I Do appoint FRANCIS TITAN and THOMAS BASSET to Print the Arraignment and Plea of EDWARD FITZ-HARRIS, with the Arguments and Proceed thereupon, and that no others Presume to Print the same.  
Fr. Pemberton.   

THE ARRAIGNMENT AND PLEA OF Edw. Fitz-Harris Esq; WITH ALL THE ARGUMENTS IN LAW, AND PROCEED OF THE COURT OF Kings-Bench Thereupon, in EASTER TERM 1681.  
LONDON, Printed for Fr. Titan, at the Three Daggers, and Tho. Basset, at the George in Fleetstreet. 1681.   

THE PROCEED OF THE Court of Kings-Bench IN THE CASE OF Edward Fitz-Harris, Esq; In Easter-Term, 1681.  
Easter-Term, xxxiij. Car. Secundi Regis in Banco Regis.  
ON Wednesday, April 27. 1681. the Grand Juries for the County of Middlesex were sworn, and after the Charge delivered by Mr. Justice Jones, His Majesty's Attorney General desired, That some of that Grand Jury which served for the Hundreds of Edmonton and Gore (that for Oswolston Hundred, being immediately adjourned for a Week) might be present at the swearing of the Witnesses, upon an Indictment for High-Treason, to be preferred against Edward Fitz-Harris Prisoner in the Tower of London, which was granted; but the Grand Jury being under some scruples against receiving of the Bill, desired the Opinion 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 Edmondbury 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 choose another man that was fit 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 do desire before we proceed upon this Indictment before us, that this same Fitz-Harris 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. 
What is it? a Petition?  Cl. of Crown. 
It is not subscribed by any body.  Jurors. 
But we do all own it, my Lord.  L. C. Justice. 
What is it? Read it.  Cl. of Cr. 
We Michael Godfrey, etc. being Sworn to serve in the Grand Inquest, the Hundreds of Edmonton and Gore, in this County of Middlesex, etc. and being yesterday sent for into the Court of Kings-Bench, by a Messenger from the said Court, to be present at the Swearing of several Witnesses produced on 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 Fitz-Harris, now Prisoner in the Tower, who in the late Parliament at Oxford was Impeached by the Honourable House of Commons in the name of themselves and of all the Commons of England; of which, we the said Michael Godfrey, etc. are part, and as Jurymen, be his Judges also.  
We therefore Humbly desire the opinion of this Honourable Court, whether it be lawful and safe for us, the said Godfrey, etc. (in case an Indictment of the said Fitz-Harris 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 consequence, for us to undertake, in a point of Right, not settled by Conference, and remaining yet undetermined in the High Court of Parliament?  
We therefore humbly desire the opinion of this Court upon the whole matter, whether legally and safely, we may proceed upon, to find the Indictment of Fitz-Harris, 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. Justice. 
Look you, Gentlemen of the Jury, We do not apprehend so.  Mr. Att. General. 
My Lord, Be pleased to spare me one word: This Indictment was tendered to this Grand Jury yesterday, and this Gentleman was against accepting the Bill till he had your Judgement, 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 sometime 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. Justice. 
Look you, Mr. Attorney, We will not now inquire into that. Gentlemen of the Jury, you seem dissatisfied in this matter, and desire the opinion of the Court in it, whether you may lawfully proceed to find this Indictment or not? We did hear yesterday of some scruples you made to my 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 Impeachment offered against Fitz-Harris by the Commons to the Lords, and that Impeachment was of High-Treason, which was not received, and thereupon there was a Vote of the House of Commons that he should not be tried by any other Inferior Court: You desire now to know whether you may inquire concerning this Treason, notwithstanding these things that have passed thus?  Mr. Godfrey. 
Yes, My Lord.  L. C. Justice. 
