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name of the Nonconformists, and to be put and employed by him in some trifling businesses, fathered upon them. This was the sum of and that he had got money of him ; but added, Ererard's evidence.
as of his own knowledge, that the king never Mr. Smith proved Fitzharris's giving in spoke with him till after he was taken, which structions to Everard ; and sir William Waller was the 28th February last. and others proved the libel, and the discourse Al the Evidence being over, it was summed about gaining Flanders and England : other up by the counsel, That upon all the circumwitnesses were examined to prove Fitzharris's stances of it, Fitzharris was the contriver and hand. For the prisoner, Dr. Oates said, Ere- director of the libel; that it was a treasonable rard told him the libel was to be printed, and libel, and a jesuitical design ; that the excuse to be sent about by the penny-post to the pro- he made, as if Everard drew him into it, or testing lords, and leading men of the House of trepanned bim into it, was in vain, nothing of Comraons, who were to be taken up as soon as that being proved. That Everard could do they had it, and searched, and to have it found nothing alone, and therefore sir Willian Waller about them. He said the Court had a hand must be in the contrivance ; but that was unin it, and the king had given Fitzharris money likely : that the prisoner would insinuate that for it already, and would give him more if it the king hired him to do it, because the king had success.
gave him money, but that was out of charity; Mr. Cornish said, when he came from New. ) and therefore concluded, with a great many gate to the king, to give him an account in words, that an English Protestant jury of 10 what disposition he found the prisoner to make substantial men could not but find the prisoner a discovery ; the king said, he had had bim Guilty. often before him and his secretaries, and could The Court added, that though Dr. Oates make nothing of what he did discover ; that he said. Everard said it was a design of the Court, had for near three months acquainted the king and was to be put pn some Lords, and into he was in pursuit of a Plot, of a matter that some parliament-men's pockets ; yet Everard related much to his person and government, was there upon oath, and testified no such and that in as much as he made protestations of thing in the world ; and for the Impeachment zeal for his service, he did countenance and in the Lords House, they were not to take give him some money; that the king said he notice of it. came to him three months before he appeared at After which the jury informed the Court, the council-table.
that they heard there was a vote in the House Colonel Mansel said, that sir William Waller of Commons, that the prisoner should not be gave him an account of the business in the tried in any inferior Court: to which the chief presence of Mr. Hunt, and several others; justice said, that that vote could not alter the and said, that when he had acquainted the king law, and that the judges of that Court had conwith it, the king said he had done him the ference with all the other. judges concerning greatest piece of service that ever be had done that matter; and it was the opinion of all the him in his life, and gave him a great many judges of England, that that Court had a juristhanks : but he was no sooner gone, but two diction to try that man. After which, justice gentlemen told him, the king said he had Jones was of opinion, that if he were acquitted broken all his measures, and the king would on that indictment, it might be pleaded in bar have taken him off one way or other: and said to the impeachment ; and justice Raymond that the design was against the Protestant delivered his opinion to the same purpose. Lords, and Protestant Party. Mr. Hunt con- is strange that all the judges should be of that firmed the same thing ; and added, that he opinion ; yet before it was said, justice Dolben said the design was to contrive those papers into doubted. It is more strange, that if justice the hands of the people, and make them evi- Dolben was not of that opinion, he would hear dences of rebellion; and appealed to sir Wil- it said he was, and not contradict it. It is liam Waller, who was present, whether what most strange, that if the Judges of that Court be said was not true ? Mr. Bethel said, Eve- were of that opinion, they had not declared so, rard, before he had seen Bethel, or heard him in the arguing or giving judgment on the Plea; speak a word, put in an information of treason for that was the matter of it, being pleaded to against him, at the instigation of Bethel's the jurisdiction of the Court, that they had not mortal enemy; which information was power to try the prisoner for that crime, so groundless, that though it was three years
circumstanced. before, yet he never heard a word of it till the If the Plea bad been over-ruled as to the Priday before.
