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name of the Nonconformists, and to be put and fathered upon them. This was the sum of Everard's evidence.

Mr. Smith proved Fitzharris's giving instructions to Everard; and sir William Waller and others proved the libel, and the discourse about gaining Flanders and England: other witnesses were examined to prove Fitzharris's hand. For the prisoner, Dr. Oates said, Everard told him the libel was to be printed, and to be sent about by the penny-post to the protesting lords, and leading men of the House of Commons, who were to be taken up as soon as they had it, and searched, and to have it found about them. He said the Court had a hand in it, and the king had given Fitzharris money for it already, and would give him more if it

had success.

Mr. Cornish said, when he came from New. gate to the king, to give him an account in what disposition he found the prisoner to make a discovery; the king said, he had had him often before him and his secretaries, and could make nothing of what he did discover; that he had for near three months acquainted the king he was in pursuit of a Plot, of a matter that related much to his person and government, and that in as much as he made protestations of zeal for his service, he did countenance and give him some money; that the king said he came to him three months before he appeared at the council-table.

Colonel Mansel said, that sir William Waller gave him an account of the business in the presence of Mr. Hunt, and several others; and said, that when he had acquainted the king with it, the king said he had done him the greatest piece of service that ever he had done him in his life, and gave him a great many thanks: but he was no sooner gone, but two gentlemen told him, the king said he had broken all his measures, and the king would have taken him off one way or other: and said that the design was against the Protestant Lords, and Protestant Party. Mr. Hunt confirmed the same thing; and added, that he said the design was to contrive those papers into the hands of the people, and make them evidences of rebellion; and appealed to sir William Waller, who was present, whether what be said was not true? Mr. Bethel said, Everard, before he had seen Bethel, or heard him speak a word, put in an information of treason against him, at the instigation of Bethel's mortal enemy; which information was groundless, that though it was three years before, yet he never heard a word of it till the Friday before.

SO

Mrs. Wall said, Fitzharris had 2501. 2001. or 150. for bringing in the lord Howard of Estrick; she added, that Fitzharris was looked upon to be a Roman Catholic, and upon that account it was said to be dangerous to let him go near the king; that he never was admitted to the king.

The lord Conway said, that the king had declared in council, that Fitzharris had been

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employed by him in some trifling businesses, and that he had got money of him; but added, as of his own knowledge, that the king never spoke with him till after he was taken, which was the 28th February last.

All the Evidence being over, it was summed up by the counsel, That upon all the circumstances of it, Fitzharris was the contriver and director of the libel; that it was a treasonable libel, and a jesuitical design; that the excuse he made, as if Everard drew him into it, or trepanned him into it, was in vain, nothing of that being proved. That Everard could do nothing alone, and therefore sir William Waller must be in the contrivance; but that was unlikely that the prisoner would insinuate that the king hired him to do it, because the king gave him money, but that was out of charity; and therefore concluded, with a great many words, that an English Protestant jury of 12 substantial men could not but find the prisoner Guilty.

The Court added, that though Dr. Oates said. Everard said it was a design of the Court, and was to be put on some Lords, and into some parliament-men's pockets; yet Everard was there upon oath, and testified no such thing in the world; and for the Impeachment in the Lords House, they were not to take notice of it.

After which the jury informed the Court, that they heard there was a vote in the House of Commons, that the prisoner should not be tried in any inferior Court: to which the chief justice said, that that vote could not alter the law, and that the judges of that Court had conference with all the other judges concerning that matter; and it was the opinion of all the judges of England, that that Court had a jurisdiction to try that man. After which, justice Jones was of opinion, that if he were acquitted on that indictment, it might be pleaded in bar to the impeachment; and justice Raymond delivered his opinion to the same purpose. It is strange that all the judges should be of that opinion; yet before it was said, justice Dolben doubted. It is more strange, that if justice Dolben was not of that opinion, he would hear it said he was, and not contradict it. It is most strange, that if the Judges of that Court were of that opinion, they had not declared so, in the arguing or giving judgment on the Plea; for that was the matter of it, being pleaded to the jurisdiction of the Court, that they had not power to try the prisoner for that crime, so circumstanced.

If the Plea had been over-ruled as to the matter, none would have been so impertinent as to go about to maintain the form of it.

