when such a plea is put in, we shall either demur to it, or give it the answer that it requires of null tiel record. But this does not require any particular answer, because it sets forth no record at all that we can answer to : for it is not sufficient to say in general, that he was indicted and acquitted, or impeached, and then aver that it was for the same offence; but be ought to shew forth the impeachment, and set forth in the plea the record. that upon it you may pass a certain judgment. Therefore we hope you will set this aside, as not being at all formal, or requiring any answer to it. Serj. Maynard. My lord, if you please to consider in this case what is the question, and what not. At present it is not the question, whether if a man be impeached of high-treason by the Commons before the Lords, and this impeachment stands unreversed in the Court of parliament; I say, it is not the question, whether this Court have jurisdiction over this man for that offence? but the question is, Whether he hath put in such a plea before you, as will put that in question? Under favour, it is not sufficient for him that will plead a particular record, in bar or other way, and make use of it, that he pleaded it in general terms, but he must set forth that record as it is; he must not give you the title only, or say, he was indicted for such a thing generally; but he must so set it forth to the Court, that if issue be taken, the Court may, by comparing the record with the plea, judge whether it be the same matter or no. Now when he pleads he was impeached for the same treason, he must set forth what that was, that it may appear it was for the same treason, and if that be particularly set forth as it ought, upon null tiel Record, the question will be, is there such a record or not? Now if he comes and says he was indicted or impeached, and not for what in particular; the two things that upon the issue are to be compared, are not made so fit for your judgment. In our law, my lord, if a man will plead, he need not set forth a general act of parliament; but if he will plead a particular act, he must set forth the matter of it, to bring his case under the judgment of the Court; and whether this be so pleaded or no, we submit it to you. L. C. J. Pray let me speak two or three words to you: do you speak it against our receiving of the plea? Att. Gen. Yes, my lord, we hope you will not admit such a plea. whether you shall think convenient to take issue upon it, or to reply to it, that it may come judicially for our opinion; for in a regular way, if a plea be admitted, it must be either demurred to, or replied to. Pray consider of it in this case; and we will give you time to consider, if you please. Serj. Maynard. Under favour, my lord, if a plea be apparently vicious when it is upon record, we need not demur to it, nor take issue; for else the mischief will be, we shall admit all that is well pleaded to be true. Serj. Jefferies. My lord, if your lordship please, I do confess that according to the usual course and practice, if there be a doubt upon a plea that is read, whereon any point in law may arise, you do put the party to demur or take is sue: but according to the common course of this court in common cases, and much more in extraordinary cases, and especially in capital cases, and most of all in a case of High-Treason, such as this, if it do appear to the court and your lordship, that the plea is in it's nature a frivolous plea, you do usually refuse to admit such a plea, and give judgment upon it. Now we would acquaint your lordship with our apprehensions in this case, and we would pray you to consider what the danger may be upon us to demur, if this plea be frivolous, as it appears to be: for whether an indictment in this court, or an Indictment in another court be for one and the same offence, and so a bar to the jurisdiction, we are not so much as admitted into the question of that, as this plea is. Whereas according to the course in other pleas, we pray you would be pleased to see the inconvenience if we should be put to demur to it; for then we do admit by this demurrer, that this Impeachment is for one and the same thing; and we humbly conceive, my lord, that is a little dangerous. How then will it be possible for you ever to judge, that the Impeachment (which in fact is otherwise) and the Indictment is for the same thing, unless you will put them to pursue the common methods, how it was in the House of Lords, by shewing forth the record? And what can we do otherwise (it being apparently against the common form of pleas, and manifestly for delay only) than pray the judgment of the court, which we hope will be to reject this plea? L. C. J. Brother Jefferies, you need not be afraid, that you shall be concluded by this demurrer, that there is such an Impeachment in the Lords House, for the same offence: