Page images

of, was but 1,0001. and yet in few years they | my lord Russel and colonel Sidney might have were heightened to 10,000l. 20,0001. 30,0001. worn their heads on their shoulders to this day. and 40,0001.

All will agree, that there was a great strugFor the Second, the punishment of Oates, gle between the Whigs and Tories, as they Dangerfield, and Mr. Johnson; and the close were then called; for hanging or saving that imprisonment of Mr. Hampden, sir Samuel man: Both agreed he deserved to be hang. Barnardiston, and of several other persons, as ed; the first thought it their advantage to they were against the law, so they were with- save him if he would confess, the last out precedent.

thought it was fit to hang him for fear For the Third, though the Damages given he would confess. And to explain the matto Bolsworth were the first outrageous damages ter, it is fit to go a little higher : It cannot but given, which were taken notice of, and in truth be remembered, that before the breaking out were such; yet in little time damages for mat- of the popish plot, Mr.Claypole was imprisoned ters of like kind were quickly improved to in the Tower for designing to kill the king, in 10,000l. 20,000l. 40,0001. nay 100,000l. the such place and manner as Oates afterwards truth of which a great many living witnesses, discovered the papists intended to do it. Ia to their sorrow, can testify:

Trinity term, 1678, he had an Habeas Corpus For the Fourth, the seizing the City, and to the King's-bench, and was brought thither other Charters, upon the pretences on which in order to be bailed, and produced persons of they were questioned, was without example. worth to bail him; but the penalty of the bail

For the Fifth, the dispensing with the Test set by the court was so high, and the court so and Penal Laws was as mischievous as it was aggravated the crime for which he was comillegal; it making persons capable, who were mitted, and the likelihood of the truth of it, incapacitated by law of being in places, of ex- that the bail refused to stand, and Claypole was ercising offices, for whom the persons who had remanded to the Tower. But the term after, power to conter or bestow the same, had more when the matter, of which he was accused, affeetion, than for the persons who at that pre- appeared barefaced to be the design of other sent enjoyed them: The consequences of which people, he was let go, for fear the examination were quickly seen, in turning out the present of it should go further in proving the popish possessors, to make room for others; which plot than any thing at that time discovered. was the thing, which, as a Scotch bishop said And if it were now discovered, upon whose and of another matter, set the kiln a-fire.' what evidence he was committed, it would go Of these five particulars something hereafter

a great way in discovering the truth of many may be said ; at present, this treatise is only to matters, as yet in the dark (but that design consider how far the proceedings in capital miscarried, because the intrigue was discovered matters, of late years, have been regular or ir- before it took effect; and yet a like design was regular: and as to that, I shall not at all

con- still carried on, and many of the clergy of the sider how far the persons hereafter mentioned church of England had been prevailed with to were guilty of the crimes of which they were cry the popish up as a fanatic plot). The accused, but how far the Evidence against them papists and the clergy of the chureh of Eng. was convincing to prove them guilty, and land being in the late times equally sufferers

, what crimes the facts prored against thein in and oppressed by the fanatics, they naturally

grew to have a kindness for each other, and both joined in bating the fanatics; and therefore

pretended, at least, that they did not believe REMARKS on FITZharris's Trial. any thing of the Popish plot, but that report

was given out by the fanatics, whilst they The first person I shall begin withal shall be themselves were designing something against • zharris ; and that it may not be wondered, the church of England. The papists having the trial and condemnation

of a person, so great a part of the clergy of the church of was confessedly an Irish Papist, should England, ready to believe any thing of a fanaomplained of; and one whose crimes were tie plot, which they should förge, and observ: 1, that if the law declared had not made ing that that which gave credit to the Popish ital, it had been just, in respect of the male plot, was writings concurring with oral tesO, for the legislative power to have enact- timony, which it did; for very little of the

