of the court therein; which Mr. Justice Jones alone thought not fit to give, but ordered them to attend next day when the court was full. And accordingly on Thursday, April 28, the said grand jury came to the bar, and Mr. Michael Godfrey (brother to sir Edmundbury Godfrey), who was their foreman, addressed himself thus to the Court: Mr. Godfrey. My lord, I have an humble request to make to the Court on the behalf of myself, and another on the behalf of the grand jury for the county of Middlesex, of which I am foreman. This gentleman, Mr. Ward, I did beg of when I was sworn, to chuse another man that was fitter for the service, as being more experienced, but he would not; and I beg your pardon, if I should commit any failure for want of experience. But I desire, before we proceed upon this Indictment before us, that this same Fitzharris may be examined about my brother's death, of which I suppose he may know much, because in the printed Narrative he does speak of one De Puy, who was a very active man about that murder; and how ill a man soever he hath been, we do hope he hath so much truth in him, as to tell what he knows of that horrid murder. Therefore I pray your lordship, that you would grant an Habeas Corpus to fetch him before your lordship to be examined upon that point before we do proceed; that is all as to myself. My lord, as to the Jury, we do all of us humbly present this Paper, and desire it may be read in Court. L. C. Justice. (Sir Francis Pemberton.) What is it? a petition? no more to Fitzharris: but Hawkins the minister of the Tower took him into his management; and prevailed with him not only to deny all his former discovery, but to lay it on Clayton, Treby, and the sheriffs, as a subornation of theirs, though it was evident that was impossible to be true. Yet at the same time he writ letters to his wife, who was not then admitted to him, which I saw and read, in which he told her, how he was practised upon with the hopes of life. He charged her to swear falsely against none: one of these was writ that very morning in which he suffered and yet before he was led out he signed a new paper containing the former charge of subornation, and put it in Hawkins's hands. And at Ty burn he referred all he had to say to that paper, which was immediately published: but the falsehood of it was so very notorious, that it shewed what a sort of man Hawkins was: yet he was soon after rewarded for this with the deanry of Chichester. But when the court heard what letters Fitzharris had writ to his wife they were confounded: and all further discourse about him was stifled. But the court practised on her by the promise of a pension so far, that she delivered up her husband's letters to them. But so many had seen them before that, that this base practice turned much to the reproach of all their proceedings," 1 Burnet, 497, 502, 503. Cl. of Crown. It is not subscribed by any body. Jurors. But we do all own it, my lord. L. C. J. What is it? Read it. Cl. of Crown. "We Michael Godfrey, &c. being sworn to serve in the grand inquest for the hundreds of Edmonton and Gore, in this county of Middlesex, &c. and being yesterday sent for into the Court of King's-bench, by a messenger from the said Court, to be present at the swearing of several witnesses produced ou the behalf of our sovereign lord the king, to prove the truth of some Indictments, then in the hands of the Clerk of the Crown; and observing, that sir William Waller, Smith, and others, were sworn to give evidence against Edward Fitzharris, now prisoner in the Tower, who in the late parliament at Oxford, was im peached by the honourable House of Commons, in the name of themselves, and of all the Com mons of England; of which, we the said Mi chael Godfrey, &c. are part, and as jurymen, be his judges also. We therefore humbly de sire the opinion of this honourable Court, whether it be lawful and safe for us, the said Godfrey, &c. (in case an Indictment of the said Fitzharris should be brought before us) to proceed to examine any witnesses in reference to the said Indictment, or any way to meddle with it, or proceed upon it, notwithstanding the said Impeachment, and Votes pursuant to it by the said honourable House of Commons? And this being a great point in law, and of so great a consequence for us to undertake in a point of right not settled by conference, and remaining yet undetermined in the high Court of Parlia ment.