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or misdemeanor; and that the refusal of the Lords to proceed in parliament upon such Impeachment is a denial of justice, and a violation of the constitution of parliaments.

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Resolved, "That, in the case of Edward Fitz-. harris, who, by the Commons, has been impeached for High-Treason, before the Lords, with a declaration, "That in convenient time moners impeached by the Commons in parliament ?"

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to the notoriety and heinousness of his crimes, to receive the charge and to give judgment 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 Si'ment, 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 him, 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. 53, charged 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, ifthe like case happen, or consequence, so that they should be called 'which God forbid.'-Rot. Parl. vol. 2, p. 53, upon to judge others than their peers, contrary 54. 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 suitsuorum, vel per legem terræ. That is, says of the king, has been admitted to be law, with sir Edward Coke, 2nd Inst. p. 46. No man regard 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 Coram Rege, (and so are the words, nec super justances, 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 1330) are the words' nec super eum mittemus,' to be where commoners have been impeached be- understood).' And again, 2 Inst. p. 48, in fore the Lords for capital offences, and in which commenting upon the words, Per judicium the Lords have 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, published in 1669, speak-derstood of the king's suit; for if 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, For 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 4th 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 it 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.' roll 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 trying a commoner upon an impeachment of the House of Commons? But the previous question being put, it passed in the negative. "In the 1st vol. of the Lords Debates (See Appendix to 4 Cobb. Parl. Hist. No. xv. p. clxiii.) is a pamphlet written by sir William Jones, and published in 1631, in which this question is discussed, Whether, by the law and custom of parliament, the Lords ought to try com

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It is evident from the roll itself, in the case of Simon de Beresford, and the other records, that the Lords did judge those commoners contrary to the law of the land, that is, at the instance of the king; so that judgment was given at the king's suit, in a way not warranted by the law and custom of parliament, or any other law of the kingdom: but there is not a word in that record, which imports a restriction of that lawful jurisdiction, which our constitu

they would bring up the Articles against him;" for the Lords to resolve, "That the said Edward Fitzharris should be proceeded with according to the course of common-law," and not

tion placeth in the Lords to try commoners, when their cases should come before them law

fully, that is, at the suit of the Commons by impeachment." Hats. Prec. pp. 54, 67.

"Sir Matthew Hale, in the Jurisdiction of

by way of Impeachment in parliament, at this time, is a denial of Justice, and a violation of the constitution of parliaments, and an obstruction to the farther discovery of the Popish Plot, in a commoner is no crime, and subject to no punishment." 4 Hats. Prec. 200. the House of Lords, ch. 16, p. 92, says, Mr. Hatsell, in support of his doctrine, that 4th of Ed. 3, being done thus solemnly, in "Some have thought this declaration of the commoners may be impeached of High-treason before the House of Lords, cites the case of parliament. But that seems not so clear. It ' pleno parliamento,' was a statute or act of 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 Treason a person as guilty of crimes which are not declared to be such by the statute of treasons, 25 Edward 3, no person doubted but that if the crime charged did amount to High Treason, sir William Scroggs a commoner was an object of impeachment though for a capital offence. He also cites the case of the earl of Tyrone, ordered to be impeached Jan. the 6th, 1681 (See 4 Cobb. Parl. Hist. 1278), and he mentions that sir W. Jones, in the debate, says, "There is no question, but a peer of Ireland is but a commoner in England; and no question but he may be proceeded against by impeachment, as well as by common trial. You cannot mistrust your managers, nor a common jury; but the accusation of lord Tyrone arising in parliament, it is properest he be tried in parliament." Mr. Boscawen says, No commoner can be tried by the Lords, but by impeachment of the Commons.' It pears that sir J. Trevor, sir Francis Winnington, and serjeant Maynard, concurred in this proceeding." 4 Hats. Prec. p. 110.

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So judge Berkley was impeached for HighTreason, see his Case, vol. 3, p. 1283, of this Collection, see too the Case of Jermyn, Piercy, and others, mentioned 4 Hatsell 134, where a reference is made to lord Clarendon's account of their plot and also to the queen's representation of it. There is likewise an account of it in May's History. Mr. Hatsell also cites the Case of Daniel O'Neile impeached of High-Treason in the year 1641, and he quotes from sir William Jones's pamphlet," If this (that the Lords could not try a commoner upon an impeachment for High-Treason) was so, it would be in the power of the king, by making only commoners ministers of state, to subvert the government by their contrivances when they pleased. Their greatness would keep them out of the reach of ordinary courts of justice; or their treasons might not perhaps be within the statute, but such as fall under the cognizance of no other court than the parliament; and if the people might not of right demand justice there, they might, without fear of punishment, act the most destructive villainies against the kingdom; it would also follow, that the same fact, which in a peer is treason, and punishable with death,

possibly be thought of: (1.) Because done by (2.) Because it is a declaration by the Lords in way of declaration, to be against law; and, disaffirmance of their own jurisdiction; which commonly judges chuse rather to amplify, if it may be, than to abridge." 4 Hatsell, Prec. P.