That he should suffer the severesi punish- truth of the Popish plot depended on the credit meat usually inflicted for the highest crime:, of Oates, Bedlow, or any other person, most yet, in respert of the common good, it had of the facts of that design, when discovered, been just and fit to bare pardoned him, if he proving themselves: To instance in one; Oates would have confessed who were his conspi- discurered Coleman had intelligence with La rators and setters-on ; for I am apt to think, Chaise of a design on England, and that Colethat if that matter had been thoroughly looked man had papers iestiiving as much ; when into, some persons, afterwards witnesses in the thuse papers were seized, and owned by Cole

! Russel's, colonel Sidney's, and Mr. Hamp- man, and the purport of them was what Oates den's Trials, had either nerer been produced, said they were, it was not material

, whether or had not been credited if produced; nor would Oates was a man of truth or not; the papers, my lord of Essex's larvat bave been cut; and without Dates's further evilence, sufficiently

law were.

proved the design: I say, the papists having | Fitzharris, which was received ; after which observed what the evidence was which gave the House of Lords made an order, that Fitzcredit to that plot, resolved to pursue the same harris might or should be tried in the King'ssteps, and therefore Dangerfield was made use bench for the same treason ; suddenly after fo to leave papers in col. Mansel's lodging, who wbich that parliament was dissolved. Whether was an acquaintance of my lord Shaftsbury's, Fitzharris's business was the break-neck of importing a plot;* but that was so foolishly that parliament, I know not, but it was shrewd. carried on, and the the then Attorney-General | ly suspected it was. (sir Creswel Levinz,) who had the examination There was at that time a Chief Justice in of that matter, not being qualified with the as- the King's-bench, (sir William Scroggs,) who surance his successor had to carry on a thing was himself under an impeachment of highthat had neither sense nor honesty in it, made treason, and had not, for that reason, sat in such a scurvy report of the matter to the king court for some terms preceding ; and the trial and council, that they were enforced to vote of Fitzharris being generally looked upon to Mansel innocent, Dangerfield guilty, and that be as illegal as it was odious, it was thought it was a design of the papists to lay a plot to the convenient to carry it on by a person of better dissenters charge, and a further proof of the credit ; whereupon one who had been a puisne Popish plot. But that Attorney-General being judge of that court, (sir Francis Pemberton) removed to a place of more honour, though of and had behaved himself very plausibly, and less profit, and another (sir Robert Sawyer) put had gained credit by being turned out, was in his place, the papists resolved to carry on thought to be the fittest person to undertake the same design; and no person a fitter instru- it, and accordingly the then present Chief ment than Fitzbarris, in respect of his religion Justice was removed, and the other was preand his acquaintance; but before his design ferred to his place. came to perfection, it was discovered.

It being resolved that Fitzharris should be He was first imprisoned in Newgate, where tried, the business was, how to get Witnesses some persons (amongst whom Mr. Cornish, as to give evidence to a jury, and how to get juI remember, then Sheriff, was believed to be ries to find the bill, and to convict the prisoner, one, and it was not the least of his crime that which were difficult preliminaries. he endeavoured to look into that Arcanum) A person (sir William Waller,) who had been went to examine him as to the particulars of that one of the House of Commons which had exdesign ; which was quickly taken notice of, bibited the Impeachment, was a principal witand the prisoner, in breach of the Habeas Cor- ness; but if he should give evidence on the inpus act, removed from thence to the Tower, dictment, he knew not how far he might be where he was kept close prisoner.