-We therefore humbly desire the opinion of this Court upon the whole matter, Whether legally and safely we may proceed to find the indictment of Fitzharris, or no." Mr. Godfrey. My lord, we do humbly desire the resolution of the Court in this matter, as a thing of weight; for we are between two millstones, as we apprehend it, and shall be ground between them. L. C. J. Look you, gentlemen of the jury, we do not apprehend so. Attorney General. (Sir Robert Sawyer.) My lord, be pleased to spare me one word: this Indictment was tendered to this grand jury yes terday, and this gentleman was against accepting the bill, till he had your judgment, and so were two more; but for all that, the body of them carried it, (all but these three) to hear the Evidence: whereupon Mr. Solicitor and myself did go on upon the evidence, and spent some time in opening it to them, and it was all given to them; and truly the gentlemen did seem to be abundantly satisfied what an horrid villainy it was, and we did think they would have found the bill; but it seems they have prevailed to put these scruples into the others heads. L. C. J. Look you, Mr. Attorney, we will now enquire into that. Gentlemen of the jury, you seem dissatisfied in this matter, and desire the opinion of the Court in it, whether you the s may you my death of sir Edmundbury Godfrey. The Court granted the writ, and said, he should be arraigned upon the indictment against him, and then they would examine him. brought with a strong guard to the King'sSaturday, April 30, Edward Fitzharris was bench Court. lawfully proceed to find this indictment or not? We did hear yesterday of some scruples made to brother Jones when you were sworn, and he sat in Court to give you the charge, which he thought not fit then to answer, but left it till to-day. Truly we would have all things fairly and clearly done, that we may understand how we go all along in this matter. Your scruple is this: Here was, you say, an Serj. Stringer. Your lordship hath been Impeachment offered against Fitzharris by pleased to grant an Habeas Corpus for Fitzthe Commons to the Lords, and that Impeach-harris, and he is brought up, and attends here. ment was of high-treason, which was not reL. C. J. We will send for Mr. Attorney, ceived, and thereupon there was a Vote of the brother. House of Commons that he should not be tried by any other inferior Court: you desire now to know whether you may enquire concerning this treason, notwithstanding these things that have passed thus? Mr. Godfrey. Yes, my lord. L. C. J. We are very ready and willing to satisfy any of the king's subjects in any matters in judgment before us, that they may see there shall be nothing but fair proceedings in all cases: we do tell you it is our opinion, that notwithstanding any thing of this matter that you suggest in the case before you, it is fit for you to enquire upon the Indictment; and you are bound to enquire by virtue of your oaths, if an indictment be exhibited to you: you cannot, nor ought to take any notice of any such votes of the House of Commons afterwards, if any such there were, for they will not excuse you (who are sworn to enquire of the matters given you in charge), in case you do not your duty; and therefore if you have evidence enough given you, to satisfy you that the Indictment is true, you are to find it. And likewise we ought to proceed according to justice, in cases that are brought before us. Neither you nor we can take notice of these things, in case there be any such as you suggest; nor will they excuse us before God or man for the breach of our paths, if we should do the contrary. And this we declare to you, not only as our opinions, but as the opinion of all the judges of England. For when we did hear there was a scruple made by you the gentlemen of the jury, beCause we would make the way fair and clear, all the judges did assemble to debate the matter for your satisfaction; not that we were dissatisfied at all in it ourselves, but that it might appear to you and the kingdom, that there is nothing but fairness used in this case, as in all others; and all the judges, nem. con. were all of opinion, that you are not to take notice of any of these things; but if the Indictment be exhibited, and you have evidence enough, you ought to find it. This we have endeavoured for your satisfaction, to make your way clear. Jurors. We humbly thank your lordship. [Then the jury went away, and afterwards found the bill.] On Friday, April 29, 1681, sir Tho. Stringer, the king's serjeant at law, moved for an Habeas Corpus, to bring up the body of Edward Fitzharris, to be examined by the Court about the Serj. Jefferies. I beg this of your lordship, that you