We are very ready and willing to satisfy any of the King s Subjects in any matters in Judgement before us, that they may see there shall be nothing but fair proceed in all Cases; We do tell you 'tis our Opinions, that notwithstanding any thing of this matter that you suggest in the Case before you, it is fit for you to inquire upon the Indictment, and you are bound to inquire by virtue of your Oaths, if an Indictment be exhibited to you; you cannot, nor aught to take any notice of any such Impeachment offered to the Lords, nor 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 Inquire 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 Oaths, 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, Nemine contradicente, 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 Sergeant at Law, moved for an Habeas Corpus, to bring up the Body of Edward Fitz-Harris, to be examined by the Court about the death of Sir Edmondbury Godfrey; The Court granted the Writ, and said, he should be Arraigned upon the Indictment against him, and then they would Examine him.  
Saturday, April 30. Edward Fitz-Harris was brought with a strong Guard to the Kings-Bench Court.  Mr. Serj. Stringer. 
Your Lordship hath been pleased to grant an Habeas Corpus for Fitz-Harris, and he is brought up and attends here.  L. C. Justice. 
We will send for Mr. Attorney, Brother.  Mr. 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. Justice. 
Well, well, send for Mr. Attorney, Brother, and hear what he says. 
Which being done, and Mr. Attorney come in, the Prisoner was brought to the Bar.   Mr. Serj. Stringer. 
My Lord, I would humbly move he may be brought into Court to be Examined, before he be Arraigned.  L. C. Justice. 
Why so?  Mr. Serj. Stringer. 
My Lord, We would have him Examined concerning Sir Edmundbury Godfry's Death.  L. C. Justice. 
What matters it? That may be done after as well as before.  Cl. of Crown. 
Edward Fitz-Harris, Hold up thy Hand.  Mr. Fitz-Harris. 
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. Fitz-Harris. 
My Dear, Plead to the Jurisdiction of the Court; here s a Plea drawn by Council for you.  L. C. Justice. 
You had best consider well what you have to do.  Mr. Fitz-Harris. 
My Lord, I desire this Paper may be read by the Clerks.  Mr. Just. Jones 
No, no, that cannot be till you have answered to your Indictment.  Cl. of Crown. 
Pull off your Glove, and Hold up your Hand.  Mr. Fitz-Harris. 
My Lord, I desire leave to Plead to the Jurisdiction of the Court.  L. C. Justice. 
You shall have it.  Mr. Fitz-Harris. 
I desire this Plea may be allowed.  Mr. Justice Dolben. 
Hear your Indictment first, and Plead afterwards.  L. C. Justice. 
Look you, Mr. Fitz-Harris, 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 Crown. 
Pull off your Glove, and hold up your Hand. (which he did.) And then the Clerk of the Crown read the substance of his Indictment to him in English. And then speaking to him, said, How sayest thou, Edward Fitz-Harris, Art thou Guilty of this High-Treason whereof thou standest Indicted, and hast been now Arraigned, or Not Guilty?  Mr. Fitz-Harris. 
My Lord, I offer this Plea to be read first, before I answer.  L. C. Justice. 
That Plea? Take his Plea: Let us see what it is. We take it to read it now.  Mr. Just. Jones. 
Not to allow it.  L. C. Justice. 
Only to see what it is.  Cl. of Cr. Reads. 
