lies Collection, see too the Case of Jermyn, Piercy, in this, viz. that Ler Terre is not contrary to, and others, mentioned 4 Hatsell 154, where a nor doth repeal or restrain the • Judiciom reference is made to lord Clarendon's account of parium,' but both are of absolute extent, the their plot and also to the queen's representation former as to fact, and the other as to the law, of it. There is likewise an account of it in May's | when the fact is stated. The former is History. Mr. Hatsell also cites the Case of Guilty or Not Guilty, that is per juDaniel O'Neile impeached of High-Treason indicium parium ; but there may be other the year 1641, and he quotes from sir William pleas, as misnoner, demurrers, exceptions, Jones's pamphlet, “ If this (that the Lords could pardons, and contessions, upon which the issue not try a commoner upon an impeachment for i is wholly to the court ; as also the punishment High-Treason) was so, it would be in the power after verdict of the peers, and all that refers to of the king, by making ouly commoners mi- the Les Terre. So as, by that distinction in nisters of state, to subvert the government by : Magua Charta, the offices of the jury, and of the their contrivances when they pleased. Their couri, one for fact, and the other for law, are greatness would keep them out of the reach ot' kept distinct. And another objection was to be ordinary courts of justice ; or their treasons answered, which is that, by an impeachment might not perhaps be within the statute, but and judgment of the Lorus, a commoner is desuch as fall under the cognizance of no other prired of bis legal challenges." Eram. 508. court than the parliament, and if the people. The differences of opinjon which have premight not of right demand justice there, they ; vailed respecting this matter strongly illustrate might, withom fear of punishment, act the the unsettledness of the · Lex & Consuetudo most destructive villainies against the kingdom ; . Parliamenti,' (see the Case of Shirley and it would also follow, that the same fact, which Fagy, vol. 6. p. 1121 of this Collection. See too in a pear is treason, and punishable with deaib, Mr. Hatsed's uncertainty as to wbether the

See

and of great danger to his majesty's person, and other person lying under an Impeachment in the Protestant Religion.”

parliament for the same crimes for which he or Resolved, " That for any inferior court to they stand impeached, is an high breach of the proceed against Edward Fitzharris, or any privilege of parliament.”

Immediately after these proceedings, namely Commons Journals are public records, Prece

on Monday the 28th of March, the parliament dents, vol. 3, c. 4.

was dissolved. Sir John Reresby, after noticing that the impeachment of Fitzharris was not done to destroy, but to serve him in opposition to the This last parliament of king Charles the court, says,

Second, he dissolved at Oxford, on March 28th, The Lords refused to receive Fitzharris's in Roger North's Examen, p. 104]. After

1681. (See the particulars of the dissolution impeachment; observing that, he being already, which event he governed without a parliament, indicted at common law, and in a way of trial

[See a note to the case of Richard Thompson, by his peers, as Magna Charta directed, they could not perceive how their House could take of his reign with a sort of legal tyranny, or

supra, p. 7.] during the remaining four years notice of his offence. The Commons hereupon abuse of the legal powers with which the congrew angry with the Lords, and voted that such stitution had invested him, employing his court their lordships proceeding was a delay of jus- of King's-bench, (as his father bad employed tice, a breach of the privilege of parliament, the court of Star-chamber) to persecute his suband a bar to the further discovery of the Popish jects under the forms of law, by taking away Piot; and that for any inferior court to pro- the Charter of the city of London, and procur, ceed therein, while an impeachment was depending, was an high breach of the privilege ing the surrenders of the

Charters of several of parliament. The heats grew, in short, to an

other corporations that sent members to parliaexeess in both Houses, both as to this, and the members of parliament less free and popular

ment, and thereby making the elections of Bil of Exclesion. The Commons, however, than before ; and by over-severe punishments, were of opinion, that the king would give way enormous fines, and verdicts for excessive dato tiem, he having already made such advances towards their measures, and being in mages, given in civil

actions by corrupt juries, such thorough distress for money, besides that Mr. Baron Maseres's Preface to the Debates in many who were near the king, urged them to the year 1680, on the Exclusion Bill, edition of persist still in their endeavours.- I was at the 1807. Of this period Mr. Fox says,

