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C!. of Crown. Another copy they had from bend by the rule, his special plea was to be adme that evening.
mitted if he tendered one, let it be what it will: Mrs. Fitzharris. I never saw my husband We must consider many things in a case of this in the Tower till yesterday in the afternoon, nature; and at last, whether it will be to the and I am an ignorant person, and know not jurisdiction, or what it is, we cannot tell as yet, what to do in it without a solicitor. As soon as And till we have seen the nature of the thing, I could get copies of the rule writ out I carried and what is necessary to prepare it for the them to these gentlemen.
court, I cannot venture to give it its proper Hír
. Pollerfen. My lord, I think it will be term. But our time is so short, if your lordvery bard upon us that are of counsel, to be so ship will afford us no longer, that we know not straitered in point of time; for my part, the how to be ready for it. Your lordship does rule was left under my door the last night, and speak of Mr. Attorney's being attended with I had it not till this morning: It will be a the substance of the plea, not tying us to the mighty hard matter for us to get the plea ready, form in the copy delivered to him. Mr. Atwithout a sight of the indictment. Things torney was here upon Saturday, when this must be averred to be the same ; which we matter was first started, and he knew the subcannot, unless we see what is there alledged. stance then: We know not what it is more than This man hath been kept close prisoner, and no by report. It is a plea that so rarely happens, body suffered to come at him to instruct him : that we must be cautious in what form we put and we have not so much as copies of any thing it. It is, as your lordship hath been pleased to that we must make use of. We have no con- say, an horrible treason that in the indictment cerament, my lord, in this matter, but what is is specified. We must not speak, nor do not assigned us by the court; and we do not know mitigate the heinousness of the crime ; nor do by any papers, if there be any, how we should we speak it because it is term-time, and may put it into form ; and that is it, my lord, which hinder our other business: We shall al} of us, may lie heavy upon us; if this man's business I am sure, not at all consider our own time, or should miscarry for want of putting it into due loss in the matter ; but it being of so great form, the blame will be upon us, who are as- weight, we desire reasonable time to do our dusigned his counsel. Therefore if your lordship ties: we name no time, nor dare do it; we subplease
, under these considerations, to give us mit that to the court. But, my lord, under fatime and leave to see the indictment we are to vour, for the copy of the indictment, we do conplead to, we may be the better enabled to do ceive it is necessary that we should see a copy our duty.
of it; and when the court is pleased to admit Sir F. Win. Really, my lord, I ought to deal the party to give in a special plea to the matter clearly with the couri ; without a copy of the he is accused of, and assign him counsel to plead indictment, I know not how we shall be able to it, I take it to be very rational and consonant to plead as we should do.
law, that we have a copy of the charge. Mr. Williams. My lord, I do really move,
L. C. J. Sir Fran. Winnington, for you to not in favour of Fitzharris, but for my own re- come and say these things here, methinks is putation : I cannot put my hand to a plea of very strange. I think you can shew, us no this consequence, without time to consider very precedent, that ever so long time was given to wel of it; and unless in truth, I can see the any man to plead to the jurisdiction of the court, indictment, and compare the plea with it, to put nor that ever a copy of the indictment was grantit into form fit for the judgment of the court. ed in High-treason ; and for you, because of the And if these things cannot be granted, I desire greatness of the treason, therefore to go about
to make us believe, that it is more reasonable L.C. J. Why, gentlemen, see what you that a copy of the indictment should be granted ast: Where do you find any precedent of a in this case than in another ; that the greatness man indicted for High-Treason, that would of the crime should be meritorious, and deserve plead to the jurisdiction of the court, that had a favour of the court, not granted in other cases, more time given him than is in this case ? is a thing extraordinary.
Sir F. Win. We do not know what his plea Sir F. Win. I do not press it that way; I will be, my lord, till we have seen it and consi- pray I may be understood aright. Upon what
appeared the other day, upon the nature of the L. C. J. Your client told us all, and we plea, I present it to your consideration, whether know all of us very well, that it is to the juris- or no, when you have been pleased to admit a diction of the court, and can be no otherwise. special plea, you will not let us see that which Just
. Jones. Any thing else you may give in we are to plead to? evidence upon not guilty ; and it would be con- L. C. J. No, it was never thought of surely.