ET praed. Edwardus Fitz-Harris in propria persona sua venit & dic. quod ipse ad Indictament. praed modo versus eum per Jurator. praed. in forma praed. compert. respondere compelli non debet, quia dicit quod ante Indictament. praed. per Jurator. praed. in forma praed. compert. scil. ad Parliam. Dom. Regis nunc inchoat. & tent. apud Oxon. in Com. Oxon. 21 die Martii, Anno Reg. Dom. Caroli Secundi nunc Regis Angliae, etc. Tricesimo Tertio, ipse idem Edwardus Fitz-Harris per Milites, Cives, & Burgens. ad idem. Parliament. ad tunc & ibid. convocat. & assemblat. de & pro praed. Prodition. Criminibus & Offens. unde ipse idem Edwardus Fitz-Harris per Indictament. praed. modo indictat. existit secundum Legem & Consuetudinem Parliamenti accusat. & impetit. suit coram Magnatibus & Proceribus hujus Regni Angliae in eodem Parliamento per Summonition ipsius Dom. Regis ad tunc & ibid. Assemblat. Quodque impetitio praed. in plenis suis robore & effectu adhuc remanet, sicut per Record. inde in Cur. Parliament. praed. remanen. plenius liquet & apparet. Et idem Edwardus Fitz-Harris ulterius dicit, quod si quis in aliquo Parliamento Dom Regis hujus Regni Angliae de aliquibus Proditionibus, Criminibus, & Offensis, per Milites, Cives, & Burgens. ad hujusmodi Parliament. convocat. & assemblat. in hujusmodi Parliament. accusat. & impetit. suit coram Magnatibus & Proceribus hujus Regni Angliae in eodem Parliament. per Summonit ipsius Dom. Regis assemblat. tune hujusmodi Prodition. crimina & offensa de & pro quibus hujusmodi persona in hujusmodi Parliament. accusat & impetit. suit in Parliament. Dom Reg hujus Regni Angliae Audiri, Triari, & Terminari deleant, & semper hactenus consueverunt. & de jure debuerunt, & non alibi in aliqua Curia Infer. quam in Parliament. Et hoc idem Edwardus Fitz-harris parat. est verificare, unde non intendit quod Dominus Rex nunc velit in Cur. nunc hic de & pro Prodition. Criminibus, & Offens. praed. responderi, & petit Judic. si ipse ad Indictament. praed per Jurator. praed. in forma praed. compert. ulterius respondere compel●i debeat, etc. Cum hoc quod praed. Edwardus Fitz-harris verificare vult. quod Proditio, Crimina & Offens. praed. in Indictament. praed. per Jurator. praed. in forma praed. compert. specificat. & mentionat. & pro quibus ipse idem Edwardus Fitz-harris per Indictament. ill. modo indictat. existit, & Proditio. Crimina & offence. pro quibus ipse praed. Edwardus Fitz-harris in Parliament. praed. in forma praed. accusat. & impetit. fuit, & existit, sunt unum & eadem proditio crimina, & offence. & non al. neque diversa. quodque impetio praed. adhuc in plenis suis robore, vigore, & effectu remanet.  L. C. J. 
Look you, Mr. Fitz-Harris, As for this Pleading here, We use not to receive such Pleading as this without a Counsels Hand to it.  Mr. Fitz-Harris. 
I desire your Lordship to assign me Council.  L. C. Justice. 
Who would you have assigned Council?  Mr. Fitz-Harris. 
Sir Will. Jones, Sir Francis Winnington, Sir George Treby, Mr. Williams, Mr. Pollexfen, Mr. Wallop, and Mr. Smith.  L. C. Justice. 
Here are a great many you name; we will not enjoin any Counsel to serve you further 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.  Mr. Fitz-Harris. 
Then I desire Sir Francis Winnington, Mr. Williams, Mr. Pollexsen, Mr. Wallop.  L. C. Justice. 
Let them be Assigned of Council for him. We do Assign you them for Council. 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'll 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.  Mr. Fitz-Harris. 
My Lord, I humbly desire the Liberty to see my Wife and Friends in the mean time.  L. C. Justice. 
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?  Mr. Att. General. 
I cannot oppose it, my Lord.  Mr. Fitz-Harris. 
I desire my Counsel may come to me.  L. C. J. 
Mr. Fitz-Harris, We will admit Counsel to come to you, or else it will do you no good to asign them; All we can do shall be done.  Mr. Att. General. 
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 show him favour, you will do the King Justice.  Mr. Fitz-Harris. 
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.  Mr. Att. General. 
My Lord, I am not against that, but I would have all done safely and securely for the King.  Mr. Fitz-Harris. 
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. 
'Tis long enough, Mr Fitz-Harris.  Mr. Fitz-Harris. 
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 can't enjoin them to come to you.  Mr. Att. General. 
This Motion of his I fear is designed to put off his Trial.  L. C. J. 
It shall not, Mr. Attorney. It is true, 'tis 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 otherside, some time they must have to consider of it: I do therefore tell him it may be fatal and Peremptory to him, for aught I konws. Indeed if we would insist upon it, we might compel him to be ready presently, but that we will not do in this Case.  Mr. Fitz-Harris. 