will be pleased to stay a little; I know not how he comes to be brought up here; Mr. Attorney, it seems, says, he knows nothing of it. L. C. J. Well, well; send for Mr. Attor ney, brother, and hear what he says. in, the prisoner was brought to the bar. Serj. Stringer. My lord, I would humbly Serj. Stringer. My lord, we would have him examined concerning sir Edmundbury Godfrey's death. L. C. J. What matters it? That may be done after as well as before. Cl. of Cr. Edward Fitzharris, hold up thy hand. Fitzharris. My lord, I have been a close prisoner these ten weeks, and have not had the liberty to see any one in the world: I desire I may have liberty to see my friends, and speak with them, before I do answer to any thing. Mrs. Fitzharris. My dear, plead to the juris diction of the Court; here is a plea drawn by counsel for you. L. C. J. You had best consider well what you have to do. Fitzh. My lord, I desire this Paper may be read by the clerks. Justice Jones. No, no: that cannot be till you have answered to your indictment. Cl. of Cr. Pull off your glove, and hold up your hand. Fitzh. My lord, I desire leave to plead to the jurisdiction of the Court. L. C. J. You shall have it. Fitzh. I desire this plea may be allowed. Justice Dolben. Hear your Indictment first, and plead afterwards. L. C. J. Look you, Mr. Fitzharris, let us thus far direct you: your holding up of your hand, and hearing the Indictment read, will not hinder you from any manner of plea which you may have to make afterwards; but you can plead nothing before. Cl. of Cr. Pull off your glove, and hold up your hand (which he did). And then the Clerks of the Crown read the substance of his Indictment to him in English. And then speaking to him, said, How sayest thou, Edw. Fitzharris? Art thou Guilty of this high-trea son whereof thou standest indicted, and hast been now arraigned, or Not Guilty? Fitzh. My lord, I offer this Plea to be read first, before I answer. L. C. J. That plea? Take his plea: let us see what it is. We take it to read it now. Justice Jones. Not to allow it. L. C. J. Only to see what it is. Cl. of the Crown reads, Et præd. Edwardus Fitzharris in propria · persona sua venit et dict. quod ipse ad Indict< ament. præd. modo versus eum per jurator. præd. in forma præd. compert. respondere 'compelli non debet, quia dicit quod ante In'dictament. præd. per jurator. præd. in forma præd. compert. scil. ad parliam. Dom. Regis nunc inchoat. et tent. apud Oxon. in Čom. Oxon. 21 Die Martii, Anno Reg. Dom. Caroli Secundi nunc Regis Anglia, &c. Tricesimo Tertio, ipse idem Edwardus Fitzharris per Milites, Cives, et Burgens. ad ⚫idem Parliament. ad tunc et ibid. convocat. et 'assemblat. de et pro præd. prodition. Criminibus et Offens. unde ipse idem Edwardus Fitzharris per Indictament. præd. modo indictat. • existit secundum Legem et Consuetudinem Parliamenti accusat. et impetit. fuit coram Magnatibus et Proceribus hujus Regni An'gliæ in eodem Parliamento per Summonition. ipsius Dom. Regis ad tunc et ibid. assemblat. Quodq; impetitio præd. in plenis suis robore et effectu adhuc remanet, sicut per record. ⚫ inde in Cur. Parliament. præd. remanen. ple⚫nius liquet et apparet. Et idem Edwardus <Fitzharris ulterius dicit, quod si quis in aliquo Parliamento Dom. Regis hujus Regni Angliæ ⚫ de aliquibus Proditionibus, Criminibus, et Offensis, per Milites, Cives, et Burgens. ad hujusmodi Parliament. convocat. et assemblat. in hujusmodi Parliament. accusat. et impetit. fuit coram Magnatibus et Proceribus hujus Regni Angliæ in eodem Parliament. per Summonit. ipsius Dom. Regis assemblat. tunc hujusmodi • Prodition. Crimina et Offensa de et pro quibus ⚫ hujusmodi persona in hujusmodi Parliament accusat. et impetit. fuit in Parliament. Dom. Reg. hujus Regni Angliæ audiri, triari, et terminari debeant, et semper hactenus consueverunt, et de jure debuerunt, et non alibi in aliqua Curia infer. quam in Parliament. Et hoc idem Edwardus Fitzharris parat. est ve✦rificare, unde non intendit quod Dominus Rex nunc velit in Cur. nunc hic de et pro Prodition. Criminibus, et Offens. præd. responderi, et petit. judic. si ipse ad Indictament. præd. per jurator.præd. in forma præd. compert. ulterius respondere compelli debeat, &c. Cum hoc quod præed Edwardus Fitzharris verificare vult, quod Proditio, Crimina, et Offens. praed. in Indictament. præed. per jurator. præd. in forma præd. compert. specificat. et mentionat. et pro quibus ipse idem Edwardus Fitzharris ⚫ per Indictament. ill. modo indictat. existit, et proditio, crimina et offens. pro quibus ipse præd. Edwardus