of, was but 1,000. and yet in few years they were heightened to 10,000l. 20,000l. 30,000l. and 40,000l.

For the Second, the punishment of Oates, Dangerfield, and Mr. Johnson; and the close imprisonment of Mr. Hampden, sir Samuel Barnardiston, and of several other persons, as they were against the law, so they were without precedent.

For the Third, though the Damages given to Bolsworth were the first outrageous damages given, which were taken notice of, and in truth were such; yet in little time damages for matters of like kind were quickly improved to 10,000l. 20,000l. 40,000l. nay 100,000l. the truth of which a great many living witnesses, to their sorrow, can testify.

For the Fourth, the seizing the City, and other Charters, upon the pretences on which they were questioned, was without example.

For the Fifth, the dispensing with the Test and Penal Laws was as mischievous as it was illegal; it making persons capable, who were incapacitated by law of being in places, of exercising offices, for whom the persons who had power to confer or bestow the same, had more affection, than for the persons who at that present enjoyed them: The consequences of which were quickly seen, in turning out the present possessors, to make room for others; which was the thing, which, as a Scotch bishop said of another matter, set the kiln a-fire.'

my lord Russel and colonel Sidney might have worn their heads on their shoulders to this day.

All will agree, that there was a great struggle between the Whigs and Tories, as they were then called; for hanging or saving that man: Both agreed he deserved to be hanged; the first thought it their advantage to save him if he would confess, the last thought it was fit to hang him for fear he would confess. And to explain the matter, it is fit to go a little higher: It cannot but be remembered, that before the breaking out of the popish plot, Mr.Claypole was imprisoned in the Tower for designing to kill the king, in such place and manner as Oates afterwards discovered the papists intended to do it. In Trinity term, 1678, he had an Habeas Corpus to the King's-bench, and was brought thither in order to be bailed, and produced persons of worth to bail him; but the penalty of the bail set by the court was so high, and the court so aggravated the crime for which he was com mitted, and the likelihood of the truth of it, that the bail refused to stand, and Claypole was remanded to the Tower. But the term after, when the matter, of which he was accused, appeared barefaced to be the design of other people, he was let go, for fear the examination of it should go further in proving the popish plot than any thing at that time discovered. And if it were now discovered, upon whose and what evidence he was committed, it would go a great way in discovering the truth of many matters, as yet in the dark (but that design before it took effect; and yet a like design was miscarried, because the intrigue was discovered still carried on, and many of the clergy of the church of England had been prevailed with to cry the popish up as a fanatic plot). The papists and the clergy of the church of England being in the late times equally sufferers, and oppressed by the fanatics, they naturally grew to have a kindness for each other, and both joined in hating the fanatics; and therefore pretended, at least, that they did not believe 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 tzharris; and that it may not be wondered, the church of England. The papists having at the trial and condemnation of a person, so great a part of the clergy of the church of o was confessedly an Irish Papist, should England, ready to believe any thing of a fanacomplained of; and one whose crimes were tie plot, which they should forge, and observ h, that if the law declared had not made ing that that which gave credit to the Popish pital, it had been just, in respect of the male- plot, was writings concurring with oral tesctor, for the legislative power to have enact-timony, which it did; for very little of the d, That he should suffer the severest punish- truth of the Popish plot depended on the credit inent usually inflicted for the highest crime: of Oates, Bedlow, or any other person, most yet, in respect of the common good, it had of the facts of that design, when discovered, been just and fit to have pardoned him, if he proving themselves: To instance in one; Oates would have confessed who were his conspi- discovered 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 testifying as much; when into, some persons, afterwards witnesses in the those papers were seized, and owned by Coled Russel's, colonel Sidney's, and Mr. Hamp-man, and the purport of them was what Oates den's Trials, had either never 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 throat have been cut; and without Oates's further evidence, sufficiently

Of these five particulars something hereafter may be said; at present, this treatise is only to consider how far the proceedings in capital matters, of late years, have been regular or irregular: and as to that, I shall not at all consider how far the persons hereafter mentioned were guilty of the crimes of which they were accused, but how far the Evidence against them was convincing to prove them guilty, and what crimes the facts proved against them in

law were.