hereafter questionable and punishable for it, The parliament at Oxford meeting soon when a parliament should sit again ; but at after Fitzharris's apprehension, and the House last that person was prevailed upon to give eviof Commons being informed of as much of dence, but by what means is best known to his designs as was then discovered, they himself. And as for the juries, grand and petty, thought themselves highly concerned to ex- they were satisfied with the direction of the amine him ; but how to do it they knew not : court, that they not only might, but ought to find only they resolved (upon a report which one the bill and verdict, according to their evidence. of iheir members made them of one Hubert, And I think the court was so far in the right. who confessed himself guilty of firing the That matter being adjusted, a Bill of HighCity of London,t upon which it was resolved Treason was found against the prisoner; whereto examine him in the House of Commons the upon he was presently arraigned, and after next morning, but before the House sat, Hu- much contest, and declaration of the court, bert was hanged) that Fitzharris should not be that they could hear nothing till he had pleaded hanged vithout their knowledge and consent; in chief (which if he had done, the plea he afand to effect it, they remembered a design to terwards pleaded which was the jurisdiction of try the five popish lords in the Tower upon the court, had come too late), he had leave Indictments ; whereupon, if they should be given him to plead the special matter of the acquitted, it was thought that these acquittals impeachment; and accordingly counsel were might be pleadable to impeachments. To pre assigned him to draw up and argue his Plea veat which, the House had exhibited general put in to the jurisdiction of the court: which impeachments of high-treason against them in was, “ That he was impeached in a superior the House of Lords ; which had such success, court for the same treason.” that the lords were never, and the judges gave Great endeavours were used to have the plea their opinion that they could not be, tried on over-ruled, without so much as hearing the prithe indictments, as long as the impeachments soner's counsel forthe maintaining it. The prewere in being; for which reason the House of tences were, that the prisoner on his plea ought Commons exhibited a general impeachment of to have produced the record of his impeachhigh-treason in the House of Lords against ment, and that the plea of the impeachment

for High-Treason in general was naught, with* See the note to Cellier's Case, ante, vol. 7, out specifying what the High-Treason was for p. 1055.

which he was impeached; for an impeach+ See vol. 6, p. 807, of this Collection. ment, or an indictment of High-Treason in ge. peral was naught; that the king had power to or else he might have said, that the impeachproceed on an impeachment or indictment for ment was not for the same treason for which the same thing, at his election : That the alle he was indicted; but having demurred, he had gation, that Fitzharris was impeached, which confessed both to be true. That at common . impeachment stood in full force,” not having law, if an appeal of murder had been brought

, mentioned an impeachment before, was naught. the king could not proceed on the indictment, But afterwards the Attorney General demurred, till the appeal was determined ; that the judges

, and the prisoner joined in the demurrer. And whereof some were then in court, had given then a day was given to argue the plea till Sa- their opinions to the king and council concert. turday the 7th of May, at which time the At- ing the five Popish Lords, that they could not torney added to the exceptions he took to the be tried upon indictments, so long as general plea, Whether a suit in a superior court can impeachments were depending for the same take away the jurisdiction of another inferior treason : and yet their cases and this deferred; court, who had an original jurisdiction of the there the indictments were found before the imcause, of the person, and of the fact, at the time peachments preferred, and here, after the im. of the fact committed ?

peachment. To maintain the plea, the counsel for the In the reply to vitiate the Plea, it was insistprisoner alledged, that an impeachment differed ed, That it did not conclude • si curia procedere from an indictment; the first was at the suit of debeat as well as valt,' as was usual for the Commons of England, and was like an ap- Pleas of that nature to do ; that perhaps this peal, or rather an appeal resembled an impeach- matter, if the prisoner had been acquitted upon ment; that the proceeding were different in the Impeachment, might have been pleaded in the trials : in the first, the trial is by the House bar to the Indictment, but it was not pleadable of Lords; in the last, of a commoner, by a to the jurisdiction of the court; that in the case jury of Commons. In the last, but little time of the Five Lords, the Indictments were rewas allowed for giving or considering of the moved into the House of Lords; that appeals evidence; in the first, a much longer time. in treasons are taken away by the first of Henry That this matter was never practised before; the 4th; that in the Plea it ought to be arerred

, that the king may pardon a criminal prosecuted what Lex et Consuetudo Parliamenti are; that by an indictment, but not by an impeachment till Articles carried up, no man impeached is no more than if prosecuted by an appeal. If obliged to answer ; that in all cases of Appeals