Fitzharris in Parliament. præd. in forma præd. accusat. et impetit. fuit, 'et existit, sunt unum et eadem Proditio, Crimi'na et Offens. et non al. neque diversa, quodq; 'impetit. præd. adhuc in plenis suis robore, vi'gore, et effectu remanet." L. C. J. Look you, Mr. Fitzharris, as for this pleading here, we use not to receive such pleading as this without a counsel's hand to it. Fitzh. I desire your lordship to assign me counsel. L. C. J. Who would you have assigned counsel? Fitzh. Sir William Jones, sir Francis, Winnington, sir George Treby, Mr. Williams, Mr. Pollexfen, Mr. Wallop, and Mr. Smith. L. C. J. Here are a great many you name; we will not enjoin any counsel to serve you farther than they are willing themselves. As for sir William Jones, one of them you desire, he does not practise now in Westminster-hall, and therefore we cannot assign you him unless he please. Fitzh. Then I desire sir Francis Winnington, Mr. Williams, Mr. Pollexfen, Mr. Wallop. L. C. J. Let them be assigned of counsel for him. We do assign you them for counsel. And now, look you, Sir, you had best consider how you plead this matter. You will do well to think of it, lest it be more fatal to you than you expect; therefore we will give you time to plead the matter you rest upon, let it be what it will: we will give you time to have advice upon it, and you shall be brought hither again on Tuesday morning by rule. And in the mean time things shall stand as they do; Mr. Attorney will consider upon the putting in of your plea, what is fit to be done upon it. Fitzh. My lord, I humbly desire the liberty to see my wife and friends in the mean time. L. C. J. Mr. Attorney, why may not he see his wife, so it be done in the presence of some person entrusted by the lieutenant, to see that nothing be done that is prejudicial to the king? Att. Gen. I cannot oppose it, my Lord. Fitzh. I desire my counsel may come to me. L. C. J. Mr. Fitzharris, we will admit counsel to come to you, or else it will do you no good to assign them; all we can do shall be done. Att. Gen. My Lord, with submission, I conceive you will not allow any body to come to him, to be alone with him; that would be the way to prevent the discovery of the practices he is accused of: I hope, if your lordship shew him favour, you will do the king justice. Fitzh. My Lord, I beg that any of those that have been named may come to me. L. C. J. Yes, these four. And Mr. Attorney, they are gentlemen of fair credit and reputation in the world; we have no suspicion that they will do any thing unfairly: what we can reasonably do for any man in his condition, we must do. Att. Gen. My Lord, I am not against that, but I would have all done safely and securely for the king. Fitsh. My Lord, I have one thing more to beg; the time your lordships have set is so soon, that they cannot come to me perhaps. L.C. J. It is long enough, Mr. Fitzharris. Filth. If I cannot get them to come to me in that time, what shall I do? L.C. J. You must do what you can; we cannot enjoin them to come to you. Att. Gen. This motion of his, I fear, is designed to put off his trial. L.C. J. It shall not, Mr. Attorney. It is true it is a busy time, the middle of the term; but they will sure find time to dispatch this business within the time we have allotted. On the other side, some time they must have to consider of it: Ido therefore tell him, it may be fatal and preremptory to him for aught I know. Indeed if we would insist upon it, we might compel him to be ready presently, but that we will not in this case. Fitzh. Pray, my lord, give me till Thursday, if you please. LC.J. I know it is time enough for counsel to draw up a plea between this and Tuesday. Fitzh. To-morrow is Sunday, my lord, and they cannot come to me then; so I shall have but one day. L. C. J. Mr. Fitzharris, it is time enough; we must not waste the term; for as we would shew you all the favour we can in equity and justice, so we must not deny the king justice neither. And you hear Mr. Attorney say, that these things (if they should delay the business too long) would be prejudicial to much of the king's business. It may be, that this dilatory plea may spend so much time of the term, that we cannot try it; and therefore if we do give a just favour, you must not grow upon us. Att. Gen. Mr. Fitzharris knows this plea hath been well advised on: There went a whole club to the making of it. Fitzh. How should I know? I never saw nor heard of it till now. I have had the severest measure in the world: I have had no body suffered to come to me. L. C. J. Do