REMARKS ON FITZHARRIS'S TRIAL.

the House of Lords made an order, that Fitzharris might or should be tried in the King'sbench for the same treason; suddenly after which that parliament was dissolved. Whether Fitzharris's business was the break-neck of that parliament, I know not, but it was shrewd,

proved the design: I say, the papists having | Fitzharris, which was received; after which observed what the evidence was which gave credit to that plot, resolved to pursue the same steps, and therefore Dangerfield was made use fo to leave papers in col. Mansel's lodging, who was an acquaintance of my lord Shaftsbury's, importing a plot; but that was so foolishly carried on, and the the then Attorney-Generally suspected it was. (sir Creswel Levinz,) who had the examination of that matter, not being qualified with the assurance his successor had to carry on a thing that had neither sense nor honesty in it, made such a scurvy report of the matter to the king and council, that they were enforced to vote Mansel innocent, Dangerfield guilty, and that it was a design of the papists to lay a plot to the dissenters charge, and a further proof of the Popish plot. But that Attorney-General being removed to a place of more honour, though of less profit, and another (sir Robert Sawyer) put in his place, the papists resolved to carry on the same design; and no person a fitter instrument than Fitzharris, in respect of his religion and his acquaintance; but before his design came to perfection, it was discovered.

He was first imprisoned in Newgate, where some persons (amongst whom Mr. Cornish, as I remember, then Sheriff, was believed to be one, and it was not the least of his crime that he endeavoured to look into that Arcanum) went to examine him as to the particulars of that design; which was quickly taken notice of, and the prisoner, in breach of the Habeas Corpus act, removed from thence to the Tower, where he was kept close prisoner.

There was at that time a Chief Justice in the King's-bench, (sir William Scroggs,) who was himself under an impeachment of hightreason, and had not, for that reason, sat in court for some terms preceding; and the trial of Fitzharris being generally looked upon to be as illegal as it was odious, it was thought convenient to carry it on by a person of better credit; whereupon one who had been a puisne judge of that court, (sir Francis Pemberton) and had behaved himself very plausibly, and had gained credit by being turned out, was thought to be the fittest person to undertake it, and accordingly the then present Chief Justice was removed, and the other was preferred to his place.

It being resolved that Fitzharris should be tried, the business was, how to get Witnesses to give evidence to a jury, and how to get juries to find the bill, and to convict the prisoner, which were difficult preliminaries.

A person (sir William Waller,) who had been one of the House of Commons which had exhibited the Impeachment, was a principal witness; but if he should give evidence on the indictment, he knew not how far he might be hereafter questionable and punishable for it, when a parliament should sit again; but at last that person was prevailed upon to give evidence, but by what means is best known to himself. And as for the juries, grand and petty, they were satisfied with the direction of the court, that they not only might, but ought to find the bill and verdict, according to their evidence. And I think the court was so far in the right.

The parliament at Oxford meeting soon after Fitzharris's apprehension, and the House of Commons being informed of as much of his designs as was then discovered, they thought themselves highly concerned to examine him; but how to do it they knew not: only they resolved (upon a report which one of their members made them of one Hubert, who confessed himself guilty of firing the That matter being adjusted, a Bill of HighCity of London, upon which it was resolved Treason was found against tre 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 without 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 vent 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 their opinion that they could not be, tried on the indictments, as long as the impeachments were in being; for which reason the House of Commons exhibited a general impeachment of high-treason in the House of Lords against