, he should be acquitted on the indictment it a man is put twice in jeopardy of his life, if bi might be a question, whether that may be be tried upon an indictment within a year. pleaded in bar to the impeachment; and if not, To take a short review of what hath been rethe prisoner should be brought twice in jeopardy cited, it was thought the king's counsel run the of his life for the same crime contrary to the court upon a rock, and it was bard for them to rule of law.

get off. The court had advised them to take To the abjection, That the Plea was not certain; time to consider what course they would take; it being pleaded as an impeachment of High" but the king's counsel were basty, as they alTreason, not setting forth the High-Treason in ways were, when they were resolved to carry particular ; it was answered, that an impeach- a matter right or wrong; and having three bad ment differed from an indictment: for by the ways, they chose the worst. custom of Parliament, which is the law of the If they had taken issue on the record, or the land, such a general impeachment is good ; but averment, that the impeachment and indict. by the law, a general indictment of High-Trea- ment were not for the same treason, they might son, without specifying what, when, where, or have pretended that the Journal of the House how, is not good ; and therefore the plea of an of Lords was not a record, or that the Debates indictment and an impeachment is variant. in the House of Commons were not good evi

To the objection, That there was no impeach- dence; or if they had replied, the order of the ment mentioned before the averment of quæ House of Lords for trying the prisoner in the quidem impetitio, it was frivolous ; for it was King's-Bench, to the plea, they might have inbefore mentioned that he was impeached, and sisted on the power of the House so to do ; but then by a necessary consequence there was an having demurred, they confessed the truth of impeachment.

all the matter of the plea, and waved the benefit As to the objection, That the king might, in of that order, and stood upon points of law, which court he would, prosecute for High- either conceded by the court, or resolved by the Treason, it was little to the purpose ; for the judges before, or sach necessary inferences case did not come up to it, the impeachment from them as were impossible to be denied. being the suit of the Commons, and pot of the It could not be denied, but a general ireking; and that the courts of Westminster-Hall peachment of high treason, by the custom had refused to meddle with matters relating to of parliament, was good; it could not the parliament. That though the impeach- be denied, but, by the resolution of the judges ment was general, yet it was made certain by in the case of the Lorus in the Tower, a ge the averment ; that it was for the same crime neral impeachment of high treason stoppen for which the indictment was : That the At- proceedings upon an indictment for the same torney-General might have taken issue, that matter. It did not differ the case, that the in there was no such impeachment as was pleaded, dictments in the King's-Bench against the

[ocr errors]

Lords were removed into the House of Lords ; | indictment, which he did, Not Guilty; and his
for every one knows new indictments might trial ordered to be the next term.
have been preferred against them for the same I think it would puzzle any person to shew,
crimes. And if that had been the reason of the if ever a court of Westminster-Hall thought a
judges resolution, why did not the judges then matter to be of such difficulty as fit to be ar-
in court, all, or most part of whom were judges gued, that they gave their judgments after-
at the giving that opinion, deny the opinion, or wards without the reasons : it is true, that the
the reason alledged? which they did not. It courts of civil law allow debates amongst the
was not a reason to disallow the plea, because judges to be private among themselves ; but
particular articles use to follow general im. the proceedings at common law always were,
peachments, and the impeached are not bound and ought to be, in aperta curia.* Had this
to answer till the particular articles were exhi- practice taken place heretofore,+ as it hath of
bited, which is true ; for by the same reason, a late (but all since this precedent), no man
defendant cannot plead an action depending could bave known what the law of England
against him for the same matter in a superior was, for the year-books and reports are nothing
court, unless the plaintiff hath declared against but a relation of what is said by the counsel
him in the superior court, which is not true. It and judges in giving judgment, and contain the
was not a reason that all records in inferior reasons of the judgment, which are rarely ex-
courts must be pleaded particularly, as indict-pressed in the record of the judgment; and it
ments, and the like; because such records must is as much the duty of a judge to give the
be certain and particular, or else they are erro- reasons why he doubts, as it is of him who is
neous, and cannot be pleaded; but an impeach-' satisfied in the judgment.. Men sometimes
ment may be general.