there will be no colour for it. And brother MayL. C. J. That will be hard. Pray then con- nard, formerly I confess, when they pleaded sider with yourself, whether if it be an insuf-pleas Ore tenus, and took their exceptions Ore ficient plea (for we will say nothing at present to that) and if the plea be such that no issue can be taken upon it (admitting it were so), whether you should not demur to it, before you demand our judgment, that we may have somewhat upon the whole before us to judge upon? And I speak it to you, Mr. Attorney, to this purpose, that you may consider, whether you shall think fit to demur to this plea, or tenus too, they would demand jugment of a plea presently; and so it was in the bishop of Winchester's Case, 3 Edw. 3. where there was an Indictment against the bishop here in this court, for going away from the parliament at Shrewsbury without the leave of the Lords: there Shard comes in, and pleads Ore tenus this matter, and says, This is a thing that concerns the Lords in Parliament, of which they have cognizance only, and so prays the judgment of the court presently, whether they have jurisdiction of the cause or no? And he pleads it in abatement. There they over-ruled him presently without any more to do, because their pleadings were not as now they are; now they are grown into a formal way, all entered upon record, or at least written in paper: and what should be the reason why you should not do according to the common course of the court, I leave it to you to consider of it. Serj. Maynard. It is very true, my lord; anciently the course was so, my lord, and the law was so too, to plead Ore tenus; but pleading in paper is the same thing; and the course of the court hath been, when they saw it in paper to be a frivolous plea, to give judgment presently: and you have the same privilege upon this account, as they had when pleas were by word of mouth. If there be a demurrer, it may hang longer than is convenient this cause should do, L.C. J. Do not speak of that, brother Maynard; as to delay, you shall take as short a day as you will. a naughty plea in the substance of it, and the end of it to put this court out of a jurisdiction, we hope for that reason you will not receive it. Mr. Sanders. One word farther, if your lordship please, on the same side, for the king. As for this plea that he hath pleaded here, if it had had substantial matter in law whereupon to ground a debate, we should not press your lordship not to receive it, but we must get off it as well as we could; but when it is manifestly pleaded merely for delay, and it so appears to your lordship upon the reading of it, and that there is nothing of substance in it, then we hope you will not receive it, nor put Mr. Attorney to demur to it, or take issue upon it. Now for the plea the case is thus: Here is an indictment for treason against Mr. Fitzharris, for conspiring the death of the king, compassing of it, and declaring such his intention by a venomous libel. Now he comes and pleads to out this court of their jurisdiction; and what does he plead? He says he was formerly impeached of High Treason in the Parliament, that is all he says concerning Att. Gen. I have looked upon all the pre- the impeachment; then he does come and cedents, and could never meet with one demur-make an averment, without showing more, that rer where the plea was to the jurisdiction: but I pray your judgment upon the first matter, whether whosoever pleads to the jurisdiction ought not have the record in poigne' to justify his plea? In a plea in bar indeed it may come in by Mittimus, but in a plea in abatement, the party ought always to be ready with those matters that are to out the court of their jurisdiction; and besides, the court is to maintain their own jurisdiction, the king's counsel have nothing to do to assert that, but they ought to avoid all things that may be to the king's prejudice, and therefore it ought to be by the judgment of the court in this case set aside. But I do think you will never find a demurrer that was to a plea to the jurisdiction. LC. J. Pray consider of that. Att. Gen. But if it appear to be a frivolous plea in the form or in the matter, you will not put us sure to demur. L. C. J. If you do insist upon it, that you won't demur, nor do nothing, we will give judgment; but we will take time to consider it, if you won't demur, nor take issue, or reply. Sir Fr. Withins. Will your lordship please to spare me one word? As it hath been observed to your lordship, this is a plea to the jurisdiction of the court; and if they do plead a plea of that nature, the court always expects the plea should be substantially good, otherwise it is not to be received. Now it is not substantially good here, for it says, that Fitzharris was impeached of High-Treason: Now such an Impeachment is naught, for nobody can be impeached for