matter, noue would have been so inpertinent Mrs. Wall said, Fitzharris bad 2501. 2001. or as to go about to maintain the form of it. 150!. for bringing in the lord Howard of Es. Now, to say truth in behalf of the public, crick ; she added, that Fitzharris was looked and not on behalf of Fitzharris, the evidence upon to be a Roman Catholic, and upon that was unfairly summed up; for Fitzharris never account it was said to be dangerous to let him pretended Everard drew him in, or was to go near the king ; that he never was admitted trepan him : it is trae, he asked Everard what
the design of the pamphlet was, and whether The lord Conway said, that the king had he was or not put upon it to trepan others? declared in council, that Fitzharris had been Who answered, he was pot. But afterwards
to the king:
being too nearly pressed by the Attorney-Ge- tention to pretend to the king, that he had inneral, he said, Fitzharris told him the use of tercepted a libel privately dispersed; and to the libels were to disperse them he knew how ; make it more likely, it should be framed in the that they were to be drawn in the name of the Nonconformists names, to make his report the Nonconformists, and put upon them. And more credible (for of papists or church-men it Oates said, Everard said the libels were to be could not be believed), to get more money of printed, and sent abroad by the penny-post to the king ; and that matter, by all his questions the protesting Lords, and leading men of the to the witnesses, he most drove at : and that House of Commons, and the persons seized would at most be but a cheat. with them in their pockets ; which is all strong A more criminal, but less credible construcevidence that the libel was designed to trepan tion, is to believe he designed to disperse them, others; and that was all along the import of to excite and prevail upon the discontented to Fitzharris's questions, though cunningly not take up arms. answered by some of the witnesses, and as For what effect had that pamphlet, when it cunningly omitted in summing up the evidence. was (for it was afterwards) dispersed, upon the
It is true, the chief justice said, Everard minds of the people ? Or what effect could any said no such thing as Oates had said ; but why man of sense think it could have ? For though was not Everard, who was then present, asked, it was a virulent, yet it was as foolish a conwhether he said what Oates had given in evi- trived libel as ever was writ'; yet I own, if it .dence ?
bad been writ and dispersed with that design, There cannot be shewn any precedent where it had been high-treason within the statute of a witness contradicts, or says more or less than Edw.3. a witness that went before him, by the hear- But the most natural construction of the say of that witness ; but the first witness is worst design of it, was to trepan the parliaasked, what he says to it? Why was not sir ment-men, and make the libels evidences of a William Waller, who was also present, asked rebellious conspiracy: this Everard confesses what he said to the evidence of Mr. Mansel Fitzharris told him was the use to be made of and Mr. Hunt? And who it was that in them ; and Everard could not know the design formed sir William what the king said ? It of them, but by what Fitzharris told him. And was no way in proof, nor pretended by Fitz- Oates well explains what Everard meant by harris, that any person was concerned in that the words, in his evidence, put the libel on matter, but Everard and Fitzharris, though it the Nonconformists, by what Everard told was shrewdly suspected by the House of Com- him. mons; and no man that reads the trial, but But yet even that, though in itself the highbelieves there were many more concerned not est crime a man can be guilty of, next putting yet discovered : but the counsel might have it in execution, is but a conspiracy; which was brought in any judge of the Court by the head mildly punished in Lane and Knox their case, and shoulders to be a confederate, as well as though this exceeded that; that being a design sir William Waller, who was a Jack-a-lent of only against one person, this against many. their own setting up, in order to knock him Yet though this was of no higher crime by down again.