Great endeavours were used to have the plea over-ruled, without so much as hearing the prisoner's counsel for the maintaining it. The pretences were, that the prisoner on his plea ought to have produced the record of his impeachment, and that the plea of the impeachment for High-Treason in general was naught, without specifying what the High-Treason was for which he was impeached; for an impeachment, or an indictment of High-Treason in ge

neral 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 concern. 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 im cause, 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 prisoner alledged, that an impeachment differed from an indictment; the first was at the suit of the Commons of England, and was like an appeal, or rather an appeal resembled an impeachment; that the proceeding were different in the trials: in the first, the trial is by the House of Lords; in the last, of a commoner, by a jury of Commons. In the last, but little time was allowed for giving or considering of the evidence; in the first, a much longer time. That this matter was never practised before; that the king may pardon a criminal prosecuted by an indictment, but not by an impeachment no more than if prosecuted by an appeal. If he should be acquitted on the indictment it might be a question, whether that may be pleaded in bar to the impeachment; and if not, the prisoner should be brought twice in jeopardy of his life for the same crime contrary to the rule of law.

To the objection, That the Plea was not certain; it being pleaded as an impeachment of High Treason, not setting forth the High-Treason in particular; it was answered, that an impeachment differed from an indictment: for by the custom of Parliament, which is the law of the land, such a general impeachment is good; but by the law, a general indictment of High-Treason, without specifying what, when, where, or how, is not good; and therefore the plea of an indictment and an impeachment is variant.

To the objection, That there was no impeach ment mentioned before the averment of qua quidem impetitio, it was frivolous; for it was before mentioned that he was impeached, and then by a necessary consequence there was an impeachment.

As to the objection, That the king might, in which court he would, prosecute for HighTreason, it was little to the purpose; for the case did not come up to it, the impeachment being the suit of the Commons, and not of the king; and that the courts of Westminster-Hall had refused to meddle with matters relating to the parliament. That though the impeachment was general, yet it was made certain by the averment; that it was for the same crime for which the indictment was: That the Attorney-General might have taken issue, that there was no such impeachment as was pleaded,

In the reply to vitiate the Plea, it was insist. ed, That it did not conclude si curia procedere debeat' as well as vult,' as was usual for Pleas of that nature to do; that perhaps this matter, if the prisoner had been acquitted upon the Impeachment, might have been pleaded in bar to the Indictment, but it was not pleadable to the jurisdiction of the court; that in the case of the Five Lords, the Indictments were removed into the House of Lords; that appeals in treasons are taken away by the first of Henry the 4th; that in the Plea it ought to be averred, what Lex et Consuetudo Parliamenti are; that till Articles carried up, no man impeached is obliged to answer; that in all cases of Appeals, a man is put twice in jeopardy of his life, if he be tried upon an indictment within a year.

To take a short review of what hath been recited, it was thought the king's counsel run the court upon a rock, and it was hard for them to get off.

The court had advised them to take time to consider what course they would take; but the king's counsel were hasty, as they always were, when they were resolved to carry matter right or wrong; and having three bad ways, they chose the worst.

a

If they had taken issue on the record, or the averment, that the impeachment and indictment were not for the same treason, they might have pretended that the Journal of the House of Lords was not a record, or that the Debates in the House of Commons were not good evidence; or if they had replied, the order of the House of Lords for trying the prisoner in the King's-Bench, to the plea, they might have insisted on the power of the House so to do; but having demurred, they confessed the truth of all the matter of the plea, and waved the benefit of that order, and stood upon points of law, either conceded by the court, or resolved by the judges before, or such necessary inferences from them as were impossible to be denied.

It could not be denied, but a general inpeachment of high treason, by the custom of parliament, was good; it could not be denied, but, by the resolution of the judges in the case of the Lords in the Tower, a ge neral impeachment of high treason stopped proceedings upon an indictment for the same matter. It did not differ the case, that the indictments in the King's Bench against the

indictment, which he did, Not Guilty; and his trial ordered to be the next term.