High-Treason generally. It ought to come and set forth the particular acts that make up the treason; for the calling of a thing so, does not make it so: therefore they that would plead this plea, must come and shew that there is an Impeachment that hath such matter in it as does amount to treason; so that then it being this high treason, and that for which he was impeached, is the same; and takes upon himself to judge, whether the court will or not, and will not submit it to the court, which certainly is not the right way of pleading. If Mr. Fitzharris should come and plead auter foitz acquit, that he had been tried at another time for the same offence and acquitted, he should not have said generally he had been formerly indicted and acquitted, and this for the same thing; but he must have shewed the record, and then averred upon the record that it was for one and the same crime. For suppose in this case, which would have appeared perhaps to be so, if he had done as he should have done, shewn that there was such an impeachment, whereby he was impeached of high treason, and which impeachment did charge him with treason for levying of war against the king, and then have made a conclusion as he does now, with an averment, that the impeachment and the indictment was for one and the same offence: under favour, notwithstanding his averment, the court would have judged them not to be the same; for if so be the reason do not appear upon the record to be the same, his averment will signify nothing; why then his pleading now this insufficiently for want of the record, will be better for him than if he had pleaded it sufficiently. Why then if he had now pleaded, that there is a record of the former impeachment, and set forth the record, and then averred this was for the same, Mr. Attorney might take issue either there was no such record, or said it was another treason, and traversed it that it was not for the same; and so there would either have been one trial by the record, or the other upon the fact by the country. But now as he bath made it, this trial both upon the record, and upon the fact, is only triable by the country, not by the record. For if Mr. Attorney take issue that there is no such record, then all the record is, that he was impeached for high treason, and then a record of impeachment for any high treason would serve the turn; which if it be not for the same, it ought not: so then the issue of null tiel Record could not be taken. Why then now, my Lord, as to the fact: If Mr. Attorney take issue, that it was not the same treason, then the record must be tried; that is, whether there was such a record that does contain an impeachment for the same treason for which he stands indicted; this, I say, must be tried by the country. And if he have pleaded it so, that matter of record upon issue must be tried by the country, for that reason his plea is naught; and if that be so, then the court may be satisfied, and it is apparently pleaded only for delay, because he would not come to the principal matter, and plead Guilty or Not Guilty, which is the matter of fact most proper for the country. I rather hope he is not guilty than that he is: but if he be guilty, it is the most horrid venomous treason as ever was spread abroad in any age. And for that reason your lordship will not give countenance to any delay. And therefore we pray the Plea may be rejected, and he may answer over. Att. Gen. He hath not pleaded' prout patet 'per Record.' L. C. J. Yes, it is prout patet in Rotulis Farliamenti.' He does say that he was impeached of high treason by the Commons before the Lords, as appears by the records thereof among the records of parliament. Att. Gen. I did not truly remember that; but I beg your pardon if it be so, for I had not a view of the plea till now; but I am ready thus far to satisfy the court, it is a pure false and frivolous plea. And then with submission 1 offer it to your consideration, whether you will give any time, or presently reject it. L. C. J. We will give them no time, that is sure. But the question is, Whether time should not be taken, not in favour of the prisoner, but of the king and of the court? Att. Gen. I am ready to make out, if it were necessary, that there is nothing of all this true; it is all fiction that is pleaded, and nothing in the record to warrant it: I have a copy of the whole journal, and of the transactions in the House of Lords, the book is close by and ready to be shewn; but when it is a frivolous plea, I hope there will be no need of that trouble. it is reasonable you should consider of it, and when you are agreed, then you may ask our judgment. L. C. J. We cannot put you to it to give a final answer to bind the king: therefore let it stand as it is; we will cons ler of it. Att. Gen. Then, my lord, I will demur immediately. Sol. Gen. And we pray they may join