the law, as now established, than a misde:,. It was not pretended by Fitzharris that the meanor, it was fit for the legislative power to king gave him any money to frame that, or any have punished it in the manner it was punished; other libel ; there was evidence, that he had which yet the legislative power ought to resent gót money of the king for some little matter as an injury, for an inferior Court's spatching he was employed in, perhaps for bringing in the exercise of that power out of their hands, libels dispersed abroad, or discovering Plots. which only belongs to the supreme authority
Upon the whole evidence, it was plain that That this crime, upon construction of the eviFitzharris was an Irish papist ; it was plain dence taken in the best sense, is no treason ; he was the only visible contriver of the libel; though the libel should in all probability incite who were behind the curtain is not plain, and the subject to levy war, which it was not likely to know them, was the design of the impeach- to do, or if in fact it had been the cause of a ment.
rebellion, yet if it was not designed by the conIt was plain it was a devilish jesuitical design, triver to that purpose, it was not treason by as the Court and counsel, in summing up the the statute of Edward 3, or Charles 2, for in evidence, agreed it to be ; it was plain, that the last statute, it is designing to levy war, and the libel was such, that if dispersed with inten- in the statute of Edward 3, it is a strained contion to stir up the king's subjects against him, struction, to make designing to levy war, treait had been high-treason within the statute of son; yet none ever pretended to strain the sense the 13th of the king : but what the intention of of that statute farther than designing to do it. the contriving of the libel was, was not very If the ill effects the libel did, or might procertain ; and therefore, consequently, what the duce, made it treason, then sir Samuel Astrey crime of it was, was uncertain.
who read it in court at the trial, and the print To take the evidence all the ways, as to the that afterwards printed and published it, and design of the contriving of the libel, it is ca- sir William Waller who read it to Mr. Hurt pable of being interpreted ; the easiest con- and others, were guilty of Treason : for the struction is to say, he framed a libel with in- libel carried no venom or eberin with it the
more, for being framed by Fitzharris or Everard,' of the mischief, the bringing the Quo Warranto or for being published by either of them, than it against the city, whereby the credit of the city published by another person.
was lost,and many orphans starved,and more imThe difference is, Astrey read it aloud, as his poverished, beyond the possibility of recovery ? duty; the printer printed and published it for And it was yet heightened by the judgment gain; sir William Waller published it as a no- given in the highest case that ever came into Telty; and if Fitzbarris contrived it, to put it Westminster-ball, by two judges only, and that upon the nonconformist, or parliament-men, without one word of reason given at the proand not to stir up a rebellion, though it tended pouncing, according to the pattern of Fitzto all the ill consequences mentioned in his harris's case, and was the second mute judgindictment, yet it was not treason.
Did it not fright all honest men from But it wil be urged, how shall Fitzharris's being on criminal juries, when Wilmer was so intentions be proved? It was a question which illegally, prosecuted for not giving a verdict inade a mighty sputter in arguing the plea. against his conscience, by an homine replegiando How shall it be proved, that the impeachment and information ? And did not that make all was for the same treason for which the indict- merchants, who had transactions beyond sea, ment was ? But in the trial of Fitzharris, that afraid to send their servants thither, for fear question was fully cleared; for it was proved they might be laid by the heels till they fetched there, that the very libel then produced in court, them back again ? Did it not startle the Lords was the same libel read in the House of Com- and the leading men of the House of Commons, mons, upon which the impeachment was voted. mentioned so often in Fitzharris's trial, when
And to say truth nothing can be put in issue, the earl of Essex, lord Russel, colonel Sidney, bat is capable of trial : quo animo a thing is done Mr. Hampden and several others, were clapin all overt acts of a design, is one of the main ped up close prisoners in the Tower? Did it questions ;* or to speak in law phrase, whether not deter an honest man from appearing to witdone proditoriè or not, an adverb of great use ness the truth, when sir Patience Ward was and sense, though heretofore slighted; and convicted of perjury; Did it not provoke two utoder which, I believe, a great many persons great and noble families, when the lord Russel will be enforced to shelter themselves from be- and colonel Sidney were so illegally and uning punished by the law established.