not complain of severity, Mr. Fitzharris. I do not believe any such thing hath been used towards you. Fitzh. Pray, my lord, give me a little longer time. L. C. J. Mr. Attorney, what if we do this? He giving you the plea upon Tuesday, he may come upon Wednesday morning to put it in. Att. Gen. I cannot oppose it, if your lordship think fit so to order it. Justice Dolben. It is fit you should have it to see it, Mr. Attorney, before-hand. Justice Jones. And have some reasonable time for consideration what to do upon it. L. C. J. Well, delivering of the plea on Tuesday morning to Mr. Attorney, we do give till Wednesday to bring it hither; and then you shall come by rule again. Fitzh. My lord, I hope I shall have the liberty to see my wife this day. L. C. J. Yes, at seasonable hours, when there may be somebody by, to see that nothing be done to the king's prejudice. and your wife must do this; she must submit to be searched, that she carry nothing with her that may be prejudicial. And with these cautions we will admit her to come to you. Lieut. of Tower. Will your lordship please to give us a rule, to let his wife and counsel come to him? L. C. J. We do make such a rule. Cl. of Cr. My lord, we will make it part of the rule. Lieut. of Tower. We desire such a rule for our discharge. L. C. J. Sir, this is our rule, and we have declared it to this purpose. Then as to your matter, brother Stringer, this we will do; Let the lieutenant of the Tower keep Mr. Fitzharris safely till we return out of the Exchequer, and then we will examine him. Serjeant Stringer. My lord, we think it will be a short business and soon over, if you please to do it first. Fitzh. My lord, I may see my wife in the mean time, I hope. L. C. J. Do you insist, brother, that we' should examine him presently? Serjeant Stringer. My lord, Mr. Godfrey desires it. L. C. J. Then we will presently. Licut. of Tower. Must his lady speak with him? L. C. J. Yes, after he is examined. Lieutenant of the Tower, bring Mr. Fitzharris into our little room, where we will take a clerk and examine him. Mrs. Fitzharris, to her husband, (the court being just risen.) My dear, do not confess any thing about the death of sir Edmundbury Godfrey, nor the Plot, for you will be betrayed: speak only to little things. [Then the Prisoner was carried away to be examined, and after that to the Tower.] On Monday, the 2d of May, sir Francis Winnington and the other three gentlemen assigned of counsel for Mr. Fitzharris, came to the bar, and moved the court for an explanation of the rule concerning themselves, and the business they were assigned for. Mr. Williams. My lord, I am to move your lordship in a case, wherein I am, with three others of the gentlemen that attend this bar, assigned of counsel for Mr. Fitzharris; and that which I would beg for myself and them, is this: There is one thing we desire may be explained a little in the rule. I humbly apprehend your lordship gave leave to the counsel, whom you so assigned to come to Mr. Fitzharris, and entrusted them with the liberty of speaking with him alone; but by the penning of the rule, we apprehend that the same restraint is put upon them, that is upon other persons, to have somebody by at their being with him. L. C.J. The lieutenant sent to me on Saturday about it, and I told him it did not extend to you. Sir F. Winningion. We think it may have a construction either way; but we desire it may be made plain, as you meant it. L. C. J. We tell you it is plain, and it was so intended. Mr. Wallop. For my part, my lord, the notice I had was but very lately: I was by indeed when this person Fitzharris did desire counsel, and your lordship assigned me amongst the rest; but nothing of the order was brought to Sir F. Win. Therefore we taking it that me till this morning: so that I know nothing your lordship pronounced and meant it so, do of the matter less or more, than what I heard desire it may be so expressed. We are satis-upon the reading of the paper here on Saturday. fied that it was your lordship's intention; we I do not desire time for time-sake, or for delay; desire the clerk may make it in plain and intel- but we think the nature of the thing is such, as ligible words. And there is this farther in it, will require great consideration, and we desire my lordconvenient time to prepare it for the court. L. C. J. We declare it now to you, it was so meant and intended. ment. L. C. J. Look you, sir Francis Winnington, you must consider here the nature of your Sir F. Win. My lord, there is this further case: This is an indictment