Pray my Lord, give me till Thursday if you please.  L. C. J. 
I know it is time enough for Counsel to draw up a Plea between this and Tuesday.  Mr. Fitz-Harris. 
To morrow is Sunday my Lord, and they can't come to me then, so I shall have but one day.  L. C. J. 
Mr. Fitz-Harris, 'Tis time enough; we must not waste the Term, For as we would show 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 Delatory Plea, may spend so much time of the Term, that we cannot try it; and therefore if we do give you a just Favour, you must not grow upon us.  Mr. Att. General. 
Mr. Fitz-Harris knows this Plea hath been well advised on: There went a whole Club to the making of it.  Mr. Fitz-Harris. 
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. Fitz-Harris. I do not believe any such thing hath been used towards you.  Mr. Fitz-Harris. 
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 up upon Wednesday-Morning to put it in.  Mr. Att. General. 
I cannot oppose it, if your Lordship think fit so to order it.  Mr. Just. Dolben. 
'Tis fit you should have it to see it, Mr. Attorney, beforehand.  Mr. 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 you till Wednesday to bring it hither, and then you shall come by Rule again.  Mr. Fitz-Harris. 
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 some body 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.  Lient. of the Tower. 
Will your Lordship please to give us a Rule, to let his Wife and Conusel come to him?  L. C. J. 
We do make such a Rule.  Cler. of the Crown. 
My Lord, we will make it part of the Rule.  Lieut. of the 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. Fitz-Harris safely till we return out of the Exchequer, and then we will examine him.  Mr. Serj. Stringer. 
My Lord, We think it will be a short business and soon over, if you please to do it first.  Mr. Fitz-Harris. 
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?  Mr. Serj. Stringer. 
My Lord, Mr. Godfrey desires it.  L. C. J. 
Then we will presently.  Lieut. of the Tower. 
Must his Lady speak with him?  L. C. J. 
Yes, after he is Examined; Lieutenant of the Tower, bring Mr. Fitz-Harris into our little Room, where we will take a Clerk and examine him.  Mrs. Fitz-Harris. 
To her Husdand, (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 Second of May, Sir Francis Winnington and the other three Gentlemen assigned of Council for Mr. Fitz-Harris 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. Fitz-Harris; 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, who you so assigned, to come to Mr. Fitz-Harris, 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 some body 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 Fran. Winnington. 
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.  Sir Fran. Winnington. 
Therefore we taking it that your Lordship pronounced and meant it so, do desire it may be so expressed. We are satisfied that it was your Lordship's intention; we desire the Clerk may make it plain and intelligible in words. And there is this further in it, My Lord—  L. C. J. 
We declare it now to you, it was so meant and intended.  Sir Fran. Winnington. 
My Lord, There is this further in it, We four have met, and we desire as much as may be to expedite this matter, as far as we can, for our own Reputation, and doing our Duty to the person we are assigned of Counsel for. But truly so soon, as is appointed by your Lordship, it is impossible for us to prepare things so, as to be ready by Wednesday-Morning. The Plea I never saw, nor did I ever hear of it, till it was brought and read here; but since that, I have not seen it till this time. The Rules were brought but last Night to our Chambers, there is no Soliicitor in the Cause that may attend us. The Indictment I have not seen that we are to Plead to, and truly I think the Course is to have a Copy of the Indictment.  L. C. J. 
We deny that, Sir Fran. 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 Lordship will not put an hardship upon us, that are of Counsel, to plead such a matter so quickly. 'tis a matter of difficulty, and there are not many Precedents in it. And therefore it will require more care than ordinary.  Sir Fran. Winnington. 
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 Council for him, (which I submit to) but I knew not of this till 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.  Mr. Wallop. 
For my part, My Lord, the Notice I had was but very lately; I was by, indeed, when this person Fitz-Harris did desire Connsel, and your Lordship assigned me amongst the rest; but nothing of the Order was brought to me till this Morning; So that I know nothing of the matter less or more, than what I heard upon the reading of the Paper here on Saturday. I do not desire Time, for Time-sake or for Delay; but we think the nature of the thing is such, as will aequire great Consideration, and we desire convenient Time to prepare it for the Court.  L. C. J. 
