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when such a plea is put in, we shall either | whether you shall think convenient to take issue demur to it, or give it the answer that it re- upon it, or to reply to it, that it may come juquires of null tiel record. But this does not re- dicially for our opinion; for in a regular way, quire any particular answer, because it sets if a plea be admitted, it must be either demur. forth no record at all that we can answer to : red to, or replied to. Pray consider of it in this for it is not sufficient to say in general, that he case; and we will give you time to consider, if was indicted and acquitted, or impeached, and you please. then aver that it was for the same offence; but Serj. Maynard. Under favour, my lord, if a be ought to shew forth the impeachment, plea be apparently vicious when it is upon and set forth in the plea the record. that upop record, we need not demur to it, nor take issue ; it you may pass a certain judgment. There- for else the mischiet will be, we shall admit all fore we hope you will set this aside, as not that is well pleaded to be true. being at all formal, or requiring any answer Serj. Jefferies. My lord, if your lordship to it.

please, I do confess that according to the usual Serj. Maynard. My lord, if you please to course and practice, if there be a doubt upon a consider in this case what is the question, and plea that is read, whereon any point in law may what not. At present it is not the question, arise, you do put the party to demur or take is. whether if a man be impeached of high-treason sue: but according to the common course of this by the Commons before the Lords, and this court in common cases, and much more in eximpeachment stands unreversed in the Court of traordinary cases, and especially in capital cases, parliament ; I say, it is not the question, whe- and most of all in a case of High-Treason, ther this Court have jurisdiction over this man such as this, if it do appear to the court and for that offence ? but the question is, Whether your lordship, that the plea is in it's nature he hath put in such a plea before you, as will a frivolous plea, you do usually refuse to admit put that in question ? Under favour, it is not such a plea, and give judgment upon it. Now sufficient for him that will plead a particular we would acquaint your lordship with our aprecord, in bar or other way, and make use of prehensions in this case, and we would pray you it, that he pleaded it in general terms, but be to consider what the danger may be upon us to must set forth that record as it is; he must demur, if this plea be frivolous, as it appears to not give you the title only, or say, he was in- be: for whether an indictment in this court, or dicted for such a thing generally ; but he an Indictment in another court be for one must so set it forth to the Court, that if issue and the same offence, and so a bar to the jurisbe taken, the Court may, comparing the diction, we are not so much as admitted into record with the plea, judge whether it be the the question of that, as this plea is.

Whereas same matter ar no. Now when he pleads he according to the course in other pleas, we pray was impeached for the same treason, he must you would be pleased to see the inconvenience set forth what that was, that it may appear it if we should be put to demur to it; for then we was for the same treason, and if that be particu: do admit by this demurrer, that this Impeachlarly set forth as it ought, upon null tiel Record, ment is for one and the same thing ; and we the question will be, is there such a record or not? humbly conceive, my lord, that is a little danNow if he comes and says he was indicted or gerous. How then will it be possible for you impeached, and not for what in particular ; the ever to judge, that the Impeachment (which in two things that upon the issue are to be com- fact is otherwise) and the Indictment is for the pared, are not made so fit for your judgment. same thing, unless you will put them to pursue In our law, my lord, if a man will plead, he the common methods, how was in the House need not set forth a general act of parliament ; of Lords, by shewing forth the record ? And but if he will plead a particular act, he must what can we do otherwise (it being apparently set forth the matter of it, to bring his case against the common form of pleas, and maniunder the judgment of the Court; and whe- festly for delay only) than pray the judgment ther this be so pleaded or no, we submit it to of the court, which we hope will be to reject this you.

plea ? L. C. J. Pray let me speak two or three L. C. J. Brother Jefferies, you need not be words to you: do you speak it against our receiv- afraid, that you shall be concluded by this deing of the plea?

murrer, that there is such an Impeachment in Att. Gen. Yes, my lord, we hope you will the Lords House, for the same offence: there not admit such a plea.