" The king's couchée, as I was three times in one whole history of the remaining part of the week; his discourse ran generally upon the reign exhibits an uninterrupted series of attacks impossibility of any thing like the Popish Plot, and the contradictions of which it was made upon the liberty, property, and lives of his subup: that he intended Fitzharris should come of this period, would be to enumerate every ar

jects. To give an account of all the oppression upon his trial immediately: that in all affairs, rest, every trial, every sentence, that took place relating to bimself, the laws should have their in questions betweeủ the crown and the subregular course; and that, whatever his own

jects.” private opinion might be, he would govern by

And Blackstone speaks thus : “ The point them, and by them only.-Fitzharris was ar

of time at which I would choose to fix raigned at the King's-bench bar, where by his the theoretical perfection of our public law is counsel he refused to plead; because he stood the year 1679, after the Habeas Corpus act was there was to be indicted for; though the im- passed; and that for licensing the press had expeachment specified no particular treasons, followed it were times of great practical oppres

pired : though the years which immediately which the indictment did. The counsel for sion.”_" It is far from my intention to palliate the king said, his plea was evasive, it not ap

or defend many very iniquitous proceedings, pearing whether the same crimes were intended by the 'one, as by the other.

contrary to all law, in that reign, through the * This point was argued at the bar, but the ariifice of wicked politicians, both in and out

of

employment. What seems incontestable is this ; case being quite extraordinary, both in its own nature, as well as because of the severe vote of that by the law, as it then stood, (notwithstandthe Commons at Oxford, the judges took time ing some invidious, nay dangerous branches of to consider of it, but two days afterwards

pro- the rest more clearly defined) the people had as

prerogative have since been lopped off, and nounced judgment for the king; and in the end, Fitzharris received sentence of death, for large a portion of real liberty, as is consistent his treason, and was executed accordingly.”

with a state of society; and sufficient power,

residing in their own hands, to assert and preMr. Hatsell observes, That the period at which serve that liberty, if invaded by the royal prethe instance happened of the Impeachment of rogative. For which I need but appeal to the Fitzharris, and the circumstances attending it, memorable catastrophe of the next reign. For Tender any arguments or conclusions that may when king Charles's deluded brother attempted be drawn froso that proceeding of very little to enslave the nation, he found it was beyond weight.

his power: the people both could, and did, re

R

VOL. VIII.

sist him; and, in conseqnence of such resist. , best moment of the best constitution that ever ance, obliged him to quit his enterprize and his human wisdom framed. What follows ? A throne together.” B. Comm. B. 4, c. 33, s. 5. time of oppression and misery, not arising

from external or accidental causes, such as Upon this Mr. Fox exc'aims :

war, pestilence, or famine, nor even from any “ What a field for meditation does this short such alteration of the laws as might be supposed observation, from such a man, furnish! What to impair this boasted perfection, but from a reflections does it not suggest to a thinking corrupt and wicked administration, wbich all mind, upon the inefficacy of human laws, and the so much admired checks of the constitution the imperfections of human constitutions! We were not able to prevent. How vain then, how are called from the contemplation of the pro- idle, how presumptuous, is the opinion, that gress of our constitution, and our attention fix- laws can do every thing! and how weak and ed with the most minute accuracy to a particu- pernicious the maxim founded upon it, that Jar point, when it is said to have risen to its measures, not men, are to be attended to.". utmost perfection. Here we are then at the Fox's Hist. of the Reiga of James 2, p. 21.