Look you, Sir Francis Winnington, You must consider here the Nature of your Case; This is an Indictment of High-Treason, and there is nothing I see, that is so greatly considerable in the Case, but the height of the Crime. 'tis an extraordinary Crime indeed, if he be Guilty of it, (for I speak not to prejudice your Client, but of the thing itself.) 'Tis a Treason of a very high Nature: And then what have we to consider in this Case? We might have taken your Client at advantage here, and it had been no Injustice if we had made him to plead immediately, as he would stand by it: And we are not to consult your leisure, but your Clients Cause; he hath pitched upon you for his Counsel; We have given him three days time to Plead as he will stand by it, Saturday, Monday 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. Fitz-Harris 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 show, 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?  Mrs. Fitz-Harris. 
There is no Solicitor, my Lord, to go to the Counsel.  L. C. J. 
Well, we must not spin out the Term to please him: He must take more care: I believe he would by Delatories be glad to put it off all the Term. If Mr. Attorney gives Consent for more time, well and good.  Mrs. Fitz-Harris. 
I hope your Lordship will give leave for a Solicitor, without your Lordships leave none will dare to venture. And I had the Rule so very late—  Cler. of the Crown. 
They had it at 3 of the Clock in the Afternoon, assoon as it could be drawn up.  Mrs. Fitz-Harris. 
That Copy was brought to the Licut. of. the Tower, and he sent it away immediately.  Cler. of the Crown. 
Another Copy they had from me that Evening.  Mrs. Fitz-Harris. 
I never saw my Husband in the Tower till Yesterday in the Afternoon, and I am an Ignorant Person, and know not what to do in it without a Solicitor. Assoon as I could get Copies of the Rule writ out, I carried them to these Gentlemen.  Mr. Pollexfen. 
My Lord, I think it will be very hard upon us that are of Counsel to be so straightened in point of Time; for my part, the Rule was left under my Door the last Night, and I had it not till this Morning: It will be a mighty hard matter for us to get the Plea ready without a sight of the Indictment. Things must be averred to be the same, which we cannot, unless we see what is there alleged. This man hath been kept close Prisoner, and nobody suffered to come at him to instruct him; and we have not so much as Copies of any thing that we must make use of. We have no concernment, my Lord, in this matter, but what is assigned us by the Court; and we do not know by any Papers, if there be any, how we should put it into Form, and that is it, my Lord, which may lie heavy upon us: If this man's business should miscarry for want of putting it into due Form, the blame will be upon us, who are assigned his Counsel: Therefore if your Lordship please, under these Considerations, to give us Time and Leave to see the Indictment we are to Plead to, we may be the better enabled to do our Duty.  Sir Fran. Winnington. 
Really, my Lord, I ought to deal clearly with the Court; without a Copy of the Indictment, I know not how we shall be able to Plead as we should do.  Mr. Williams. 
My Lord, I do really move, not in favour of Fitz-Harris, but for my own Reputation; I cannot put my hand to a Plea of this Consequence, without time to consider very well of it; and unless, in truth, I can see the Indictment, and compare the Plea with it, to put it into Form fit for the judgement of the Court. And if these things cannot be granted, I desire to be excused.  L. C. J. 
Why Gentlemen, See what you ask, Where do you find any Precedent of a man Indicted for High-Treason, that would Plead to the Jurisdiction of the Court, that had more time given him than is in this Case?  Sir Fran. Winnington. 
We do not know what his Plea will be, my Lord, till we have seen it and considered it.  L. C. J. 
Your Client told us all, and we know all of us very well, That it is to the Jurisdiction of the Court, and can be no otherwise.  Mr. Justice Jones. 
Any thing else you may give in Evidence upon, Not Guilty. And it would be considered on your Trial.  Sr. Fran. Winnington. 