Now, to say truth in behalf of the public, and not on behalf of Fitzharris, the evidence was unfairly summed up; for Fitzharris never pretended Everard drew him in, or was to trepan him: it is true, he asked Everard what the design of the pamphlet was, and whether he was or not put upon it to trepan others? Who answered, he was not. But afterwards

being too nearly pressed by the Attorney-General, he said, Fitzharris told him the use of the libels were to disperse them he knew how; that they were to be drawn in the name of the Nonconformists, and put upon them. And Oates said, Everard said the libels were to be printed, and sent abroad by the penny-post to the protesting Lords, and leading men of the House of Commons, and the persons seized with them in their pockets; which is all strong evidence that the libel was designed to trepan others; and that was all along the import of Fitzharris's questions, though cunningly not answered by some of the witnesses, and as cunningly omitted in summing up the evidence. It is true, the chief justice said, Everard said no such thing as Oates had said; but why was not Everard, who was then present, asked, whether he said what Oates had given in evidence?

There cannot be shewn any precedent where a witness contradicts, or says more or less than a witness that went before him, by the hearsay of that witness; but the first witness is asked, what he says to it? Why was not sir William Waller, who was also present, asked what he said to the evidence of Mr. Mansel and Mr. Hunt? And who it was that informed sir William what the king said? It was no way in proof, nor pretended by Fitzharris, that any person was concerned in that matter, but Everard and Fitzharris, though it was shrewdly suspected by the House of Commons; and no man that reads the trial, but believes there were many more concerned not yet discovered: but the counsel might have brought in any judge of the Court by the head and shoulders to be a confederate, as well as sir William Wailer, who was a Jack-a-lent of their own setting up, in order to knock him down again.

It was not pretended by Fitzharris that the king gave him any money to frame that, or any other libel; there was evidence, that he had got money of the king for some little matter he was employed in, perhaps for bringing in Jibels dispersed abroad, or discovering Plots.

Upon the whole evidence, it was plain that Fitzharris was an Irish papist; it was plain he was the only visible contriver of the libel; who were behind the curtain is not plain, and to know them, was the design of the impeach

⚫ment.

It was plain it was a devilish jesuitical design, as the Court and counsel, in summing up the evidence, agreed it to be; it was plain, that the libel was such, that if dispersed with intention to stir up the king's subjects against him, it had been high-treason within the statute of the 13th of the king: but what the intention of the contriving of the libel was, was not very certain; and therefore, consequently, what the crime of it was, was uncertain.

To take the evidence all the ways, as to the design of the contriving of the libel, it is capable of being interpreted; the easiest construction is to say, he framed a libel with in

tention to pretend to the king, that he had intercepted a libel privately dispersed; and to make it more likely, it should be framed in the Nonconformists names, to make his report the more credible (for of papists or church-men it could not be believed), to get more money of the king; and that matter, by all his questions to the witnesses, he most drove at: and that would at most be but a cheat.

A more criminal, but less credible construction, is to believe he designed to disperse them, to excite and prevail upon the discontented to take up arms.

For what effect had that pamphlet, when it was (for it was afterwards) dispersed, upon the minds of the people? Or what effect could any man of sense think it could have? For though it was a virulent, yet it was as foolish a contrived libel as ever was writ; yet I own, if it had been writ and dispersed with that design, it had been high-treason within the statute of Edw. 3.

But the most natural construction of the worst design of it, was to trepan the parliament-men, and make the libels evidences of a rebellious conspiracy: this Everard confesses Fitzharris told him was the use to be made of them; and Everard could not know the design of them, but by what Fitzharris told him. And Oates well explains what Everard meant by the words, in his evidence, put the libel on the Nonconformists,' by what Everard told him.

But yet even that, though in itself the highest crime a man can be guilty of, next putting it in execution, is but a conspiracy; which was mildly punished in Lane and Knox their case, though this exceeded that; that being a design only against one person, this against many.

Yet though this was of no higher crime by the law, as now established, than a misdemeanor, it was fit for the legislative power to have punished it in the manner it was punished; which yet the legislative power ought to resent as an injury, for an inferior Court's spatching the exercise of that power out of their hands, which only belongs to the supreme authority. That this crime, upon construction of the evidence taken in the best sense, is no treason; though the libel should in all probability incite the subject to levy war, which it was not likely to do, or if in fact it had been the cause of a rebellion, yet if it was not designed by the contriver to that purpose, it was not treason by the statute of Edward 3, or Charles 2, for in the last statute, it is designing to levy war, and in the statute of Edward 3, it is a strained construction, to make designing to levy war, treason; yet none ever pretended to strain the sense of that statute farther than designing to do it.