Just. Dolben. No, it hath been constantly deSir F. Win. My lord, it may happen to be nied in cases of felony and treason; and so you not so properly pleadable to the jurisdiction of will find the practice to have always been. But the court; we know not what it will be till we I will tell you what hath been done sometimes'; have seen the things necessary to draw it into they have granted some heads out of the inform. It is true consequentially, it is the con- dictment, that should enable
the party to fit hiş cern of our client; but the ground of our mo- plea to the charge; and that was done in Wittion at this time is for ourselves. I did appre- typole's case, upon a plea of Auter
to be excused.
sidered on your trial.
- They gave him the times, and some other cir- | rate of it, and without having what is necessary cumstances, to fit his plea to his case ; but never in order to do it. was there a copy of the indictment granted. Mr. Wallop. My lord Coke, in his preface into the court.]
[Then Mr. Attorney being sent for, came to the third Report, declares, That it was the ancient law of England, and so declared by act L. C. J. Look you, Mr. Attorney, these of parliament in Edward 3d's time, that any gentlemen that were assigned of counsel for subject may, for his necessary use, have ac- Fitzharris, do move the court here, and say, cess to records and copies of them, be they for they would have longer time to draw up his the king or against the king ; and that the plea, for they must make use of several copies practice to the contrary is an abusion.
of papers, and they cannot so soon obtain L. C. J. So then, Mr. Wallop, you take it them, nor find out those records they must use, that we are bound when any man is indicted of or other things as ingredients to this plea, in so felony or treason, or any capital crime, if he short a time ; and they say likewise, that they say he must have a copy of the Record, we desire a copy of the Indictment. Now, in must grant bim a copy of the indictment: if truth, they ought to have given you notice of you think so, the court and you are not of the this, that you might have been here likewise to same opinion.
bear what they say: If you do consent to Mr. Wallop. I inform the court what I have give them longer time, we shall be ready to do read and seen, and where it is to be found. it : but without it, we shall not be willing to
Mr. Williams. My lord, it may be necessary, delay it. for aught we know, for him to plead over to Att. Gen. I think your lordship and thu the fact laid in the indictment, not guilty, as court gave them a very just and reasonable sometimes it is requisite for the party to do. time, when you allowed them four days; and Now if we should mistake for want of having these gentlemen are mistaken, if they think what is necessary, and thereby preclude him of they are assigned as counsel' to all events
. the advantages he might have had if the plea They are only to draw up a plea apon that had been rightly drawn, for aught I know, it matter that is alledged by the prisoner, and to will lie upon me for ever. My lord, I do it the jurisdiction of the court. merely out of caution, and for iny own reputa- Sir F. Winnington. No, my lord, I beg tion såke: Ifany legal advantage should be lost your lordship’s pardon: The rule is to plead by my unwariness, it will be a perpetual reflec- the special matter without more saying. tion upon me; and therefore I am so earnest in Ait. Gen. My lord, under favour, it is as I this case. And, my lord, I can tell you what say, and so is the course of law ; for the priwas done in a case wherein I was of counsel ; soner ought to acquaint you with the points be it was not a case of treason indeed, but it was desires his counsel to be heard to: And in this murder, the next crime to it; it was the case of case, Fitzharris did acquaint the court before he King and Thomas. Thomas was indicted of mur- would plead, that he had something to object der in one county, and found guilty of man- to the jurisdiction of the court ; and so his slaughter; and afterwards was indicted for the wife directed him when she gave him the paper. rme murder in another county, and being I suppose she had other advice upon it ; for , to plead this matter I did insist upon it, that we she could not draw it up in that form it was ought to have a copy of the indictment. There herself; and he did acquaint the court, he had was some debate about it; but at last we had a matter to plead to the jurisdiction of the court, copy, and we alledged there, as here, it was and concluded so in the paper that was read. impossible to plead without it and the cause And thereupon, according to his prayer, he had was removed hither into this court for judg. counsel assigned him these gentlemen. Icon. ment.