My Lord, it may happen to be not so properly pleadable to the Jurisdiction of the Court; We know not what it will be till we have seen the things necessary to draw it into Form. It is true consequentially, it is the Concern of our Client; but the ground of our Motion at this time is for ourselves. I did apprehend by the Rule, his Special Plea was to be admitted, if he tendered one, let it be what it will; We must consider many things in a Case of this Nature; And at last, whether it will be to the Jurisdiction, or what 'tis, we can't tell as yet. And till we have seen the Nature of the thing, and what is necessary to prepare it for the Court, I cannot venture to give it its proper Term. But our time is so short, if your Lordship will afford us no longer, that we know not how to be ready for it. Your Lordship does speak of Mr. Attorney's being attended with the Substance of the Plea, not tying us to the Form in the Copy delivered to him. Mr. Attorney was here upon Saturday, when this matter was first started, and he knew the Substance then: We know not what it is more than by Report. It is a Plea that so rarely happens, that we must be cautious in what Form we put it. 'tis as your Lordship hath been pleased to say, an horrible Treason, that in the Indictment is specified. We must not speak, nor do not mitigate the heinousness of the Crime; nor do we speak it because it is Termtime, and may hinder our other business: We shall all of us, I am sure, not at all consider our own time, or loss in the matter; but it being of so great weight, we desire reasonable time to do our duties: we name no time, nor dare do it; we submit that to the Court. But, My Lord, under favour, for the Copy of the Indictment, we do conceive 'tis necessary that we should see a Copy of it; and when the Court is pleased to admit the party to give in a Special Plea to the matter he is accused of, and assign him Counsel to Plead it, I take it to be very rational and consonant to Law, that he have a Copy of the Charge.  L. C. J. 
Sir Fran. Winnington, For you to come and say these things here, methinks is very strange, I think you can show us no Precedent, that ever so long time was given to any man to Plead to the Jurisdiction of the Court, nor that ever a Copy of the Indictment was granted in High-Treason; and for you, because of the greatness of the Treason, therefore to go about to make us believe, that it is more reasonable that a Copy of the Indictment should be granted in this Case than in another; that the greatness of the Crime should be meritorious, and deserve a Favour of the Court, not granted in other Cases, is a thing extraordinary.  Sir Fran. Winnington. 
I do not press it that way, I pray I may be understood aright; upon what appeared the other day, upon the nature of the Plea, I present it to your Consideration, Whether or no, when you have been pleased to admit a Special Plea, You will not let us see that which we are to Plead to?  L. C. J. 
No, it was never thought of surely.  Mr. Just. Dolben. 
No, it hath been constantly denied in Cases of Felony and Treason, and so you will find the practice to have always been. But I'll tell you what hath been done sometimes, They have granted some Heads out of the Indictment, that should enable the Party to fit his Plea to the Charge, and that was done in Wittypooles Case, upon a Plea of Auter forti acquit. They gave him the Times, and some other Circumstances to fit his Plea to his Case; but never was there a Copy of the Indictment granted.  Mr. Wallop. 
My Lord Coke, in his Preface to the 3d Report, declares, That it was the Ancient Law of England, and so declared by Act of Parliament in Edward the Thirds time, That any Subject may, for his necessary Use, have access to Records and Copies of them, be they for the King or against the King, and that the practice to the contrary is an Abusion.  L. C. J. 
So then, Mr. Wallop, you take it, that we are bound when any man is Indicted of Felony, or Treason, or any Capital Crime, if he say he must have a Copy of the Record, we must grant him a Copy of the Indictment; If you think so, the Court and you are not of the same Opinion.  Mr. Wallop. 
I inform the Court what I have read and seen, and where 'tis to be found.  Mr. Williams. 
My Lord, It may be necessary, for aught we know, for him to Plead over to the Fact laid in the Indictment, Not Guilty, as sometimes it is requisite for the Party to do. Now if we should mistake for want of having what is necessary, and thereby preclude him of the Advantages he might have had if the Plea had been rightly drawn, for aught I know, it will lie upon me for ever. My Lord, I do it merely out of Caution, and for my own Reputation sake: If any Legal Advantage should be lost by my unwariness, it will be a perpetual Reflection upon me; And therefore I am so earnest in this Case. And, my Lord, I can tell you what was done in a Case wherein I was of Counsel; It was not a Case of Treason indeed, but it was Murder, the next Crime to it; it was the Case of King and Thomas: Thomas was Indicted of Murder in one County, and found Guilty of Manslaughter; and afterwards was Indicted for the same Murder in another County, and being to plead this matter, I did insist upon it, that we ought to have a Copy of the Indictment; There was some Debate about it, but at last we had a Copy, and we alleged there, as here, it was impossible to plead without it; and the Cause was removed hither into this Court for Judgement.  Mr. Just. Dolben. 