will be no colour for it. And brother May: L. 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 tenus too, they would demand jugment of a to that) and if the plea be such that no issue plea presently ;- and so it was in the bishop of can be taken upon it (admitting it were so), Winchester's Case, s Edw. 3. where there whether you should not demur to it, before you was an Indictment against the bishop here in demand our judgment, that we may have this court, for going away from the parliament somewhat upon the whole before us to judge at Shrewsbury without tbe leave of the Lords: upon ? And I speak it to you, Mr. Attorney, to there Shard comes in, and pleads Ore tenus this this purpose, that you may consider, whether matter, and says, This is a thing that concerns you shall think fit to demur to this plea, or the Lords in Parliament, of which they bave coguizance only, and so prays the judgment of a naughty plea in the substance of it, and the the court presently, whether they have juris- end of it to put this court out of a jurisdiction, diction of the cause or no ? And he pleads it in we hope for that reason you will not receive it. abaternent. There they over-ruled him pre- Mr. Sanders. One word farther, if your sently without any more to do, because their lordship please, on the same side, for the king. pleadings were noë as now they are ; now they As for this plea that he hath pleaded here, if are grown into a formal way, all entered upon it had had substantial matter in law whereupon record, or at least written in paper :, and what to ground a debate, we should not press your should be the reason why you should not do ac lordship not to receive it, but we must get off cording to the common course of the court, I it as well as we could ; but when it is manileave it to you to consider of it.

kestly pleaded merely for delay, and it so apSerj. Maynard. It is very true, my lord; pears to your lordship upon the reading of it, anciently the course was so, my lord, and the and that there is nothing of substance in it, law was so too, to plead Ore tenus ; but plead. then we hope you will not receive it, nor put ing in paper is the same thing; and the course of Mr. Attorney to demur to it, or take issue upon the court hath been, when they saw it in paper it

. • Now for the plea the case is thus: Here to be a frivolous plea, to give judgment présently: is an indictment for treason against Mr. Fitzand you have the same privilege upon this ac- harris, for conspiring the death of the king, conot, as they had when pleas were by word of compassing of it, and declaring such his inmouth. If there be a demurrer, it may hang tention by a venomous libel. Now he comes longer than is convenient this cause should do. and pleads to out this court of their jurisdic

1. C. J. Do not speak of that, brother May- tion; and what does he plead? He says he nard; as to delay, you shall take as short a day was formerly impeached of High Treason in as you will.

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 this high treason, and that for which he was - pray your judgment upon the first matter, impeached, is the same; and takes upon him. whether whosoever pleads to the jurisdiction sell' to judge, whether the court will or not, ought not have the record in poigne' to justify and will not submit it to the court, which cerhis plea? In a plea in bar indeed it may come tainly is not the right way of pleading. If Mr. in by Mittiinus, but in a plea in abatement, the Fitzharris should come and plead auter foito party onght always to be ready with those acqui', that he had been tried at another time matters that are to out the court of their juris- for the same offence and acquitted, he should diction; and besides, the court is to maintain not have said generally he had been formerly their own jurisdiction, the king's counsel have indicted and acquitted, and this for the same nothing to do to assert that, but they ought to thing ; but he must have shewed the record, avoid all things that may be to the king's pre- and then averred upon the record that it was judice, and therefore it ought to be by the judg- for one and the saine crime. For suppose in ment of the court in this case set aside. But this case, which would have appeared perhaps do think you will never find a demurrer that was to be so, if he had done as he should have done, to a plea to the jurisdiction.

shewn that there was such an impeachment, L.C. J. Pray consider of that.

whereby he was impeached of high treason, Att. Gen. But if it appear to be a frivolous and which impeachment did charge him with plea in the form or in the matter, you will not treason for levying of war against the king, put us sure to demur.

and then have made a conclusion as he does L.C. J. If you do insist upon it, that you now, with an averment, that the impeachment won't demur, nor do nothing, we will give judg... and the indictment was for one and the same ment; but we will take time to consider it, it offence: under favour, notwithstanding his you won't demur, nor take issue, or reply. averment, the court would have judged them

Sir Fr. Withins. Will your lordship please to not to be the same ; for if so be the reason do spare me one word ? As it hath been observed not appear upon the record to be the same, his to your lordship, this is a plea to the jurisdiction averment will signify nothing; why then his of the court ; and if they do plead a plea of that pleading now this insufficiently for want of the nature, the court always expects the plea should record, will be better for him than if he had be substantially good, otherwise it is not to be pleaded it sufficiently. Why then if he had received. Now it is not substantially good here, now pleaded, that there is a record of the former for it says, that Fitzharris was impeached of impeachment, and set forth the record, and High-Treason : Now such an Impeachment then averred this was for the same, Mr.Attomey is haught, for nobody can be impeached for might take issue either there was no such re. High-I reason generally. It ought to come cord, or said it was another treason, and tra. and set forth the particular acts that make up versed it that it was not for the same ; and so the treason ; for the calling of a thing so, does there would either have been one trial by the pot make it so: therefore they that would record, or the other upon the fact by the coun. plead this plea, must come and shew that there try. But now as he bath made it