If the ill effects the libel did, or might produce, made it treason, then sir Samuel Astrey who read it in court at the trial, and the printer that afterwards printed and published it, and sir William Waller who read it to Mr. Hunt, and others, were guilty of Treason; for the libel carried no venom or charm with it the

more, for being framed by Fitzharris or Everard, or for being published by either of them, than if published by another person.

The difference is, Ástrey read it aloud, as his duty; the printer printed and published it for gain; sir William Waller published it as a novelty; and if Fitzharris contrived it, to put it upon the nonconformist, or parliament-men, and not to stir up a rebellion, though it tended to all the ill consequences mentioned in his indictment, yet it was not treason.

But it wil be urged, how shall Fitzharris's intentions be proved? It was a question which inade a mighty sputter in arguing the plea. How shall it be proved, that the impeachment was for the same treason for which the indictment was? But in the trial of Fitzharris, that question was fully cleared; for it was proved there, that the very libel then produced in court, was the same libel read in the House of Commons, upon which the impeachment was voted. And to say truth nothing can be put in issue, but is capable of trial: quo animo a thing is done in all overt acts of a design, is one of the main questions; or to speak in law phrase, whether done proditoriè or not, an adverb of great use and sense, though heretofore slighted; and under which, I believe, a great many persons will be enforced to shelter themselves from being punished by the law established.

of the mischief, the bringing the Quo Warranto against the city, whereby the credit of the city was lost, and many orphans starved, and more impoverished, beyond the possibility of recovery? And it was yet heightened by the judgment given in the highest case that ever came into Westminster-hall, by two judges only, and that without one word of reason given at the pronouncing, according to the pattern of Fitzharris's case, and was the second mute judgment. Did it not fright all honest men from being on criminal juries, when Wilmer was so illegally prosecuted for not giving a verdict against his conscience, by an homine replegiando and information? And did not that make all merchants, who had transactions beyond sea, afraid to send their servants thither, for fear they might be laid by the heels till they fetched them back again? Did it not startle the Lords and the leading men of the House of Commons, mentioned so often in Fitzharris's trial, when the earl of Essex, lord Russel, colonel Sidney, Mr. Hampden and several others, were clapped up close prisoners in the Tower? Did it not deter an honest man from appearing to witness the truth, when sir Patience Ward was convicted of perjury; Did it not provoke two great and noble families, when the lord Russel and colonel Sidney were so illegally and unhandsomely 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 have 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 new 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, lousies between the king and people, when the terrify all, and consequently made the governsheriffs, 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 sheriffs in fact, but not in right, enjoy the places and offices of such as were il are illegal, and convictions on their present-legally turned out, and of all who should be in ments are illegal and void, give great disturbance: and that opinion seems to be countenanced by my lord Coke's third Instit. fol. 32. in his comment on the 11th of Henry 4. and consequently my lord Russel's, and other attainders void? Did it not add to the heartburning, the punishing those citizens as rioters who were at Guildhall, innocently contesting their right of electing? Was it not an increase

1721.

See the Trial of Woodburne, post, a. D.

like manner turned out? And was it not seen what the consequences of those things would be, by all who did not wink their eyes, or who were not blinded by the profit they made of such illegal and cruel acts? Was not the king at last sensible, that the consequence of what is before recited would be what afterwards happened? And did he not in less than a month's time, when too late, throw down all that Babel of confusion which had been so long a-building? and did all in his power, and would have done more if he could,

to have set things as right as they were before the parliament of Oxon? for from thence the extravagancies may be dated. But alas! more mischief can be, and was done by weak brains, than the best wits can retrieve; those that were dead could not be brought to life; the restitution of the city's charters was but in shew a relief. How shall all those defend themselves who have acted under all the illegal sheriff's constituted, and not elected? How shall those defend themselves, who have acted under officers appointed by the new charters, which by the restitution are gone as if they never had been? How shall sheriffs, gaolers, and other officers, who have had, or now have custody of prisoners, and having not taken the test, trust to the validity of a dispense, behave themselves? Shall they continue to keep their prisoners in custody, or let them go? If the last, they are subject to actions of escape; if the first, they are liable to false imprisonment. These, and a great many more mischiefs, not yet seen, are the natural results of these illegal

actions.