handsomely dealt withal, as shall be hereafter No man will pretend that libel did any man declared ? Did it not provoke all the nation, mischief but the contriver; nor in probability except the clergy and soldiery, when all the could bave done, if not used to the purpose charters of England were seized, and not reEverard said to Oates. Yet other persons have granted, but at excessive rates, to the starving been guilty of as illegal acts, of worse conse- the poor, who should have been fed with the quences in prospect, and much worse in effect, money which went to purchase the new charand it did not amount to treason. I dare say, ters, and reserving the disposition of all the the allegation, that they disturbed the kingdom places of profit and power, within the neiv by their acts, and war caused to be moved corporations, to the king, but which indeed against the king, is true of them, and they are the confederates shared among themselves ? guilty of all the aggravations used in indict- Nay, the very election of burgesses, the freements of treason.
ness of which is the great fundamental of the To instance in some of many ; did it not government, was monopolized, and put into a make a mighty heart-burning in the city few hands. Did not the unreasonable fines and against the government, and raised great jea- cruel punishments inflicted, oppress many, loncies between the king and people, when the terrify all, and consequently made the governsheritis, North and Rich, were imposed on the ment odious to the subject : Did not the cruelcity? Did not the taking away the city's right ties acted in the West, enrage above a third of electing sheriffs, and the suspicions for what part of the nation ? Did not the turning out end it was done, besides the illegalities that fol- many of the soldiery and clergy, without any lowed ; if what sir Edward Herbert says in his reason; and for that purpose erecting arbitrary late Vindication, fol. 16. be law, as it hath an courts, and granting dispensations to persons aspect as if it were, that grand juries returned by law disabled, to enable them to have and by such as are sheriff's in fact, but not in right, enjoy the places and offices of such as were ilare illegal, and convictions on their present- legally turned out, and of all who should be in ments are illegal and void, give great distur- like manner turned out ? And was it not seen bance: and that opinion seems to be counte- what the consequences of those things would nanced by my lord Coke's third Instit. fol. 32. be, by all who did not wink their eyes, or in his comment on the 11th of Henry 4. and who were not blinded by the profit they consequently my lord Russel's, and other at- made of such illegal and cruel acts? Was tainders void ? Did it not add to the heart- not the king at last sensible, that the conseburning, the punishing those citizens as rioters quence of what is before recited would be what who were at Guildhall, innocently contesting afterwards happened? And did he not in less their right of electing? Was it not an increase than a month's time, when too late, throw
down all that Babel of confusion which had See the Trial of Woodburne, post, A. D. been so long a-building and did all in his 1721.
power, and would have done more if he could, to have set things as right as they were before though I doubt, not sincere protestants, as my the parliament of Oxon? for from thence the lord Russel said, words which were matter of extravagancies may be dated. But alas! more laughter to those who brought hiin to the mischief can be, and was done by weak brains, block. than the best wits can retrieve; those that But though neither Fitzharris's erime, taken were dead could not be brought to life; the in the last sense, nor the above crimes
, were restitution of the city's charters was but in shew high-treason by any statute; and the judges a relief. How shall all those defend themselves have not power to punish any other treasons : who hare acted under all the illegal sheriff's / yet in all times the parliaments bave practised, constituted, and not elected ? How shall those and it is necessarily incident to all supreme defend themselves, who have acted under offi- powers, in all governments, to enact or declare cers appointed by the new charters, which by extravagant crimes to be greater than by the the restitution are gone as if they never had established law they are declared to be, not by been? How shall sheriffs, gaolers, and other virtue of the clause in the statute of Edward the officers, who have had, or now have custody of third, whereby some have by mistake thought prisoners, and having not taken the test, trust that a power was reserved to the parliament to to the validity of a dispense, behave them- declare other matters treason than what is selves? Shall they continue to keep their pri- therein expressed: For admit that clause had soners in custody, or let them go? 'If the last, been admitted, there are none can doubt, but they are subject to actions of escape ; if the in point of power, the parliament could (how first, they are liable to false imprisonment. far in justice they might, is another question) These, and a great many more mischiefs, not have declared any other matter to be treason ; yet seen, are the natural results of these illegal and the words of that clause are very actions.