in demurrer immediately. Serjeant Jefferies. If they do not mean it for delay, now Mr. Attorney hath demurred, I suppose they will join demurrer immediately. [Then the Clerk of the crown drew up a and it was read in the court by the clerk general Demurrer, which Mr. Attorney signed, of the crown.] Alt. Gen. We pray they may join in demurrer. Mr. Williams. My lord, we that are assigned of counsel for this gentleman, the prisoner at the bar, (that your lordship may be satisfied, and all that hear us, that we do not design or desire to delay one minute in this cause) do declare, that we will join in demurrer with them immediately. murrer, which being signed by the four gen[Then the clerk drew up the Joinder in De. tlemen of counsel with Mr. Fitzharris, was also read in court.] Alt. Gen. My lord, I pray your judgment; here is an indictment for framing a treasonable libel Mr. Williams. My lord, we hope we shall not be put Att. Gen. Pray, Sir, hear what I pray. My lord, I desire your judgment, that the plea may stand over-ruled for a plain fatal error in it. This is a particular indictment for the framing a most pernicious scandalous libel against the king and the government, for treason in that particular; and I think there is no person does doubt, but that this is a matter within the jurisdiction of this court to try:: There is no difficulty in that. What do they do to out this jurisdiction? They come and plead, that Fitzharris was impeached de alto Proditione; that is all they plead of hightreason in general, to out the court of a jurisdiction of a particular treason, for framing a malicious traitorous libel; and this is a particular treason upon the statute of the 13th of this king. Now they have pleaded no particular treason upon that statute they were impeached for, nor upon the statute of the 25th of Edw. 3. which hath a general clause of a declaratory power, and it may be he was impeached upon that, and we shall not intend it otherwise, that Justice Jones. There have been very many being the general law, the other but a particu good arguments urged by you, upon which lar law for this king's life. Now in all pleas to perhaps the plea will be judged insufficient; but the jurisdiction, they ought to be the strictest the question is, Whether you are now in any and most certain of any pleas whatsoever. And such form as we can pass judgment upon this as I offered before to you, so I do now again, plea or no? Therefore it being offered to you they ought to be ready with the record to justo consider of it, what you will do in it; suretify their plea: but this in short I insist upon, L. C. J. But, Mr. Attorney, whether we can take notice of the Journal-book now, you had best consider, as this case stands. Att. Gen. They ought to have it here ready, they ought to have it here in poigne. that to out a court of its jurisdiction for a parti- | time in this case, only here is a man's life in cular treason, it is not a good plea, by saying question; it is indeed for treason, and so it is he was impeached or indicted generally of of consequence to the king; and there is high-treason, and no averment can possibly also the privilege of parliament consequently help it. For it appears by the impeachment it concerned in it. What time your lordship and is not for the same, and it is rather to be in- the court shall think reasonable for us to be tended that it was not; but the impeachment ready in, we leave it to your lordship; we de- . being general, that they went upon a declara- sign not to delay at all, only we desire a rea tory power, in the statute of the 25th of Edw. sonable time. Your lordship did in the case S. which reserves to them the power of declar- of Plunket give him time for his trial till ing treason at large, and not upon that which next term, which is as high a treason as this, may be tried here in an inferior court upon a I am sure. particular statute: I say, my lord, they ought to have pleaded it certainly, which they having not done, it is fatal; and I pray your judgment upon it and I hope they are ready to make good their plea. L. C. J. You would have people think you have strange measure in this case, that you have not the same time given to you that was given to Plunket: Pray consider, you object these things as though the court were hard Sel. Gen. My lord, that which we do say to upon you, to tie you up in point of time. Is it, is, That this plea is neither good in matter your case like Plunket's? Pray give us leave nor form; and if it had been pleaded never so to clear our accounts as we go along: He is formally, perhaps we would have demurred to brought from Ireland hither, is indicted for it: but as now it is pleaded, it is not formal, what he did in another kingdom, and it is by and therefore we pray it may be over-ruled. law he is so indicted indeed; for he being kept The exception, we