285.

Report in the Case of sir Adam Blair and others, For more precedents see lord Rochester's in the year 1689, in this Collection.

Roger North has a passage on this subject very well worth consideration:

"At the Oxford parliament, when the blackrod knocked at the door, sir Wm. Jones was in the midst of a speech to inflame the House the House might impeach commoners, and anupon the subject of Fitzharris; proving that swering the objections from Magna Charta, viz.

the Lex Terræ,' and was interrupted by the disper judicium parium,' he was coming to solution. I could have been content it had staid a little longer, that his whole argument might come to us; because the strength of the objection, which he was a going to answer, lies in this, viz. that Lex Terra is not contrary to, nor doth repeal or restrain the Judicium

parium,' but both are of absolute extent, the former as to fact, and the other as to the law, when the fact is stated. The former is Guilty or Not Guilty, that is per ju'dicium parium; but there may be other pleas, as misnomer, demurrers, exceptions, pardons, and confessions, upon which the issue is wholly to the court; as also the punishment after verdict of the peers, and all that refers to the Lex Terra. So as, by that distinction in Magna Charta, the offices of the jury, and of the court, one for fact, and the other for law, are kept distinct. And another objection was to be answered, which is that, by an impeachment and judgment of the Lords, a commoner is deprived of his legal challenges." Exam. 508.

The differences of opinion which have prevailed respecting this matter strongly illustrate the unsettledness of the Lex et Consuetudo

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Parliamenti,' (See the Case of Shirley and Fagg, vol. 6. p. 1121 of this Collection. See too Mr. Hatsoll's uncertainty as to whether the

and of great danger to his majesty's person, and the Protestant Religion."

Resolved, "That for any inferior court to proceed against Edward Fitzharris, or any

Commons Journals are public records, Precedents, vol. 3, c. 4.

Sir John Reresby, after noticing that the impeachment of Fitzharris was not done to destroy, but to serve him in opposition to the court, says,

other person lying under an Impeachment in parliament for the same crimes for which he or they stand impeached, is an high breach of the privilege of parliament."

Immediately after these proceedings, namely on Monday the 28th of March, the parliament was dissolved.

This last parliament of king Charles the Second, he dissolved at Oxford, on March 28th, 1681. "The Lords refused to receive Fitzharris's in Roger North's Examen, p. 104]. After [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 by his peers, as Magna Charta directed, they [See a note to the case of Richard Thompson, 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 had 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 Plot; and that for any inferior court to pro- the Charter of the city of London, and procurceed therein, while an impeachment was de-ing the surrenders of the Charters of several pending, was an high breach of the privilege other corporations that sent members to parliaof parlament. The heats grew, in short, to an excess in both Houses, both as to this, and the members of parliament less free and popular ment, and thereby making the elections of Bill 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 them, he having already made such admages, given in civil actions by corrupt juries, vances towards their measures, and being in packed by the sheriffs for the purpose.' "" See 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, 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 impossibility of any thing like the Popish Plot, upon the liberty, property, and lives of his subreign exhibits an uninterrupted series of attacks and the contradictions of which it was made jects. To give an account of all the oppression up: that he intended Fitzharris should come of this period, would be to enumerate every arupon his trial immediately: that in all affairs, rest, every trial, every sentence, that took place relating to himself, the laws should have their in questions between the crown and the subregular course; and that, whatever his own jects." private opinion might be, he would govern by them, and by them only.-Fitzharris was arraigned at the King's-bench bar, where by his counsel he refused to plead; because he stood in parliament impeached for the crimes he there was to be indicted for; though the impeachment specified no particular treasons, which the indictment did. The counsel for the king said, his plea was evasive, it not appearing whether the same crimes were intended by the one, as by the other.

This point was argued at the bar, but the case being quite extraordinary, both in its own nature, as well as because of the severe vote of the Commons at Oxford, the judges took time to consider of it, but two days afterwards pronounced judgment for the king; and in the end, Fitzharris received sentence of death, for his treason, and was executed accordingly."

Mr. Hatsell observes, That the period at which the instance happened of the Impeachment of Fitzharris, and the circumstances attending it, render any arguments or conclusions that may be drawn from that proceeding of very little weight.

VOL. VIII.