improper expressions, either to vest or serve I never reflect on these things, but I remem- a power in the parliament ; for the words ber Tully, in his Offices, lays down as a rule, are only prohibitory to the judges to adthat nothing is profitable but what is honest, judge any other matters treason tban those and gives many reasons for it; but nothing so expressed in the act, though they were someconvincing, as the examples he brings in pub- what like those expressed; and therefore lic and private matters. And though tbe em might be supposed treasons; and it is a sort of pire was vast, and he bore a great figure monition to oftenders, that they sbould not in it, and was very knowing, and was presume to be guilty of enormous crimes, upon well read in the Greek and Roman histories, presumption that they were not treasous within yet he was not able to bring a hundredth part of that act. For in the preamble it is said, because examples, to prove his position, as have been many other like cases of treason (which in sense in this little island in the space of eight years, are cases like treason declared in that act) may And the persons, by whose advice these things happen in tiine to come, which could not be were transacted, are the more inexcusable, if thought of or declared at that present; thereit be true what a certain nobleman (who bore fore if any such should happen before any a considerabie character in the two late kings justice, the justice should tarry, and not procouncil) once said to me was true. He was ceed to give judgment of treason on it, will it complaining that the king was misled by the should be judged in parliament treason or feadvice of his lawyers. I asked him whether lony. How well the judges, in late days, have the king pat bis judges and counsel upon doing observed this prohibitory law, let the world what was done, without considering whether it judge; and most certainly the parliament might was legal, as the common vogue was he did ; have declared in Fitzharris's case, as they may or that his lawyers first advised what to be in those other, that the crimes were treason, done, was law? 'lle answered me, on his ho- felony, misprision of treason, trespass, or what nour, the king's counsel at law first advised, other crime known in the law, and inflict what the king miglit do by law what he would have punishment they thought fit: and it is no indone, before he commanded them to do it. justice for the supreme power to punish a fact
Yet I agree, nove of the matters, though so in a higher manner than by law established, if inconvenient and grievous, are treason by the the fact in its nature is a crime, and the cirstatutes of Ed. 3. or Car. 9.
cumstances make it much inore heinous than For profit in some cases, revenge in others, ordinarily such crimes are. It was not injustice the endeavouring means to escape punishment, in the parliament of the second and third of and a natural propensity to cruelty in many, Philip and Mary to enact, that Smith and were the true ends driven at; and not the others, who were supposed to be guilty, as bringing their prince into the hatred of his sub- accessaries to a barbarous murder, and were jects, though that was a necessary consequent equally, if not more guilty than the principal, of alí recited, and of many more matters omit- to enact, as they did, that if they should be ted. And let Fitzharris's crime, and those re- found guilty as accessaries, they should not cited, be but examined, his was but a pecca- have their clergies, which at the time of comdillo to the least of those; though this was mitting the fact accessaries to murder were ale acted by an Irish papist, and these by English lowed to have. It is true, to declare or enact protestants, sons of the church of England as a fact, after it is committed, to be a crime, by law established, as they call themselves; which when committed was in itself none, such as transporting wool beyond sea, and the like, judges, have no law to direct them but their would be high injustice.