take it in point of form, we close prisoner, and not knowing what time he think is fatal; for there is no man that pleads should be brought to a trial, he desires time to an indictment or an impeachment in another send for his witnesses, who are to be brought court, but must set forth the indictment in over to clear him of the treason. Could we in the plea, which is not done in this case, and we justice deny it him, or could there be shorter take that to be fatal to it. For a man that will time than next term, given him, when his witplead auter foitz acquit, must set forth the in-nesses are in another kingdom, and it would be dictment, and all the proceedings of the court upon that indictment; this is the constant pleading in all cases, and particularly in Vaux's case, the fourth report. Whoever will plead uter foita acquit, must set forth the record, before it will require an answer to be given to it. L.C.J. What do you say to it, gentlemen, for the maintaining of your plea. Mr. Williams. This is that we say, my Jord: We hope your lordship, and the court, in this case, will not tie us up presently to come and argue this matter. One thing I would mention, because it hath been said there never was such a precedent; I think, to this purpose, the precedent of Elliot's case is very full in it. Mr. Attorney is pleased to say, he never found that any plea to the jurisdiction did ever require a demurrer, but was over-ruled or allowed by the court presently; but that case is plain to the contrary upon that very matter. It was an indictment brought against Elliot, for some misdemeanors committed by him in the House of Commons; this being pleaded to the jurisdiction of the court, the Attorney-General at that time said it was not to be received; that was the matter he insisted on then, that it should be rejected: but the court did then, as you do now, over-rule the attorney in it, and put him to demur. L. C. J. We have done the same for you. Mr. Williams. Then, my lord, here is a precedent that Mr. Attorney hath not seen: Now for time, the court in that case did not tie counsel up to argue the plea presently, but gave them time till the next term. We ask not so hard a thing of the court, as so long a VOL, VIII. a fortnight or three weeks before possibly he could have his witnesses here? This I mention, because you will needs make use of such a case, that is no more like yours than any thing that is the farthest different from it; yet you will have the case to measure with your case. Mr. Williams. My lord, I know it is in the discretion of the court; and as your lordship did what was just for Plunket, so you will to this person: I know you will do what is right to every body. We are counsel assigned by your lordship, and we doubt not but your lordship will be just to us, and give us a reasonable time to argue it. L. C. J. Look you by the way, Mr. Williams, I must tell you, when we assigned counsel to Mr. Fitzharris, we expected that counsel should consider the plea, so as to be able to maintain it, when they come to plead it here; for that reason we gave him time to plead it, so as he would stand by it: What needed we else to have assigned him so much counsel in such a case as this is, but that he should be ready? And why you should now hope that we will give you a longer time for argument in such a case, I see not. Consider, whether in discretion you think longer time ought to be expected upon such a plea as this is? Sir F. Win. My lord, we will not take upon us to prescribe, nor to mention any time in particular, we leave that to the discretion and judgment of the court; but this, I think, we may pray, according to the duty we owe to our client, upon your lordship's assigning us of counsel. We could not foresee till to-day, what the king's counsel would do; whether T Mr. Attorney would take issue upon us of null tiel Record, or upon any of our averments. We could not foresee whether he would demur to us, or not. I know your lordship will be as favourable to us as you can; not having those papers, or sight of those records that were necessary, and would have expedited this matter, our time was all spent in forming of the plea, and we could not prepare particular matter in law to defend it. We are as ready as can be expected, and we have been as industrious to prevent any delay, as any persons could be in our condition; therefore, it may be, we have had a general consideration of the plea: but now we see where the doubts do lie upon it; it is a matter of law pleaded to the jurisdiction of the court. I do not indeed love to cite precedents upon what is plain; but withal, I do not love to say things upon a sudden are plain without consideration: but this I will say, as it is now upon this demurrer joined, it is a case well worth our taking care of, and yours too; must say it with your lordship's