The proceedings in relation to the tryal of Edward Fitz-Harris, at the Kings-bench-bar in Westminster-Hall, who stands indicted for high-treason which proceedings were on Wednesday the 4th. and Saturday the 7th. of this instant May, 1681 ... Fitzharris, Edward, 1648?-1681. 1681 Approx. 10 KB of XML-encoded text transcribed from 3 1-bit group-IV TIFF page images. Text Creation Partnership, Ann Arbor, MI ; Oxford (UK) : 2007-01 (EEBO-TCP Phase 1). A55947 Wing P3570 ESTC R4334 12246860 ocm 12246860 56969 This keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the Early English Books Online Text Creation Partnership. This Phase I text is available for reuse, according to the terms of Creative Commons 0 1.0 Universal . The text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. Early English books online. (EEBO-TCP ; phase 1, no. A55947) Transcribed from: (Early English Books Online ; image set 56969) Images scanned from microfilm: (Early English books, 1641-1700 ; 875:19) The proceedings in relation to the tryal of Edward Fitz-Harris, at the Kings-bench-bar in Westminster-Hall, who stands indicted for high-treason which proceedings were on Wednesday the 4th. and Saturday the 7th. of this instant May, 1681 ... Fitzharris, Edward, 1648?-1681. 4 p. Printed for J. Millet ..., [London?] : 1681. Reproduction of original in Huntington Library. Imprint taken from colophon. Caption title. Created by converting TCP files to TEI P5 using tcp2tei.xsl, TEI @ Oxford. Re-processed by University of Nebraska-Lincoln and Northwestern, with changes to facilitate morpho-syntactic tagging. Gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. 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Copies of the texts have been issued variously as SGML (TCP schema; ASCII text with mnemonic sdata character entities); displayable XML (TCP schema; characters represented either as UTF-8 Unicode or text strings within braces); or lossless XML (TEI P5, characters represented either as UTF-8 Unicode or TEI g elements). Keying and markup guidelines are available at the Text Creation Partnership web site . eng Fitzharris, Edward, 1648?-1681. Trials (Treason) -- Great Britain. 2006-01 TCP Assigned for keying and markup 2006-01 Aptara Keyed and coded from ProQuest page images 2006-04 Mona Logarbo Sampled and proofread 2006-04 Mona Logarbo Text and markup reviewed and edited 2006-09 pfs Batch review (QC) and XML conversion THE Proceedings In Relation to the TRYAL OF EDWARD FITZ-HARRIS , At the Kings-Bench-Bar in Westminster-Hall , Who stands INDICTED FOR High-TREASON , Which Proceedings were on Wednesday the 4th . and Saturday the 7th of this Instant May , 1681. For that he by several Hellish and Diabolick Practices , endeavoured to compass the Death of His most Sacred Majesty , and to Subvert the Government . With the Account of the Substance of his Plea , and the most Remarkable Circumstances that happened , during the Debates on either side . ON the 4th of this Instant , about 9 in the Morning , Edward Fitz-Harris was brought from the Tower by Water , strongly Guarded to the Kings-Bench-Barr in Westminster-Hall ; where being demanded what he would plead , he delivered his Plea which was ready drawn up in Writing to the Court , and prayed that it might be Read , which was Granted ; but before the Reading of it , one of the Counsel for the Prisoner stood up , and desired that he might be heard a few words , which were to this purpose , That they had endeavoured what in them lay to draw up their Plea to concurr with the Law in all points : And farther , That they had taken a view of the Jornals of the Lords house , and the Entrys of the House of Commons , to incert from them what was material in the behalf of the Prisoner , and hoped the Plea was such , as could not be refused , and therefore prayed that it might be Read and Accepted . A●ter which , the Plea was audibly Read , the substance of which was , That Edward Fitz-Harris the Prisoner at the Bar , haveing been Arraigned at the Bar of a Superior Court , ( meaning the House of Commons , ) and there put in jeopardy of his Life , he did humbly conceive that he could not be twice Arraigned for one and the same Treason , nor Tryed in any Court than that where he was first Arraigned , &c. referring the rest to a Record that was pretended to be in the Lords House . Upon the Reading of his Plea , Mr. Attorney-General refus'd to accept of it , alledging it was not only nought , but altogether frivolous , being drawn up on purpose to Question the Jurisdiction and power of the Court as to the Tryal of the Prisoner , and to gain time by delay : And farther , That he had not had such time to consider of the said Plea as he ought , by reason he did not receive it before 10 of the clock the Night before , To the last it was answered , That some of the People that looked to the Lords House were out of Town , so that they could not without much difficulty procure such Papers as were Material in the behalf of the Prisoner , and therefore hoped that that would not any ways be prejudicial to their Plea , &c. When one of the Counsel for the King standing up , made answer , That the Plea was altogether frivolous , and contrived for delay to gain some advantage on the behalf of the Prisoner , for at that time they rather ought to have pleaded to the Matter of Fact , than at all to question the Jurisdiction of the Court. As to the Tryal of the prisoner , when all the Judges had unanimously declared , That it was in their power to Try him , notwithstanding his being Impeached by the Commons ; And farther , That the Plea mentioned only Treason in general , but named no particular Treason , which they ought to have done , that they might the better have known how to have given their answer and stated their Objections accordingly ▪ the which by reason of the nomination of Treason in general , they could not do , not knowing whether the Treason to be