I never reflect on these things, but I remember Tully, in his Offices, lays down as a rule, that nothing is profitable but what is honest, and gives many reasons for it; but nothing so convincing, as the examples he brings in public and private matters. And though the empire was vast, and he bore a great figure in it, and was very knowing, and was well read in the Greek and Roman histories, yet he was not able to bring a hundredth part of examples, to prove his position, as have been in this little island in the space of eight years. And the persons, by whose advice these things were transacted, are the more inexcusable, if it be true what a certain nobleman (who bore a considerable character in the two late kings council) once said to me was true. He was complaining that the king was misled by the advice of his lawyers. I asked him whether the king put his judges and counsel upon doing what was done, without considering whether it was legal, as the common vogue was he did; or that his lawyers first advised what to be done, was law? He answered me, on his honour, the king's counsel at law first advised, the king might do by law what he would have done, before he commanded them to do it.

Yet I agree, none of the matters, though so inconvenient and grievous, are treason by the statutes of Ed. 3. or Car. 2.

For profit in some cases, revenge in others, the endeavouring means to escape punishment, and a natural propensity to cruelty in many, were the true ends driven at; and not the bringing their prince into the hatred of his subjects, though that was a necessary consequent of all recited, and of many more matters omitted. And let Fitzharris's crime, and those recited, be but examined, his was but a peccadillo to the least of those; though this was acted by an Irish papist, and these by English protestants, sons of the church of England as by law established, as they call themselves;

though I doubt, not sincere protestants, as my lord Russel said, words which were matter of laughter to those who brought him to the block.

But though neither Fitzharris's crime, taken in the last sense, nor the above crimes, were high-treason by any statute; and the judges have not power to punish any other treasons: yet in all times the parliaments have practised, and it is necessarily incident to all supreme powers, in all governments, to enact or declare extravagant crimes to be greater than by the established law they are declared to be, not by virtue of the clause in the statute of Edward the third, whereby some have by mistake thought that a power was reserved to the parliament to declare other matters treason than what is therein expressed: For admit that clause had been admitted, there are none can doubt, but in point of power, the parliament could (how far in justice they might, is another question) have declared any other matter to be treason; and the words of that clause are very improper expressions, either to vest or serve a power in the parliament; for the words are only prohibitory to the judges to adjudge any other matters treason than those expressed in the act, though they were somewhat like those expressed; and therefore might be supposed treasons; and it is a sort of monition to offenders, that they should not presume to be guilty of enormous crimes, upon presumption that they were not treasons within that act. For in the preamble it is said, because many other like cases of treason (which in sense are cases like treason declared in that act) may happen in time to come, which could not be thought of or declared at that present; therefore if any such should happen before any justice, the justice should tarry, and not proceed to give judgment of treason on it, ull it should be judged in parliament treason or felony. How well the judges, in late days, have observed this prohibitory law, let the world judge; and most certainly the parliament might have declared in Fitzharris's case, as they may in those other, that the crimes were treason, felony, misprision of treason, trespass, or what other crime known in the law, and inflict what punishment they thought fit: and it is no injustice for the supreme power to punish a fact in a higher manner than by law established, if the fact in its nature is a crime, and the cir cumstances make it much inore heinous than ordinarily such crimes are. It was not injustice in the parliament of the second and third of Philip and Mary to enact, that Smith and others, who were supposed to be guilty, as accessaries to a barbarous murder, and were equally, if not more guilty than the principal, to enact, as they did, that if they should be found guilty as accessaries, they should not have their clergies, which at the time of committing the fact accessaries to murder were allowed to have. It is true, to declare or enact a fact, after it is committed, to be a crime, 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 occurred 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; but in none so formidable as when it is is that record or contract by which the Com- assumed and exercised by a number 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 have 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 judicial 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 office to which they are appointed. It Hatsell's four volumes (but 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 'Lex 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 Commons 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 observations 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, undeflection: "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 ceeding the limits of their acknowledged authority; or of going beyond those bounds which are set to their power by the law and constitution of the country."

authority, it must appear, that they are founded in, and confirmed by reason: that they are supported by precedents taken from good and 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,

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"The principles of the English laws are sufficiently clear: they are founded in reason, and are the master-piece of the human understanding; but it is in the text that I would look for a direction to my judgment, not in the commentaries of modern professors. The noble lord assures us, that he knows not in what code the Inw of parliament is to be found; that Commons, when they act as

that they do not violate the spirit, of the constitution. My lords, this is not a vague or loose expression: we all know what the constitution is; we all know, that the first prin, ciple of it is, that the subject shall not be governed by the arbitrium of any one man, or body of men (less than the whole legislature), but by certain laws, to which he has virtually given his consent, which are open to him to examine, and not beyond his ability to understand."

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