of high treason, in it: We four have met, and we desire as and there is nothing I see that is so greatly conmuch as may be to expedite this matter as far siderable in the case, but the height of the as we can, for our own reputation, and doing crime. It is an extraordinary crime indeed, if our duty to the person we are assigned of coun- he be guilty of it (for I speak not to prejudice sel for. But truly, so soon as is appointed by your client, but of the thing itself.) It is a treayour lordship, it is impossible for us to prepare son of a very high nature; and then what have things so, as to be ready by Wednesday morn- we to consider in this case? We might have ing. The plea I never saw, nor did I ever taken your client at advantage here, and it had hear of.it, till it was brought and read here; been no injustice if we had made him plead imbut since that, I have not seen it till this time.mediately as he would stand by it: and we are The rules were brought but last night to our not to consult your leisure, but your client's chambers; there is no solicitor in the cause se cause: he hath pitched upon you for his counthat may attend us. The indictment I have sel; we have given him three days time to not seen that we are to plead to, and truly I plead as he will stand by it, Saturday, Monday think the course is to have a copy of the indict- and Tuesday, and he is to come with his plea upon Wednesday. We have appointed for conveniency sake, that you should give a copy of the plea to-morrow morning to Mr. Attorney; but we do not tie you so peremptorily to that copy, that you may not vary in words from that form. Give him but the substance of the plea, and we will not tie you to the particular formal words. Peradventure Mr. Fitzharris could not have expected three days time, in course of law, upon such a crime, to put in such a plea, when he tells us, he will plead specially to the jurisdiction of the court. But we have done it in this case, to shew, that all the fairness that can possibly be used shall be used. On the other side, we must not spend all our time so, as to let the term slip for his neglect of waiting upon you, therefore if he will delay to send to advise with you, he must suffer for it. Suppose he did not come to you till to-morrow, what can we help it? L. C. J. We deny that, sir F. Winnington. Mr. Williams. It is impossible for us then to get ready in this time, I humbly move you will assign some convenient time, I know your tordship will not put an hardship upon us that are of counsel, to plead such a matter so quickly. It is a matter of difficulty, and there are not many precedents in it; and therefore it will require more care than ordinary. Sir F. Win. My lord, we ought to present things to the court as they are in fact, that we may not lie under any reflection from the court, nor any body else. You made a rule on Saturday, that I should be of counsel for him, (which I submit to) but I knew not of this til afterwards. I never saw the plea, nor any paper in this cause as yet: The rule was left at my chamber this last night; and when I saw it, Mr. Williams and we got together in the hall this morning we could not do it till just now, and we come now to wait upon the court, to acquaint them how the matter stands. I was not in court, when you gave your directions about this matter; but when I find what the nature of the case is, I shall be ready to do my duty to the court, and to him who is upon his life. It is a mighty cause, it is a cause that may be, if we do not acquit ourselves as we ought, have reflection upon our posterity, if we do not do it as well as we can. Therefore we desire some reasonable time, that we may have copies of the papers and things concerned in this cause, as the court shall direct. And we are assured your lordship is so well acquainted with the usual method in such cases, that you will give us all the favour in it you can. Mrs. Fitzharris. There is no solicitor, my lord, to go to the council. L. C. J. Well, we must not spin out the term to please him: he must take more care. I believe he would by dilatories be glad to put it off all the term. If Mr. Attorney gives con sent for more time, well and good. Mrs. Fitzharris. I hope your lordship will give leave for a solicitor; without your lordship's leave none will dare to venture. And I had the rule so very late— Cl. of Crown. They had it at three of the clock in the afternoon, as soon as it could be drawn up. 3 Mrs. Fitzharris. That copy was brought to the lieutenant of the Tower, and he sent it away immediately. |