"The

And Blackstone speaks thus: "The point of time at which I would choose to fix

the theoretical perfection of our public law is the year 1679, after the Habeas Corpus act was passed; and that for licensing the press had exfollowed it were times of great practical opprespired: though the years which immediately sion."" It is far from my intention to palliate or defend many very iniquitous proceedings, contrary to all law, in that reign, through the artifice of wicked politicians, both in and out of employment. What seems incontestable is this; that by the law, as it then stood, (notwithstandthe prerogative have since been lopped off, and ing some invidious, nay dangerous branches of the rest more clearly defined) the people had as large a portion of real liberty, as is consistent

with a state of society; and sufficient power, residing in their own hands, to assert and preserve that liberty, if invaded by the royal prerogative. For which I need but appeal to the memorable catastrophe of the next reign. For when king Charles's deluded brother attempted to enslave the nation, he found it was beyond his power: the people both could, and did, reᎡ

sist him; and, in consequence of such resist. ance, obliged him to quit his enterprize and his throne together." B. Comm. B. 4, c. 33, s. 5. Upon this Mr. Fox exc'aims :

best moment of the best constitution that ever human wisdom framed. What follows? A time of oppression and misery, not arising from external or accidental causes, such as war, pestilence, or famine, nor even from any such alteration of the laws as might be supposed to impair this boasted perfection, but from a corrupt and wicked administration, which all the so much admired checks of the constitution were not able to prevent. How vain then, how idle, how presumptuous, is the opinion, that

"What a field for meditation does this short observation, from such a man, furnish! What reflections does it not suggest to a thinking mind, upon the inefficacy of human laws, and the imperfections of human constitutions! We are called from the contemplation of the progress of our constitution, and our attention fix-laws can do every thing! and how weak and ed with the most minute accuracy to a particuJar point, when it is said to have risen to its utmost perfection. Here we are then at the

pernicious the maxim founded upon it, that measures, not men, are to be attended to." Fox's Hist. of the Reign 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 Grandjuries for the county of Middlesex were sworn;jury which 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 Basset to print the Arraignment and Plea of ‹ Edward Fitzharris, with the Arguments and 'Proceedings thereupon, and that no others 'presume to print the same. F. PEMBERTON.' ,,

In Macpherson's "Life of King James," written by himself, (see Introduction to lord Clarendon's Case, vol. 6, p. 291, of this Collection), is the following passage: "April 27, 1681, Fitzharris's indictment before the GrandJury to-morrow. The king was confident it would be found; and though all the practices imaginable were used to pack a petty jury, yet the proofs were so clear against him, that they would hardly find twelve men so wicked, as to perjure themselves so impudently, against law and justice in the face of the world.”

"A few days before the king went to Oxford, Fitzharris, an Irish Papist, was taken up for framing a malicious and treasonable libel against the king and his whole family. He had met with one Everard, who pretended to make discoveries, and as was thought had mixed a great deal of falsehood with some truth but he held himself in general terms, and did not descend to so many particulars as the witnesses had done. Fitzharris and he had been acquainted in France: so on that confidence he shewed him his libel: and he made an appointment to come to Everard's chamber, who thought he intended to trepan him, and so had placed witnesses to overhear all that past. Fitzharris left the libel with him, all writ in his own hand: Everard went with the paper and with his witnesses and informed against Fitzharris, who upon that was committed. But seeing the proof against him was like to be full, he said, the libel was drawn by Everard, and

only copied by himself: but he had no sort of proof to support this. Cornish the sheriff going to see him, he desired he would bring him a justice of peace; for he could make a great discovery of the plot, far beyond all that was heart went and acquainted the king with this: yet known. Cornish in the simplicity of his for which he was much blamed; for it was been stopt: but his going first with it to the said, by this means that discovery might have to himself and to many others. The secretaries court proved afterwards a great happiness both and some privy counsellors were upon that sent to examine Fitzharris; to whom he gave which the duke was concerned, with many a long relation of a practice to kill the king, in other particulars which need not be mentioned;

for it was all a fiction. The secretaries came to him a second time to examine him farther: he boldly stood to all he had said: and he desired that some justices of the city might be brought to him. So Clayton and Treby went to him: and he made the same pretended discovery to them over again; and insinuated, that he was glad it was now in safe hands that would not stifle it. The king was highly offended with this, since it plainly shewed a distrust of his ministers: and so Fitzharris was removed to the Tower; which the court resolved to make the prison for all offenders, till there should be sheriffs chosen more at the king's devotion. Yet the deposition made to Clayton and Treby was in all points the same that he had made to the secretaries: so that there was no colour for the pretence afterward put on this, as if they had practised on him.