, this trial is an Impeachment that bath such matter in it both upon the record, and upon the fact, is as does aipount to treason ; so that then it being only triable by the country, not by the record,

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For if Mr. Attorney take issue that there is no it is reasonable you should consider of it, and such record, then all the record is, that he was when you are agreed, then you may ask our impeached for high treason, and then a record judgment. of impeachment for any high treason would L. C. J. We cannot put you to it to give a serve the turn ; which if it be not for the same, final answer to bind the king : therefore let it it ought not: so then the issue of null tiel Re- stand as it is; we will conseler of it. cord could not be taken. Why then now, my Att. Gen. Then, my lord, I will demur imLord, as to the fact: If Mr. Attorney take mediately. issue, that it was not the same treason, then Sol. Gen. And we pray they may join in dethe record must be tried ; that is, whether murter immediately. there was such a record that does contain an Serjeant Jefferics. If they do not mean it for impeachment for the same treason for which delay, now Mr. Attorney hath demurred, I he stands indicted; this, I say, must be tried suppose they will join demarrer immediately. by the country. And if he have pleaded it so,

[Then the Clerk of the crown drew up a that matter of record upon issue must be tried by the country, for that reason his plea is general Demurrer, which Mr. Attorney signed, naught; and if that be so, then the court may of the crown.]

and it was read in the court by the clerk be satisfied, and it is apparently pleaded only for delay, because he would not come to the prin- Alt. Gen. We pray they may join in cipal matter, and plead Guilty or Not Guilty, demurrer. which is the matter of fact most proper for the Mr. Williams. My lord, we that are assigned country. I rather hope he is not guilty than of counsel for this gentleman, the prisoner at that he is : but if he be guilty, it is the most the bar, (that your lordship may be satisfied, horrid venomous treason as ever was spread and all that hear us, that we do not design or abroad in any age. And for that reason your desire to delay one minute in this cause) do lordship will not give countenance to any delay. declare, that we will join in demurrer with And therefore we pray the Plea may be re- them immediately. jected, and he may answer over. Att. Gen. He hath not pleaded . prout patet murrer, which being signed by the four gen

[Then the clerk drew up the Joinder in De. L. C. J. Yes, it is prout patet in Rotulis tlemen of counsel with Mr. Fitzharris, was also

read in court.] * Farliamenti.' He does say that he was impeached of high treason by the Commons be- Alt. Gen. My lord, I pray your judgment; fore the Lords, as appears by the records there- here is an indictment for tiaming a treasonable of among the records of parliament.

libelAtt. Gen. I did not truly remember that; Mr. Williams. My lord, we hope we shall but I beg your pardon if it be so, for I had not not be put a view of the plea till now; but I am ready Atl. Gen. Pray, Sir, hear what I pray. thus far to satisfy the court, it is a pure false My lord, I desire your judgment, that the and frivolous plea. And then with submission plea may stand over-ruled for a plain fatal error 1 offer it to your consideration, whether you in it. T'his is a particular indictment for the will give any time, or presently reject it. framing a most pernicious scandalous libel

L. C. J. We will give them no time, that against the king and the government, for treais sure. But the question is, Whether time son in that particular; and I think there is no should not be taken, not in favour of the pri- person does doubt, but that this is a matter soner, but of the king and of the court ? within the jurisdiction of this court to try.