sented to it, as it was just I should; but that Just. Dolden. The first indictment you might they should think, that they are to advise bin have a copy of, for you were to plead the whole in other natters than that particular upon record.
which they are assigned, I know they know Mr. Williams. Nay, we had a copy of that their duty better than to offer at any such to which we pleaded.
thing. Now since then there is but one single C. J. Mr. Williams, you tell us, you may point, the jurisdiction of the court and nothing dventure have ocension to pleadorer when else, for they are not to advise in other matter, low it is High-treason that you are indict- I think it was more than strict justice, nay it
in framing and punishing a treasonable was a very great favour, for all men onght to be per cannot you direct your client to plead over mady to plead such pleas immediately. thout a copy? Certamly what you alledge LGİ Yes in strictness, we might have
that, for a copy of the indictment, is rapuired him to plead, as he would stand by it na pro cause
presente. Just. Jones, What prejudice will it be to your Att. Gox The law is that he must have all llent to plead ever 'My land, we only after these bearers in his plea is so ; therefore you needed
medy, a Puigde' to make it appear that what ourselves, and we hope ire shall set et bare given Sim any longer time : but be Langreoane time to consider and dohle king's caused deskt farly in this matter, aud
did not mean to take advantage of any thing L. C. J. Do you desire sir George Treby that looked like a surprize, I consented to that should be added ? time that your lordship was pleased to set : Mrs. Fitzh. Yes, I do. And as for the copy of the indictment, I know L. C. J. Let it be so then. not any reason they have to desire it ; for they Mrs. Fitzh. And sir William Jones; I will are not to advise in that, what defence he shalt | do what I can to get bim to come. make, but only upon this matter he hath al- L. C. J. We will not enjoin him ; but if be ledged.
pleases, we leave him to his liberty. L.C.J. Look you, gentlemen, what Mr. Just. Dolben. Why, mistress, you are got Attorney tells you is so, and we do expect that into the hands of gentlemen that are as learyed you should couform yourselves to it: We have and able in their profession as you can have ; given you three days time, which is sufficient you need no more. for such a thing as this. And Mr. Attorney, L. C. J. Do you desire Mr. Smith ? We told them thus when we did direct them, Mrs. Fitzh. Yes, my lord. That they should deliver you a copy of the
L. C. J. Then add him. plea to morrow morning. We are not so cri- Mr. Pollexfen. We desire that there
be tical with them, as that we will not receive leave for a solicitor, one that may carry papers their plea, if it be variant in form from that which in the presence of the Lieutenant. they deliver to you. That that we intended by it L. C. J. We have confidence in you, but is this, That they should deliver to you a plea, the not in other persons ; therefore we must consame in substance as that which they do plead sider of that : But what think you of it, brobere : If they would alter it in the form, we thers ? We may permit, I think, one to come can give them leave to do that without any preju- from the counsel to him with that caution. dice.
Judges. Yes, my lord. Att. Gen. We will never pinch them in L. Č. J. Let the papers be then inspected beform; I think I have matter enough.
fore by the Lieutenant of the Tower, and be L. C. J. I tell you truly, I do believe some from one of the counsel ; and so they have friends of his had counsel to draw up this plea liberty to do it. for him.
Ait. Gen. There is no need of any papers, Att. Gen. A great cabal, no doubt of it, my my lord
L. C. J. Mr. Attorney, do not oppose that: Mr. Wallop. My lord, I desire that counsel Let them have liberty to carry any papers that may be assigned in my place.
any of their counsel, these gentlemen we have L.C.J. We assigned him those that he re- assigned, shall send to him, or any from him to quired, excepting sir William Jones ; and we them; so as the Lieutenant may have first the did not deny to put in sir Wm. Jones's name, sight and perusal of them. because we would not assign him, but because Att. Gen. There is no great harm in that, he bath declined the bar, and does not practise though I see not that they will need any here.