leave. Therefore, if in the case of my lord Hollis, which was but upon an information, and that but for a misdemeanor, and though it was a plea directly to the jurisdiction of the court, and certainly they came prepared; for they were all at liberty, and had resort to all papers and books before the plea pleaded, which we could not have; yet the court was pleased to assign them time, and give them a large time, I hope we shall have some reasonable time. I do not speak it, that we should have so long time; but I humbly beseech your lordship, that we may do our duty to the court, and to our client, that we may have a little time. It is true, it is a great and a horrid treason; but it is as true, here is the life of a man concerned in it: we affect not delay at all, but hope you will not deny us what time is reasonable. L. C. J. Look you, I will tell you; you might, if you had pleased, have entitled yourselves better to have had time to speak to the plea, if you had pleaded over to the treason; then we could have given you time to have spoken to it, and not delayed the king at all: but you have thought fit not to plead over. must confess, I did expect you would have pleaded over, as you might have done, and I thought you would; therefore having not done it, it is in our consideration, whether we will give you time, and what time we will give you. otherwise; modern, and what we may call ancient practice too, hath made an alteration from that method: and we humbly pray we may not proceed, but according to the rate of modern practice. My lord, whereas they are pleased to call it a frivolous plea, I believe it is a plea of the greatest import that ever these gentlemen came here about, whatsoever they are pleased to say. But your lordship knows the life of a man is the greatest favourite in law; and that to be a most ancient and wise rule, De morte hominis nulla est cunctatio 'longa.' And since we could not reasonably expect to be thought to come provided in this case, we humbly pray, that your lordship will allot us such a reasonable time as your lordship shall think fit. L. C. J. Come, let me propose this to you, Will you plead over? Mr. Pollexfen. My lord, I will give you an answer to that, We cannot do it. When we were together, we did consider, whether if we should plead over, it would not destroy the plea, and we were of opinion that it would destroy the plea: we cannot plead over, but we give up the jurisdiction. It is as indifferent and light to me, as any body, to be forced to argue it now; but as to the matter of it, I believe nobody can say they ever saw many instances of the like nature: Therefore, pray, my lord, let us not go on so hastily with it, for we could not foresee, what since we know, how it would be with us. I did not think they would have demurred; but now it is come to that, we must make the best of it. We have pleaded this plea; if you will not be pleased to give us leave and time to be prepared to argue it, you must take it as we are able, since we cannot have time to make ourselves able. L. C. J. rem vita, it over. Certainly, Mr. Pollexfen, in favo would not hurt the plea to plead Att. Gen. My lord, if your lordship pleases to favour me a word in this case; I hear seve ral things urged, particularly instancing in modern practice. If that gentleman will shew that in any case the king and the court were so Iiudulgent to give four days to plead to the jurisdiction of the court, then he will shew me something of modern practice, which I know not; but if that gentleman will remember modern practice in a great nobleman's case, for whom he was of counsel, it was told him, if he would debate the point of law, he must do it presently they never would give him time to prepare for his argument, there was no such modern practice then. I would desire him to give me one instance, that when gentlemen are assigned of counsel to plead a matter to the jurisdiction, and deal so with the king's counsel as they have dealt with us, not to let us see the plea till now; the modern practice hath been to give them any time. For them to say, that they could not foresee what we would be at; could they not foresee the points of law? Could they not foresee a plain case? but they do not take off the great matter, that he that Mr. Wallop. It is under your lordship's favour, according to the usual course of modern practice. I have been an unprofitable attendant here near forty years, and, for my part, I did never yet see so swift a proceeding as this is now; it is as swift as lightning. It is a very extraordinary thing; we might well conceive, that nothing more should be expected from us than what is usual, and that we should not be put ont of the ordinary proceedings. Anciently indeed, as your lordship did observe the other day, they pleaded ore tenus, and then the proceedings were very quick; now indeed it is |