The first Indictment you might have a Copy of, for you were to plead the whole Record.  Mr. Williams. 
Nay, we had a Copy of that to which we pleaded.  L. C. J. 
Mr. Williams, You tell us, you may peradventure have occasion to plead over when you know 'tis High-Treason that you are Indicted of, in framing and publishing a Treasonable Paper? Cant you direct your Client to plead over without a Copy? Certainly what you allege in that, for a Copy of the Indictment, is Non Causa pro Causa.  Mr. Just. Jones. 
What prejudice will it be to your Client to plead over?  Sir Fran. Win. 
My Lord, We only offer these things for ourselves, and we hope we shall not be pressed to do such a thing as this, without having reasonable Time to consider and deliberate of it, and without having what is necessary in order to it. 
Then Mr. Attorney being sent for, came into the Court.   L. C. J. 
Look you, Mr. Attorney, These Gentlemen that were assigned of Council for Fitz-Harris, do move the Court here, and say, they would have longer Time to draw up his Plea, for they must make use of several Copies of Papers, and they cannot so soon obtain them, nor find out those Records they must use, or other things as ingredients to this Plea, in so short a time; and they say likewise, that they desire a Copy of the Indictment. Now, in truth, they ought to have given you notice of this, that you might have been here likewise to hear what they say: If you do consent to give them longer time, we shall be ready to do it; but without it, we shall not be willing to delay it.  Mr. Att. General. 
I think your Lordship and the Court gave them a very just and reasonable time, when you allowed them four Days; and these Gentlemen are mistaken, if they think they are assigned as Counsel to all Events. They are only to draw up a Plea upon that matter that is alleged by the Prisoner, and to the Jurisdiction of the Court.  Sir Fran. Win. 
No, My Lord, I beg your Lordship's pardon: The Rule is to plead the special matter without more saying.  Mr. Att. General. 
My Lord, Under favour, It is as I say, and so is the course of Law; For the Prisoner ought to acquaint you with the Points he desires his Counsel to be heard to: And in this Case, Fitz-Harris did acquaint the Court before he would Plead, that he had some thing to object to the Jurisdiction of the Court; and so his Wife directed him when she gave him the Paper. I suppose she had other advice upon it; for she could not draw it up in that Form it was, herself; and he did acquaint the Court, he had matter to Plead to the Jurisdiction of the Court, and concluded so in the Paper that was read. And thereupon, according to his Prayer he had Council assigned him, these Gentlemen: I consented to it, as it was just I should; but that they should think, that they are to advise him in other matters than that particular upon which they are assigned, I know they know their Duty better than to offer at any such thing. Now since then there is but one single point, the Jurisdiction of the Court and nothing else, for they are not to advise in other matters: I think it was more than strict Justice, nay it was a very great Favour, for all men ought to be ready to plead such Pleas immediately.  L. C. J. 
Yes, in strictness, we might have required him to Plead as he would stand by it presently.  Mr. Att. General. 
The Law is, that he must have all ready, in Poigne, to make it appear that what he avers in his Plea is so; Therefore you needed not to have given him any longer Time: But because all the World might see the Court and King's Counsel dealt fairly in this matter, and did not mean to take advantage of any thing that looked like a Surprise, I consented to that time that your Lordship was pleased to set: And as for the Copy of the Indictment, I know not any reason they have to desire it; for they are not to advise in that, what Defence he shall make; but only upon this matter he hath alleged.  L. C. J. 