papers. Mr. Williams. We do not draw in the name L. C. J. Yes, their plea to the jurisdiction of sir Wn. Jones, or decline him: We submit must arise upon fact, which may be out of some to your order about ourselves; but we desire papers. that person that did draw this plea may be add- Att. Gen. You are assigned, gentlemen, but
to one point, the jurisdiction of the court; reL. C. J. If his wife desire it, and will name
Mr. Pollexfen. Your lordship is pleased to Mr. Williams. I desire to be put out, and he say, That we may vary in form from what we put in.
deliver to the Attorney General ; and Mr. AtL.C. J. Sir, he understands what he would | torney is pleased to say, he will not pinch us baye, sure ! and we cannot discharge you upon as to form : How shall we be secure no advanany such account.
tage shall be taken of the form ? Mr. Wallop. Here are many particulars and L. C. J. It is only as to that particular. many averments, which cannot so suddenly be You shall not be tied up to the form you deset right as the time allotted.
liver to him. What advantages there may be Mrs. Fitsharris. My lord, there is not concerning the form of the plea you bring half those gentlemen assigned that I writ to my hither, we will see shall not be taken: husband to ask for : I directed him eight. Sir Fr. Win. Will your lordship please to
L. C. J. Who else would you have ? afford us no longer time? Mrs. Fitzh. There was in the paper sir Wil- L. C. J. When you are to plead to the juris. liam Jones, his majesty's late Attorney Gene- diction of the Court in a case of high-treasun, ral
, sir Francis Winnington, Mr. Williams, and such a treason as this is, what reason is late Speaker of the House of Commons, sir there that so much time as is granted already George Treby, Recorder of London
should be given you? Mr. Pollexfen. Your lordship may easily Sir Fr. Win. Shall not we have a copy of perceive by this gentlewoman's carriage, how the Indictment neither ? we are like to be instructed in this cause, when L. C. J. You will offer things that are not bobody follows it but she,
to be granted to you, ad captandum populum,'
him, it shall be so.
that you may say you are hardly used, and Dom. Reg. nunc tricesimo tertio, ipse iden mightily straitened in this case.
Edw. Fitzharris per Milites, Cives et BarŠir, F. Win. No, my lord, we do not offer it genses in eodem Par. assemblat, nonuine ipsor. for any such end.
et omnium Com. Angliæ, secundum legem et Ali. Gen. Gentlemen, remember you have cons. Parl. de alta Proditione coram Magnat. not liberty to plead any thing, but to the juris- et Procerib. hujus Regni Angl. in eodero Part. diction of the court.
assemblat. impetit. suit ; quæ quidem impetitio Sir Fr. Win. We must submit to what your in p!enis suis robore et effect. adhuc remanet lordship orders in it.
et existit, prout per Record. inde inter Recorda · Upon Wednesday the 4th of May, 1681,
Ed. Et præd. Edw. Fitzharris ulterius dic. quod
Parliamenti remanens plenius liquet et apparet. ward Fitzharris was brought from the Tower alta Proditio in Indictamento præd. per Jury to the King's-bench-bar.
præd. in forma præd. compert. specificat. et Cl. of Crown. Edward Fitzharris, hold up mentionat. et alta Proditio unde ipse prædiet. thy hand (which he did) : thou bast been in- Edw, Fitzharris in Parl. præd. modo ut predicted, and arraigned for bigh-treason; how fert. impetit. fuit et existit, sunt una et eadem sayest thou ? Art thou Guilty of the high- alta Proditio, et non alia neque diversa ; et treason whereof thou standest indicted, and hast quod ipse præd. Edw. Fitzharris in Indictabeen arraigned, or Not Guilty ?
mento præd. nominat. et præd. Edw. Fitzharris Fitzharris. I have made a plea, my lord, in impetitione præd. nominat. est una et eadem which I desire may be received and allowed. persona, et non alia neque diversa : et hoc parat.