Atl. Gen. I am ready to make out, if it There is no difficulty in that. What do they were necessary, that there is nothing of all this do to out this jurisdiction? They come and true; it is all fiction that is pleaded, and no- plead, that Fitzharris was impeached de alto thing in the record to warrant it: I have a Proditione ; that is all they plead of highcopy of the whole journal, and of the transac- treason in general, to out the court of a juristions in the House of Lords, the book is close diction of a particular treason, for framing : by and ready to be shewn; but when it is a malicious traitorous libel; and this is a particufrivolous plea, 1 bope there will be no need of lar treason upon the statute of the 13th of this that trouble.

king. Now they have pleaded no particular L. C. J. Birt, Mr. Attorney, whether we treason upon that statute they were impeached can take notice of the Journal-book now, you for, nor upon the statute of the 25th of Edw.3. had best consider, as this case stands. which hath a general clause of a declaratory

Att.Gen. They ought to have it here ready, power, and it may be he was impeached upon they ought to have it here in poigne.

that, and we shall not intend it otherwise, that Justice Jones. There have been very many being the general law, the other but a particugood 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; sure tify their plea : but this in short I insist upop, 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 3. 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 statnte : I say, my lord, they ought L. C. J. You would have people think you 20 have pleaded it certainly, which they having have strange measure in this case, that you not done, it is fatal ; and I pray your judgment have not the same time given to you that was upon it: and I hope they are ready to make given to Plunket: Pray consider, you object good their plea.

these things as though the court were hard Sal. 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 Planket'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 forn, 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 euler foitz acquit, must set forth the in- nesses are in another kingdom, and it would be dictinent, and all the proceedings of the court a fortnight or three weeks before possibly he upon that indictment; this is the constant could have his witnesses here? This I mention, pleading in all cases, and particularly in Vaux's because you will needs make use of such a case, the fourth report. "Whoever will plead case, that is no more like yours than any thing euter foita acquit, must set forth the record, that is the farthest different from it; yet you before it will require an answer to be given will have the case to measure with your to it.

L. C. J. What do you say to it, gentlemen, Mr. Williams. My lord, I know it is in the for the maintaining of your plea.

discretion of the court; and as your lordship Mr. Williams. This is that we say, my did what was just for Plunket, so you will to lord: We hope your lordship, and the court, this person: I know you will do what is right in this case, will not tie us up presently to come to every body. We are counsel assigned by and argue this matter. One thing I would your lordship, and we doubt not but your lordmention, because it hath been said there never ship will be just to us, and give us a reasonwas such a precedent; I think, to this purpose, able time to argue it. the precedent of Elliot's case is very full in it. L. C.J. Look you by the way, Mr. WilMr. Attorney is pleased to say, he never found liams, I must tell you, when we assigned counthat any plea to the jurisdiction did ever require sel to Mr. Fitzharris, we expected that couna denurrer, but was over-ruled or allowed by sel should consider the plea, so as to be able to the court presently; but that case is plain to maintain it, when they come to plead it here ; the contrary upon that very matter. It was an for that reason we gave him time to plead it, só indictment brought against Elliot, for some as he would stand by it: What needed we else misdemeanors committed by him in the House to have assigned him so much counsel in such of Commons ; this being pleaded to the juris- a case as this is, but that he should be ready ? diction of the court, the Attorney-General at And why you should now hope that we will that time said it was not to be received ; that give you a longer time for argument in such a was the matter he insisted on then, that it case, I see not. Consider, whether in discreshould be rejected : but the court did then, as tion you think longer time ought to be expected you do now, over-rule the attorney in it, and upon such a plea as this is ? put him to demar.

Sir F. Win. My lord, we will not take upon L. C. J. We have done the same for you. us to prescribe, nor to mention any time in par

Mr. Willians. Then, my lord, here is a ticular, we leave that to the discretion and judgprecedent that Mr. Attorney hath not seen : ment of the court; but this, I think, we may Now for time, the court in that case did not pray, according to the duty we owe to our tie counsel up to argue the plea presently, client, upon your lordship's assigning us of but gave them time till the pext term. We ask counsel. We could not foresee till to-day, not so hard a thing of the court, as so long a wbat the king's counsel would do; whether

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case.

VOL. VIII.

us, or not.