"The parliament met at Oxford in March: the king opened it with severe reflections on the proceedings of the former parliament. He

be present at the swearing of the witnesses upon an Indictment for High Treason, to be preferred against Edward Fitzharris, prisoner said, he was resolved to maintain the succession of the crown in the right line: but for quieting his people's fears he was willing to put the administration of the government into Protestant hands. This was explained by Ernley and Littleton to be meant of a prince regent, with whom the regal prerogative should be lodged during the duke's life. Jones and Littleton managed the debate on the grounds for merly mentioned: but in the end the proposition was rejected; and they resolved to go again to the Bill of Exclusion, to the great joy of the duke's party, who declared themselves more against this than against the exclusion itself. The Commons resolved likewise to take the management of Fitzharris's affair out of the hands of the court: so they carried to the Lords bar an impeachment against him, which was rejected by the Lords upon a pretence with which lord Nottingham furnished them. It was this: Edward the third had got some commoners to be condemned by the Lords; of which when the House of Commons complained, an order was made, that no such thing should be done for the future. Now that related only to proceedings at the king's suit: but it could not be meant, that an impeachment from the Commons did not lie against a commoner. Judges, Secretaries of State, and the Lord Keeper were often commoners: so if this was good law, here was a certain method offered to the court, to be troubled no more with impeachments, by employing only commoners. In short, the peers saw the design of this impeachment, and were resolved not to receive it: and so made use of this colour to reject it. Upon that the Commons past a vote, that justice was denied them by the Lords: and they also voted, that all those who concurred in any sort in trying Fitzharris in any other court were betrayers of the liberties of their country. "Fitzharris's trial came on in Easter Term: Scroggs was turned out, and Pemberton was made chief justice. His rise was so particular, that it is worth the being remembered: in his youth he mixed with such lewd company that he quickly spent all he had; and ran so deep in debt that he was cast into a jail, where he lay many years: but he followed his studies so close in the jail, that he became one of the ablest men of his profession. He was not wholly for the court: he had been a judge before, and was turned out by Scroggs's means: and now he was raised again, and was afterwards made chief justice of the other bench: but not being compliant enough, he was turned out a second time, when the court would be served by none but by men of a thorough paced obsequiousness. Fitzharris pleaded the impeachment in parliament: but since the Lords had thrown that out it was over-ruled.

"Fitzharris was tried next: and the proof was so full that he was cast. He moved in

in the Tower of London, which was granted; but the Grand-jury being under some scruples against receiving of the bill, desired the opinion court that I might be ordered to come to him, upon what reason I could never imagine: a rule was made that I might speak to him in the presence of the lieutenant of the Tower. I went to him, and pressed him vehemently to tell the truth, and not to deceive himself with false hopes. I charged him with the improbabilities of his discovery; and laid home to him the sin of perjury, chiefly in matters of blood, so fully, that the lieutenant of the Tower made a very just report of it to the king, as the king himself told me afterwards. When he saw there was no hope, he said the lord How. ard was the author of the libel. Howard was so ill thought of, that, it being known that there was a familiarity between Fitzharris and him, it was apprehended from the beginning that he was concerned in it. I had seen him in lord Howard's company, and had told him how indecent it was to have such a man about him he said he was in want, and was as honest as his religion would suffer him to be. I found out afterwards, that he was a spy of the lady Portsmouth's: and that he had carried lord Howard to her: and, as lord Howard himself told me, she brought the king to talk with him twice or thrice. The king, as he said, entered into a particular scheme with him of the new frame of his ministry in case of an agreement, which seemed to him to be very near. As soon as I saw the libel I was satisfied that lord Howard was not concerned in it: it was so ill drawn, and so little disguised in the treasonable part, that none but a man of the lowest form could be capable of making it. The report of lord Howard's being charged with this was over the whole town a day before any warrant was sent out against him; which made it appear, that the court had a mind to give him time to go out of the way. He came to me, and solemnly vowed he was not at all concerned in that matter: so I advised him not to stir from home. He was committed that night: I had no liking to the man's temper: yet he insinuated himself so into me, that without being rude to him it was not possible to avoid him. He was a man of a pleasant conversation: but he railed so indecently both at the king and the clergy, that I was very uneasy in his company: yet now, during his imprisonment, I did him all the service I could. But Algernoon Sidney took his concerns and his family so to heart, and managed every thing relating to him with that zeal, and that care, that none but a monster of ingratitude could have made him the return that he did afterwards. When the bill against lord Howard was brought to the Grand-Jury, Fitzharris's wife and maid were the two witnesses against him: but they did so evidently forswear themselves, that the Attorney-General withdrew it. Lord Howard lay in the Tower till the Michaelmas term; and came out by the Habeas Corpus. I went

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