Mr. Wallop. May it please your lordship, I est verificare, &c. Unde ipse præd. Edw. Fitzdesire to be heard a few words.
harris petit. Judicium si Cur. Dom. Reg. bic L. C. J. Would you not have the plea super Indictamentum præd. versus ipsuin u. read?
terius procedere rult, &c." Mr. Wallop. I have but a few words to say Mr. Williams. My lord, we humbly pray, before it be read, if your lordship please, for being assigned of counsel for this gentleman, ourselves, or at least for myself. According to Mr. Fitzwarris, that. this Plea may be rethe best instructions we have had, we have ceived. drawn up this plea, and I pray it may be en- L. C. J. Mr. Attorney, have you been attered so. But, my lord, i humbly conceive tended, according to the rule of Court, wish we have not had, or for my own part I have not this plea ? had those instructions that were fit to direct Ait. Gen. No, my lord. me in this case. It is a special plea, and of a L. C. J. What is the reason of that? inatter that rarely happens; and the nature of Att. Gen. Here is no more in effect, than this special plea is, that the matter contained in what was offered four days ago, when counsel the indictment and in the impeachment, is one was allowed him. I sent last night late to and the same matter. Now I have not yet them for a copy of the plea : indeed yesterday seen, nor could I come at a sight, though I at noon they sent me this note, that Fitzbarris desired it, of the impeachment, nor of the in- intends to stand upon his plea, that he stands dictment : but I bumbly conceive, that by the impeached in the House of Peers. I sent to law, as this case is upon a special plea, the pri- know of them whether they would plead tbis soner ought to have a copy of the indietment. to the jurisdiction, or in abatement, or in bar : And I do not say, that every one may demand a they declared, they would not plead to the copy of his indictment to find faults”; but upon jurisdiction, but now I see it is to the jurisa special plea, and particularly upon this, I diction. humbly conceive he ought to have a sight and L. C. J. It is so ; and that he proposed to a copy of his indictment.
plead at first. L. C. J. What, would you not have your Att. Gen. It is true, my lord ; but thus they plea received ?
sent me word. Mr. Wallop. Thus, my lord : if we can have L. C. J. And as a plea to the jurisdiction, so no farther instructions, nor can by any other it concludes. means come to a sight of these things, then it Mr. Williams. My lord, we have done all is the best plea we can make in such a case, that is possible for us to do in this case. The and I avow the plea: but if any thing should Court directed us to attend Mr. Attorney with fall out amiss to the prisoner for want of such the substance, and so we have done ; but the a sight,, I pray it may not lie upon me. form, we had liberty to do as we pleased in. L. C. J. Read the plea.
L. C. J. You need not go about to excuse
it, that you have not done it ; we charge you Cl. of Crown.“ Et prædictus Edwardus with nothing. Fitzharris in propria persona sua ven. et dic. Mr. Williams. I do not go about to excuse quod ipse ad indictament. prædict. respondere it; we do not take it as a charge upon us. .coinpelli non debet, quia dic. quod ante indicta- L. C. J. All we say is tbis : if Mr. Attorney ment. præd. per Jur. præd. in forma præd. had had it, peradventure he might have conconpert. scil. ad Parl. Dom. Reg. nunc. in- sidered of a replication by this time, or what cohat. €t tent. apud Oxon. in Com. Oxon. he would do concerning it'; but if he hath not ticesimo primo die Martüi Anno Regni dict. had time, we cannot expect it from him.
Sir Ft. Win. My lord, I only beg one word Alt. Gen. My lord, I think delay is very as to matter of fact, and it is material as to dangerous and mischievous in this case. ourselves to urge it. We did send several mes- L. C. J. We can give you as short a day as sengers to get, if it were possible to be ob- you please. tained, a copy of the Impeachment in parlia- Ait. Gen. But to satisfy the Court, the ment. We sent to the House of Lords clerk clerk will be ready with the Journals, to shew to get it ; but they that went down, tell us the that the fact is not as they plead it. clerk is not in town, or else we had sent Mr. L. C. J. Look you, Mr. Attorney, we must Attorney the whole plea at that time.