Mr. Attorney would take issue upon us of null otherwise ; modern, and what we may call antiel Record, or upon any of our averments. We cient practice too, hath made an alteration from could not foresee whether he would demar to that method : and we humbly pray we may

I know your lordship will be as not proceed, but according to the rate of mofavourable to us as you can; not having those dern practice. My lord, whereas they are papers, or sight of those records that were ne- pleased to call it a frivolous plea, I believe it is cessary, and would have expedited this matter, à plea of the greatest import that ever these our time was all spent in forming of the plea, gentlemen came here about, whatsoever they and we could not prepare particular matter in are pleased to say. But your lordship knows law to defend it. We are as ready as can be the life of a man is the greatest favourite in expected, and we have been as industrious to law; and that to be a most ancient and wise prevent any delay, as any persons could be in rule, • De morte hominis nulla est cunctatio our condition ; therefore, it may be, we have longa.' And since we could not reasonably had a general consideration of the plea: but expect to be thought to come provided in this now we see where the doubts do lie upon it; it case, we humbly pray, that your lordship will is a matter of law pleaded to the jurisdiction of allot us such a reasonable time as your lordship the eourt. I do not indeed love to cite prece- shall think tit. dents upon what is plain ; but withal, I do not L. C. J. Come, let me propose this to you, love to say things upon a sudden are plain with. Will you plead over? out consideration : but this I will say, as it is Mr. Pollexfen. My lord, I will give you an trow upon this demirrer joined, it is a case well answer to that, We cannot do it. When we worth our taking care of, and yours too ; ) were together, we did consider, whether if we must say it with your lordship's leave. There should plead over, it would not destroy the plea, fore, it in the case of my lord Holis, which was and we were ot' opinion that it would destroy but upon an information, and that but for a mis- the plea : we cannot plead over, but we give up demeanor, and though it was a plea directly to the jurisdiction. It is as indifferent and light the jurisdiction of the court, and certainly they to me, as aoy body, to be forced to argue it came prepared; for they were all at liberty, and now; but as to the matter of it, I believe nohad resort to all papers and books before the body can say they ever saw many instances of plea pleaded, which we could not have; yet the the like nature: Therefore, pray, my lord, let court was pleased to assign them time, and give us not go on so hastily with it, for we could not them a large time, I hope we shall have some foreset, what since we know, how it would be reasonable time. I do not speak it, that we with us. I did not think they would have deshould have so long time; but I humbly be- murred; but now it is come to that, we must seech your lordship, that we may do our duty make the best of it. We have pleaded this to the court, and to our client, that we may have plea ;. if you will not be pleased to give us a little time. It is true, it is a great and a lor- leave and time to be prepared to argue it, you rid treason; but it is as true, here is the life of must take it as we are able, since we cannot a man concerned in it: we affect not delay at have time to make ourselves able. all, but hope you will not deny us what time is L. C. J. Certainly, Mr. Pollexfen, in faco. reasonable.

rem vila, it would not hurt the plea to plead L. C. J. Look you, I will tell you ; you might, if you had pleased, have entitled your- Att. Gen. My lord, if your lordship pleases selves better to have had time to speak to the to favour me a word in this case; I hear sere. plea, if you had pleaded over to the treason ; ral things urged, particularly instancing in mothen we could have given you time to have dern practice. If that gentleman will shew spoken to it, and not delayed the king at all : that in any case the king and the court were so but

you have thought fit not to plead over. I indulgent to give four days to plead to the jurismust confess, I did expect you would have diction of the court, then he will shew me plealed over, as you might have done, and I soinething of modern practice, wbich I know thought you would ; therefore having not not; but if that gentleman will remember modone it, it is in our consideration, whether we dern practice in a great nobleman's case, for will give you time, and what time we will give whom he was of counsel, it was told him, if he youl.

would debate the point of law, he must do it Mr. Wallop. It is under your lordship’s fa- presently: they never would give him time to vour, according to the usual course of modern prepare for his argument, there was no such practice. I have been an unprofitable attend modern practice then. I would desire him to ant here near forty years, and, for my part, 1 give me one instance, that when gentlemen are did never yet see so swift a proceeding as this assigned of counsel to plead a matter to the juis now ; it is as swift as lightning. It is a very I risuiction, and deal so with the king's counsel extraordinary thing; we night well conceive, as they have dealt with us, not to let us see the that nothing more should be expected from us plea till now; the modern practice hath been to than what is usual, and that we should not be give them any time. For them to say, that put ont of the ordinary proceedings. Anciently they could not foresee what we would be at; indeed, as your lordship did observe the other could they not foresee the points of law? day, they pleaded ore tenus, and then the pro- Could they not foresee a plain case ? but they ceedings were very quicki now indeed it is do not take off the great matter, that he tha

over.

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