I think it would puzzle any person to shew, if ever a court of Westminster-Hall thought a matter to be of such difficulty as fit to be argued, that they gave their judgments afterwards without the reasons: it is true, that the courts of civil law allow debates amongst the judges to be private among themselves; but the proceedings at common law always were, and ought to be, in aperta curia.* Had this late (but all since this precedent), no man could have known what the law of England was, for the year-books and reports are nothing but a relation of what is said by the counsel and judges in giving judgment, and contain the reasons of the judgment, which are rarely ex

Lords were removed into the House of Lords; for every one knows new indictments might have been preferred against them for the same crimes. And if that had been the reason of the judges resolution, why did not the judges then in court, all, or most part of whom were judges at the giving that opinion, deny the opinion, or the reason alledged? which they did not. It was not a reason to disallow the plea, because particular articles use to follow general impeachments, and the impeached are not bound 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 defendant cannot plead an action depending against him for the same matter in a superior court, unless the plaintiff hath declared against him in the superior court, which is not true. It was not a reason that all records in inferior courts must be pleaded particularly, as indict-pressed in the record of the judgment; and it ments, and the like; because such records must be certain and particular, or else they are erroneous, and cannot be pleaded; but an impeachment may be general.

Where the matter of a plea is naught, no form can make it good; though where the matter of a plea is good, an ill form may spoil it. If therefore a general indictment or record is naught, as in all the cases cited against the plea, it was no special averment to reduce it to a certainty, or any form can make it a good plea: but a general impeachment is good, and therefore it may and must be pleaded generally; and pleading it specially would make it false, if there were no subsequent articles, as in this case there were not, to ascertain it.

It is to no purpose to run through all the ramble of the counsel or court against the plea, when they all said the matter of the plea was not in question, but the form; and yet when so often asked, in what of the form it was defective, they were not able to answer. If it be agreed that the matter of a plea is good, but it is defective in form, they always shew how it ought or might have been mended; which in this case was never done: and as this case was new in several particulars, so it is in this, that in reading all the arguments of this plea, no man knows, by what was discoursed, what was the point in question.

After the arguments, the chief justice, in show at least, very favourably offers the prisoner's counsel liberty to amend the plea, if they could; which they (apprehending as they had reason, for I think none can shew how it might have been mended, rather a catch than a favour) refused to do; whereupon the court took time to consider of it, and on the 11th of May, there being a great auditory, rather to hear how the judges would bring themselves off, than to know what the law of the plea was, the chief justice, without any reasons, delivered the opinion of the court, upon conference had with other judges, that his brothers, Jones, Raymond, and himself, were of opinion that the plea was insufficient; his brother Dolben not resolved, but doubting concerning it, and therefore awarded the prisoner should plead to the

YOL. VIII,

>

is as much the duty of a judge to give the reasons why he doubts, as it is of him who is satisfied in the judgment. Men sometimes will be ashamed to offer those reasons in public, which they may pretend, satisfy them, if concealed; besides, we have a maxim in law undeniable, and of great use, that any person whatever may rectify or inform a Court or judge publicly or privately, as Amicus Curiæ, a friend to the Court, or a friend to justice: but can that be done, if the standers-by know not the reason upon which the Court pronounce their judgment? Had the three judges, who were clear in their opinion, given their reasons of that opinion, perhaps some of the standersby might have shewed reasons unthought of by them, to have made them stagger in, if not alter that opinion; or if justice Dolben had given the reason of his doubt, perhaps a stander-by might have shewn him a reason unthought of by him, which would have made him positive that the plea was or was not a good plea.

If a man swears what is true, not knowing it to be true, though it be logically a truth as it is distinguished, yet it is morally a lye; and if a judge give judgment according to law, not knowing it to be so, as if he did not know the reason of it at that time, but bethought himself of a reason for it afterwards, though the judg ment be legal, yet the pronouncing of it is unjust.

Judges ought to be bound up by the reasons given in public, and not satisfy or make good their judgment by after-thought of reasons. How very ill did it become the chief justice Popham, a person of learning and parts, in the attainting sir Walter Raleigh, of which trial all since that time have complained? when he gave his opinion, that the affidavit of the lord