go on in a legal and formal way, when we have L.C. J. I only ask the question, to see whe- a plea put in; therefore whether you will not ther Mr. Attorney hath had time to think of it. take time for a day or two to consider of this
At. Gen. My lord, I think I need not any plea : you had the substance of it, but nothing time in this case.
concerning the manner of the pleading ; they L.C. J. Pray go on, Sir.
would not tell you whether they would plead it Att. Gen. My lord, I do pray your judg- in abatement, or in bar, or how: therefore ment upon it; for it is a plea that is insufficient: whether you will not take time to consider of Day
, it is ng plea to bar you of your jurisdic- this pleading for a day or two, pray consider tion. First, I observe that whosoever will with yourself. plead a plea to the jurisdiction, if he have any record to plead, must have it .in poigne,' must
Then the King's Counsel consulted one with
another. produce it in a Court, or at least inust produce a copy sworn, that the Court may see there is Alt. Gen. My lord, not only for what I have nothing dilatory in the case. And for this already offered, but for many other reasons, we matter, it will appear upon examination to be can see this can be no way a plea to the jurisa plain frivolous plea ; for there is no such diction of this Court; for upon any impeachmatter depending as this plea alledges. But I ment or indictment, the king bath election to speak of it as a plea to the jurisdiction of the proceed upon which he will : and if there were Court; and sueh an one as will plead such a ten indictments for one and the same thing, if plea, he must have the record ready, to shew it none of them are come to a judgment the king w the Court, and by the course of law ought to may proceed upon which he pleases, as in that bare it ready to assert to the Court, that they case of Ereland yesterday ; though the party have not jurisdiction : so then it is certainly were arraigred and ready to be tried in Ireland, naught
. That is the first thing. Another yet the king might, it be pleased, try him thing is this; with submission, I say, they here ; and the king hatla ordered it so to be. bave pleadei no record at all, nor any
impeach- But, my lord, I take it, that this is not only ment at all, as this case is; for the notes that apparently a false plea, but a frivolous plea in ? base taken, my lord, are, they say he was itself, being to the jurisdiction of this Court : impeached by the Commons de alta Prodi- for there was never any thing of a crime so tipne ; but that is naught. He ought in his great, but this Court of King's-bench, which plea to bave set forth his impeachment, and hath a sovereign jurisdiction, for commoners
or what crime particularly , for either an especially, could take cognizance of it ; and I indictment or an impeachment de ulta Prodi- put it upon that, my lord. Never was such a fione, or felony, or any other crime, is naught
, plea pleaded to your jurisdiction ; and therethe law allows it not. He ought to set forth, fore we pray your judgment upon it. and must not aver upon a record, but set it forth Sol. Gen. My lord, before we come to that in hæc verbu, or in the substance of it; and so which is the question, if there were such a ought to plead the record entirely as it'is. And plea pleaded to the jurisdiction as they would for those necessary averments that cannot have this to be, we humbly pray the judgment otherwise be made, the law allows of them. of the Court, whether this be any such plea at But in this case he cannot come and aver upon all as can bear any debate: for it will not be a this record; for he hath set forth the impeach- questiou now, how far an impeachment deenfant not as it was, but only barely de alia Pro- pending is a bar to your jurisdiction ? But the ditine in general, which the record must question is
, whether this be such a plea? shew
, so as the Court may judge of it, and it lor, my lord, i' do take it, no man can pleadmust not be intended. But as they have set it any record in another Court, any indictment or forts, in this case there is nothing of treason acquittal upon it, by pleading
it in this form as specified in the record averred, that can intend this is pleaded, by saying generally, that such the precedents. Whosoever pleads a private the same offence, and was acquitted ; yet thus act of parliament, must plead it as it is, not in this plea is, and no more. But he that will
fueral that it is for the same matter for I plead outer fois acquit, must plead that such judgment, that this is no plea to the jurisdic- set forth the indietment and all the proceed
L.C. J. Me. Attorney, do you think it pru- it is proper for judgment; such a plea ir dent to argue it this time, or will you take a formal, and requires an answer, and it will day? Pray consider of tbat a little.
be proper for us to give it an answer : and
tion upon that point.