own wisdom; that their decision is law; and
if they determine wrong the subject has no apIt has already (in a Note to p. 236) been inti- peal but to Heaven. What then, my lords, mated, that this Case of Fitzharris presents ano- are all the generous efforts of our ancestors, ther proof of the unsettledness and irregularity are all those glorious contentions, by which of the · Lex et Consuetudo Parliamenti.' In they meant to secure to themselves, and to the dispute which oceurred in the year 1671, transmit to their posterity, a known law, a concerning the right of the Lords to alter certain rule of living, reduced to this concluMoney-Bills, they required to see the charter sion, that instead of the arbitrary power of a or contract by which they had divested them- king, we must submit to the arbitrary power selves of that right, and appropriated it to the of an House of Commons ?' If this be true, Commons with an exclusion of themselves;" what benefit do we derive from the exchange to which requisition the Commons prayed they Tyranny, my lords, is detestable in every might "answer by another question, Where shape; bat in none so formidable as when it is is that record or contract by which the Com- assumed and exercised by a pumber of tyrants. mons submitted that Judicature should be ap- But, my lords, this is not the fact, this is not propriated to the Lords in exclusion of them- the constitution ; we have a law of parliament, selves? Wherever your lordships find the last we have a code in which every honest man record, they will shew the first indorsed upon may find it. We bave Magna Charta, we the back of the same Roll.” It may be ques- have the Statute Book, and the Bill of Rights. tioned whether this conceit was worthy of in- If a case should arise, unknown to these great troduction into a solemn debate between two authorities, we have still that plain English great legislative bodies concerning some of reason left, which is the foundation of all our their most important rights: and, after all, the English jurisprudence. That reason tells us, jest possessed not the indispensible requisite, that every juslicial court, and every political novelty: it was merely a repetition of the old society, must be vested with those powers and jocular call upon the Pope to produce Con- privileges which are necessary for performing stantine's Grant of the Papal Patrimony. Mr. the orice to which they are appointed. It Hatsell's four volumes (hut especially the tells us also, that no court of justice can have 2nd and 3rd) of “ Precedents" abound in proofs a power inconsistent with or paramount to, the of the unsettledness and irregularity of this known laws of the land: that the people, when * Les et Consuetudo,' with respect even to they choose their representatives, never mean matters of most essential import, such, for in- to convey to them a power of invading the stances, as whether and to what extent the rights, or trampling upon the liberties of those House of Commons is a Court of Record (see whom they represent. What security would vol. 3, c. 4), whether the House of Comnions they have for their rights, if once they admitted can administer an oath (see vol. 2, c. 10). His that a court of judicature might determine observationis upon this last subject, he con- every question that came before it, not by any cludes with a very salutary and memorable re, known, positive law, but by the vague, unde flection : " I trust,” says he, “ that the House terminate, arbitrary rule, of what the noble of Commons having desisted' now for so great lord is pleased to call the wisdom of the court? a length of time from taking any even the most with respect to the decision of the courts of solemn examinations upon oath, it will never justice, I'am far from denying them their due be proposed to recur to that measure again, as weight and authority; yet placing them in the it is highly essential in this, as well as in every most respectable view, I still consider them, other part of their conduct, that the House of not as law, but as an evidence of the law, and Commons should not appear desirous of ex- before they can arrive even at that degree of ceeling the limits of their acknowledged au. authority, it must appear, that they are founded thority; or of going beyond those bounds which in, and confirmed by reason : that they are are set to their power by the law and consti- supported by precedents taken from good and tution of the country.”
moderate times; that they do not contradict The first earl of Chatham very indignantly any positive law; that they are submitted to repelled the doctrine of the indefiniteness of without reluctance, by the people; that they what is called Privilege of Parliament. In re are unquestioned by the legislature (which is plying to a Speech of the first earl of Mans- in my judgment, is by far the most important;
equivalent to a tacit confirmation); and what, field, he said:
that they do not violate the spirit of the con"The principles of the English laws are stitution. My lords, this is not a vague or sufficiently clear: they are founded in reason, loose expression : we all know what the conw are the master-piece of the human under- stitution is; we all know, that the first prin, standing, but it is in the text that I would look ciple of it is, that the subject shall not be go. for a direction to my judgment, not in the com- verned by the arbitrium of any one man, or mentaries of modern professors. The noble body of men (less than the whole legislature). bard assures us, that he knows not in what but by certain laws, to which be has virtually Code the law of parliament is to be found; that given his consent, which are open to him to exs
Commons, when they act as mine, and not beyond his ability to understand."