will be ashamed to offer those reasons in public, Where the matter of a plea is naught, no which they may pretend, satisfy them; if conform can make it good; though where the mat- cealed ; besides, we have a maxim in law unter of a plea is good, an ill form may spoil it. deniable, and of great use, that any person If therefore a general indictment or record is whatever may rectify or inform a Court or naught, as in all the cases cited against the judge publicly or privately, as Amicus Curiæ, plea, it was no special averment to reduce it to a friend to the Court, or a friend to justice : a certainty, or any form can make it a good but can that be done, if the standers-by know plea: but a general impeachment is good, and not the reason upon which the Court pronounce therefore it may and must be pleaded generally; their judgment ? Had the three judges, who and pleading it specially would make it false, if were clear in their opinion, given their reasons there were no subsequent articles, as in this of that opinion, perhaps some of the standers. case there were not, to ascertain it.

by might have shewed reasons unthought of by It is to no purpose to run through all the them, to have made them stagger in, if not ramble of the counsel or court against the plea, alter that opinion ; or if justice Dolben had when they all said the matter of the plea was given the reason of his doubt, perhaps a Rot in question, but the form ; and yet when so stander-by might have shewy him a reason often asked, in what of the form it was defec- unthought of by him, which would have made tive, they were not able to answer. If it be him positive that the plea was or was not a agreed that the matter of a plea is good, but it good plea. is defective in form, they always shew how it If a man swears what is true, not knowing it ongbt or might have been mended; which in to be true, though it be logically a truth as it is this case was never done: and as this case was distinguished, yet it is morally a lye; and if a new in several particulars, so it is in this, that judge give judgment according to law, not in reading all the arguments of this plea, no knowing it to be so, as if he did not know the man knows, by what was discoursed, what was reason of it at that time, but bethought himself the point in question.

of a reason for it afterwards, though the judgAfter the arguments, the chief justice, in ment be legal, yet the pronouncing of it is sbow at least, very favourably offers the pri- unjust. soner's counsel liberty tỏ amend the plea, if Judges ought to be bound up by the reasons they could; which they (apprehending as they given in public, and not satisfy or make good had reason, for I think none can shew how it their judgment by after-thought of reasons. might have been mended, rather a catch than a How very ill did it become the chief justice favour) refused to do; whereupon the court Popham, a person of learning and parts, in the took time to consider of it, and on the 11th of attainting sir Walter Raleigh, of which trial May, there being a great auditory, rather to all since that time have complained ? when he bear how the judges would bring themselves gave his opinion, that the affidavit of the lord ofi, than to know what the law of the plea was, the chief justice, without any reasons, delivered * 2 Co. Inst. 103. the opinion of the court, upon conference had t Of old time before Edw. 3, the reasong with other judges, that his brothers, Jones, used to be entered on record in cases of diffiRaymond, and himself, were of opinion that the culty ; but ever afterwards were constantly plea was insufficient; his brother Dolben not pronounced by the Court, that they might be resolved, but doubting concerning it, and there- published in the Books of Cases and Reports, fore awarded the prisoner should plead to the 4 Co. Inst. 4, YOL. VIII,

2 F

Cobham, taken in the absence of sir Walter, cited in colonel Sidney's trial, as the opinion of night be given in evidence against him, without all the judges of England, That no freehold producing the lord Cobham face to face to sir was no challenge to a juror in treason at com. Walter (which was desired by him although mon law; and colonel Sidney's trial was in a the lord Cobham was then forthcoming). county at large. When he summed up the evidence, he said, But if it was not a challenge at commor • Just then it came into his mind, why the law, I would know how it came to be a chalaccuser should not come face to face to the lenge in Fitzharris's case? There was no inprisoner, because he might retract bis evi- tervening act of parliament to alter the law bedence ; and when he should see himself must tween the two trials, that I know of. die, he would think it best that his fellow Another art used, was to challenge for the should live to commit the like treason ; and king without cause, where no cause could be so in some sort seek revenge.'* Which, be shewn, such jurors as they did not like. sides that it is against the common law, and The prisoner was troubled at this, and ap. reason, it is against the express statute of peals to the Court, whether the Attorney-GeEdw. 6, which takes care, that in treason the neral was not obliged to shew his cause of witness shall be brought face to face of the challenge; but is answered by the Court