Proceedings against EDWARD FITZharris in the King's-Bench,

upon his Arraignment and Plea* to an Indictment for High

Treason : 33 CHARLES II. A. D. 1681. ON Wednesday April 27, 1681, the Grand- bert Sawyer) desired, That some of that Grand. juries for the county of Middlesex were sworn; jury wbich served for the hundreds of Edmonand after the Charge delivered by Mr. Justice ton and Gore (that for Ossulston hundred beJones, his majesty's Attorney-General (sir Ro. ing immediately adjourned for a week) might

• I do appoint Francis Tyton and Thomas only copied by himself: but he had no sort of * Basset to print the Arraignment and Plea of proof to support this. Cornish the sheriff go• Edward Fitzharris, with the Arguments and ing to see him, be desired he would bring him • Proceedings thereupon, and that no others a justice of peace; for he could make a great • presume to print the same. F. PEMBERTON.' discovery of the plot, far beyond all that was In Macpherson's “ Life of King James,” heart went and acquainted the king with this:

yet knownCornish in the simplicity his written by himself, (see Introduction to lord Clarendon's Case, vol. 6, p. 291, of this Col- for which he was much blamed; for it was lection), is the following passage : “ April 27, been stopt: but his going first with it to the

said, by this means that discovery might hare . 1081, Fitzharris's indictment before the GrandJury to-morrow. The king was confident it court proved afterwards a great happiness both would be found; and though all the practices and some privy counsellors were upon that

to himself and to many others. The secretaries imaginable were used to pack a petty jury, yet sent to examine Fitzharris; to whom he gave the proofs were so clear against him, that they would bardly find twelve men so wicked, as to which the duke was concerned, with many

a long relation of a practice to kill the king, in perjure theniselves so impudently, against law other particulars which need not be mentioned; and justice in the face of the world."

for it was all a fiction. The secretaries came " A few days before the king went to Ox- to him a second time to examine him farther : ford, Fitzharris, an Irish Papist, was taken up he boldly stood to all he had said : and he defor framing a malicious and treasonable libel sired that some justices of the city might be against the king and his whole family. He brought to him. So Clayton and Treby went had met with one Everard, who pretended to to him : and he made the same pretended dismake discoveries, and as was thought had covery to them over again ; and insinuated, mixed a great deal of falsehood with some that he was glad it was now in safe hands that truth : but he held bimself in general terms, would not stifle it. The king was highly ofand did not descend to so many particulars as fended with this, since it plainly shewed a disthe witnesses had done. Fitzbarris and he trust of his ministers : and so Fitzbarris was had been acquainted in France : so on that con- removed to the Tower ; which the court refidence he shewed him his libel : and he made solved to make the prison for all offenders, till an appointment to come to Everard's chamber, there should be sheriffs chosen more at the who thought he intended to trepan him, and so king's devotion. Yet the deposition made to had placed witnesses to overhear all that past. Clayton and Treby was in all points the same Fitzharris left the libel with him, all writ in his that he had made to the secretaries; so that own hand: Everard went with the paper and there was no colour for the pretence afterward with bis witnesses and informed against Fitz- put on this, as if they had practised on him. harris, who upon that was committed. But “ The parliament met at Oxford in March : seeing the proof against him was like to be full, the king opened it with severe reflections on he said, the libel was drawn by Everard, and the proceedings of the former parliament. He

be present at the stearing of the witnesses in the Tower of London, which was granted ; upon an Indictment for High Treason, to be but the Grand-jury being under some scruples preferred against Edward Fitzharris, prisoner against receiving of the bill, desired the opinion said, he was resolved to maintain the succes- court that I might be ordered to come to him, sion of the crown in the right line: but for upon what reason I could never imagine : à quieting his people's fears he was willing to put rule was made that I might speak to him in the the administration of the government into Pro- presence of the lieutenant of the Tower. I testant hands. This was explained by Ernley went to him, and pressed him vehemently to and Littleton to be meant of a prince regent, tell the truth, and not to deceive himself with with whom the regal prerogative should be false hopes. I charged him with the improlodged during the duke's life. Jones and Lit- babilities of his discovery; and laid home to tleton managed the debate on the grounds for him the sin of perjury, chiefly in matters of merly mentioned : but in the end the propo- blood, so fully, that the lieutenant of the Tower sition was rejected; and they resolved to go made a very just report of it to the king, as the again to the Bill of Exclusion, to the great joy king himself told me afterwards. When he of the dake's party, who declared themselves saw there was no hope, he said the lord How. more against this than against the exclusion it ard was the author of the libel. Howard was self