mentioned in the Indictment was the same for which he stands Impeached by the Commons , and if not , then the Debate as to Law must consequently cease , and they must come to Matter of Fact. As to a Record said to be in the House of Lords , it was not mentioned what Record , the which had it been , the Jornal would be produced that there was no such Record relating to the prisoner . After these and several other learned objections against the Plea , Mr. Attorney General thought fit to demurr to it , which with the consent of the Kings Counsel , he did , and desired that the other side would joyn in demurrer , which they accordingly did , but prayed a considerable time might be granted to make preparation for Answer , considering the Life of a Man was concerned in it , but that was strongly opposed by the Kings Council , who pleaded that in this Case delays were dangerous , and that they had had Four Days already to consider on it , and that it was so foul a Treason , that if the prisoner was Guilty of it , he onght to have no favour or mercy shew'd him , and that his Life ought to be destroyed , seeing he endeavoured to take away the Life of the Government . The Counsel for the prisoner laboured to prove that it was usual to give time in such Cases , and cited two Presidents , but were over-ruled in both : by Reason they were only Indicted for Misdemeanours , and the prisoner for the Capitallest Crime that the Law makes mention of : Then they objected that Pluncket had time given him till the next Term , out in that likewise they were over-ruled . My Lord Chief Justice informed them , that he was Indicted for Treason in another Kingdom , and that his Witnesses being there , he could not possibly get them over before the Term would be expired ; So that in conclusion , the prisoner had till Saturday Morning allowed him to prepare for his Tryal ; when about 8 of the Clock he was brought to the Bar. When Mr. Attorney General gave the Court an account what more he had observed touching the Insufficiency of the Plea , and that it was drawn up on purpose to endeavour to lessen the Jurisdiction of the Court , which ought not to have been attempted : That the power of that Court was unquestionable as to the Tryal of the prisoner , notwithstanding any Impeachment lodged in the House of Commons , nor could it hinder the Tryal as to matter of Fact ; to which the Counsel assigned for the prisoner , pleaded that the prisoner being Impeached by the Commons of England in the names of themselves , and in the names of all the Commons of England , No Inferiour Court ought to undertake the Tryal , that is , to take it out of he hands of the highest Court of this Kingdom , the which the Lords and Commons Assembled in Parliament are declaring , that such things had been formerly done but that they proved of Fatal Consequence to those Judges who gave Judgement in such cases , for that it was a Breach of the Rights and priviledges of Parliaments , which ought not to be Infringed , nor did it consist with the Granduer of the Nation , that such Infringement should be made at this time , but did confess that there was no Record in the House of Lords as had been formerly suggested , Inferring that an Impeachment was much of the nature of an Appeal , where the Son and the Wife of any murder'd person might bring their Appeal , and notwithstanding the murtherer had been Tryed and acquitted or after Condemnation pardoned . And that an Impeachment is not at the Suit of the King but at the Suit of the People , and that all the people of England , viz. the Commons , are his Accusers , and therefore the Jury and Judges upon the Bench being Commons of England , they could not see how they could undertake to Try him , but that he ought to be Tryed before the Lords in Parliament , they being the Rightful Judges to determine any matter at the suit of the people ; that is , i 〈…〉 se of an Impeachment : In Order to confirm which , many Presidents and Antient Records were Cited , especially the Case of the Earl of Shaftsbury , who being Committed by Parliament for High Misdemeanour , he moved at the Kings Bench-Barr , that he might be brought thither by Habaes Corpus and Bailed , but it was refused him by the Judges then Sitting , declaring they would not meddle in that Case , by reason he was Committed by Parliament during the pleasure of the King and House of Lords . To these and many more , the Kings Counsel very learnedly replyed , and stated their Objections to each particular point , saying , That no Impeachment lodged in the House of Commons could hinder the proceeding of an Inferiour Court , for if so , the Justice of all Inferiour Courts be incroached upon , and in time be much bestraightned and confined within narrow limits ; and notwithstanding all the Prisoners Counsel had said It was absolutely in their Power to Try him ; and that the nature of an Appeal was different from that of an Impeachment : And farther , Since they had allowed , That the Commons are the Grand Inquest of the Nation , whether or no they had not made this Presentment for the King ? and if so , the Prisoner without any more ado might be Tryed at the Kings Suit , and therefore prayed the Court that the Plea might be over-ruled . To which the Court was pleased to Answer , That notwithstanding all that Counsel had said , they were fully satisfied that they had power to Try the Prisoner as to Matter of Fact , notwithstanding the Impeachment of the Commons , that they intended to preceed according to Law , and had not any thing to do with Matters in Parliament , but this Treason being committed out of Parliament , and the Criminal brought before them , they ought to do Justice , but would not be hasty on them , but would give them yet longer time , by reason it was a matter of weight and moment ; and therefore ordered the Lieutenants Deputy to carry back his Prisoner . Finis . Printed for , J. Millet , in the Year 1681.