, person accused.

that he need not till all the pannel was gone Did it become a just man to give his opinion, through, or the rest of the jurors challenged, and bethink himself of a reason afterwards ? which is true ; but had the prisoner been adAnd I am mistaken if it will not herein appear, vised to challenge the rest of the jury, as he that many persons complained of, have not would bave been if he had had counsel, the been guilty of the same weakness or injustice, attorney must have waved his challenge, or call it which you will ; so foolish are the best put off the trial. And since he was not allowed lawyers and plausible speakers, when they re- counsel, why should not the Court, according solve to carry a point, whether just or not to their duty, as they have said it is, advised however they may deceive the ignorant, yet him so to do ?* I am sure, in count Coningthey talk and argue very absurdly to the ap- sınark's trial,† when sir Francis Winnington prehension of the majority of mankind. And challenged a juror withont cause for the king, they had been sooner discovered, but that the the Court presently asked the cause; and skiscoverers were quickly suppressed and crush- such answer was made by the prosecutor's ed, as scandalizers of the justice of the nation. counsel as was made to Fitzharris : whereAnd I think this may be justly called the fust upon the Court told the count, that the way to mute judgment given in Westminster-Hall. make them shew their cause of challenge, was But to return to Fitzharris's trial, which to challenge all the rest of the jury;

and there. came on the 9th of June ; and then the king's upon the challenge was waved. They were counsel made use of their arts in managiog the different practices, tending to different ends; jury. And first, there were a great many per- and accordingly it succeeded ; Fitzharris was sons for jurors to whom Mr. Attorney had no convicted, and the count acquitted. stomach ; some challenged for cause, for that Upon the trial the evidence was this ; Fitz. ahey were no Freeholders, as John Kent, Giles barris was, the 21st day of February 1681, Shute, Nathaniel Grantham, and several others; with Everard, and gave him heads by word of and the challenge allowed to be a good chal-mouth, to write the pamphlet in the indict. lenge by all the Court ; for though the chief ment mentioned, to scandalize the king, raise justice only spoke, yet all the Court assent to rebellion, alienate the hearts of the people, and what one judge says, if they do not shew their set them together by the ears; the libel was to dissent. I do not take notice of this, as com- be presented to the French ambassador's conplaining of it, for I think it is a good cause of fessor, and he was to present it to the French challenge in treason ; but then I cannot but ambassador ; and it was to set these people fronder at the assurance of the same king's together by the ears, and keep them clashing counsel, who denied it to be a good cause of and mistrusting one another, whilst the French ehallenge in the lord Russel's trial. It is true, should gain Flanders, and then they would that was a trial in the city, but that matter had make no bones of England: for which libet Bo consideration in the judgment; for after the Everard was to have forty guineas, and a bord Russel's counsel had been heard, all the monthly pension, which should be some thoujudges delivered their opinions, that at common sands of pounds. Everard was to be brought law, No Freehold was no challenge in treason ; into the cabal, where several Protestants and and that the 1 and 2 Phil. et Mar. had re parliament-men came, to give an account to stored the trial in treason to be what it was at the ambassador how things were transacted. coromon law : of wbich number of judges, sir Everard asked what would be the use of the Francis Pemberton and sir Thomas Jones were libels ? Fitzharris said, we shall disperse them two; nay, sir Francis Pemberton asked Mr. we know how; they were to be drawn in the Pollexfen, whether he found any resolution at common law, that no freehold was a challenge * See the Note to the Case of Don Pantein treason. And that judgment is afterwards leon Sa, vol. 5, p. 466, and that to Twya'

Case, vol. 6, p. 516, of this Collections • Sce vol. 2, p. 31, of this Collection, + See the Trial, infra

« PreviousContinue »