. The Commons resolved likewise to take so ill thought of, that, it being known that there the management of Fitzbarris's affair out of was a familiarity between Fitzharris and him, the bands of the court: so they carried to the it was apprehended from the beginning that he Lords bar an impeachment against him, which was concerned in it. I had seen him in lord was rejected by the Lords upon a pretence with Howard's company, and had told him how inwhich lord Nottingham furnished them. It decent it was to have such a man about him was this : Edward the third had got some he said he was in want, and was as honest as commoners to be condemned by the Lords; of his religion would suffer him to be. I found which when the House of Commons com- out afterwards, that he was a spy of the lady plained, an order was made, that no such thing Portsmouth'sand that he had carried lord should be done for the future. Now that re. Howard to her: and, as lord Howard himself lated only to proceedings at the king's suit: told me, she brought the king to talk with him but it could not be meant that an impeachment twice or thrice. The king, as he said, entered from the Commons did not lie against a com- into a particular scheme with him of the new moner, Judges, Secretaries of State, and the frame of his ministry in case of an agreement, Lord Keeper were often commoners : so if this which seemed to biñ to be very near. As soon was good law, bere was a certain method offered as I saw the libel I was satisfied that lord Howto the court, to be troubled no more with im- ard was not concerned in it: it was so ill peachments, by employing only commoners. drawn, and so little disguised in the treasonable In short, the peers saw the design of this im- part

, that none but a man of the lowest form peachment

, and were resolved not to receive could be capable of making it. The report of it: and so made use of this colour to reject it. lord Howard's being charged with this was Upon that the Commons past a vote, that jus- over the whole town a day before any warrant tice was denied them by the Lords: and they was sent out against him; which made it apalso voted, that all those who concurred in any pear, that the court had a mind to give him sort in trying Fitzbarris in any other court time to go out of the way. He came to me, were betrayers of the liberties of their country. and solemnly vowed he was not at all concerned

" Fitzharris's trial came on in Easter Term : in that matter : so I advised him not to stir Scroggs was turned out, and Pemberton was from home. He was committed that night: I made chief justice. His rise was so particular, had no liking to the man's temper : yet he inthat it is worth the being remembered : in his sinuated himself so into me, that without being youth he mixed with such lewd company that rude to him it was not possible to avoid him. be quickly spent all he had ; and ran so deep He was a man of a pleasant conversation but in debt that he was cast into a jail, where he he railed so indecently

both at the king and the lay many years : but he followed his studies so clergy, that I was very uneasy in his com. close in the jail, that he became one of the pany: yet now, during his imprisonment, I ablest men of his profession. He was not did him all the service I could. But Algernoon wholly for the court: he had been a judge be- Sidney took his concerns and his family so to fore

, and was turned out by Scroggs's means : heart, and managed every thing relating to him and now he was raised again, and was after with that zeal, and that care, that none but a wards made chief justice of the other bench : monster of ingratitude could have made him but not being compliant enough, he was turned the return that he did

afterwards. When the out a second time, when the court would be bill against lord Howard was brought to the served by none but by men of a thorough paced Grand-Jury, Fitzharris's wife and maid were

Fitzbarris pleaded the im- the two witnesses against him: but they did peachment in parliament: but since the Lords so evidently forswear themselves, that the AtIrad thrown that out it was over-ruled.

torney-General withdrew it. Lord Howard "Fitzbarris was tried next: and the proof lay in the Tower till the Michaelmas term; Was so full that he was cast. He moved in and came out by the Habeas Corpus. I went

obsequioasness.

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