Look you, gentlemans, what Mr. Attorney tells you, is so, and we do expect that you should conform yourselves to it: We have given you three Days time, which is sufficient for such a thing as this. And Mr. Attorney, we told them thus, When we did direct them, that they should deliver you a Copy of the Plea to Morrow-morning. We are not so critical with them, as that we will not receive their Plea, if it be variant in Form from that which they deliver to you. That that we intent by it is this, That they should deliver you a Plea, the same in substance as that which they do plead here: If they would alter it in the Form, we can give them leave to do that without any prejudice.  Mr. Att. Gen. 
We will never pinch them in form, I think I have matter enough.  L. C. J. 
I tell you truly, I do believe some Friends of his had counsel to draw up this Plea for him.  Mr. Att. Gen. 
A great Cabal, no doubt of it, my Lord!  Mr. Wallop. 
My Lord, I desire that Council may be assigned in my place.  L. C. J. 
We assigned him those that he required, excepting Sir William Jones▪ and we did not deny to put in Sir William Jones his Name because we would not assign him, but because he hath declined the Bar, and does not practice here.  Mr. Williams. 
We do not draw in the Name of Sir William Jones, or decline him: we submit to your order about ourselves; but we desire that person that did draw this Plea, may be added to us.  L. C. J. 
If his Wife desire it, and will name him, it shall be so.  Mr. Williams. 
I desire to be put out, and he put in.  L. C. J. 
Sir, he understands what he would have, sure! and we can't discharge you upon any such account.  Mr. Wallop. 
Here are many Particulars and many Averments, which cannot so suddenly be set right, as the time allotted.  Mrs. Fitzharris. 
My Lord, there is not half those Gentlemen assigned that I writ to my Husband to ask for: I directed him Eight.  L. C. J. 
Who else would you have?  Mrs. Fitzharris. 
There was in the Paper Sir William Jones his Majesty's late Attorney-General, Sir Francis Winnington, Mr. William's late Speaker of the House of Commons, Sir George Treby Recorder of London  Mr. Pollexfen. 
Your Lordship may easily perceive by this Gentlewoman's carriage, how we are like to be instructed in this Cause, when nobody follows it but she.  L. C. J. 
Do you desire Sir George Treby should be added?  Mrs. Fitzharris. 
Yes, I do.  L. C. J. 
Let it be so then.  Mrs. Fitzharris. 
And Sir William Jones; I will do what I can to get him to come.  L. C. J. 
We will not enjoin him; but if he pleases, we leave him to his liberty.  Mr. Just. Dolben. 
Why, Mistress, you are got into the hands of Gentlemen that are as learned and able in their Profession, as you can have; you need no more.  L. C. J. 
Do you desire Mr. Smith?  Mrs. Fitzharris. 
Yes, my Lord.  L. C. J. 
Then add him.  Mr. Pollexfen. 
We desire that there may be leave for a Solicitor, one that may carry Papers in the presence of the Lieutenant.  L. C. J. 
We have confidence in you, but not in other persons; therefore we must consider of that: But what think you of it, Brothers? We may permit, I think, one to come from the Counsel to him, with that Caution.  Judges. 
Yes, my Lord.  L. C. J. 
Let the Papers than be inspected before by the Lieutenant of the Tower, and be from one of the Counsel; and so they have liberty to do it.  Mr. Att. Gen. 
There is no need of any Papers, my Lord—  L. C. J. 
Mr. Attorney, do not oppose that: Let them have liberty to carry any Papers that any of their Counsel, these Gentlemen we have assigned, shall send to him, or any from him to them; so as the Lieutenant may have first the sight and perusal of them.  Mr. Att. Gen. 
There is no great harm in that, though I see not that they will need any Papers.  L. C. J. 
Yes, their Plea to the Jurisdiction must arise upon Fact, which may be out of some Papers.  Mr. Att. Gen. 
You are assigned, Gentlemen, but to one point, the Jurisdiction of the Court, remember that.  Mr. Pollexfen. 
Your Lordship is pleased to say, That we may vary in form from what we delivered to the Attorney General; and Mr. Attorney is pleased to say, He will not pinch us as to form: How shall we be secure no advantage shall be taken of the form?  L. C. J. 
'Tis only as to that particular. You shall not be tied up to the form you deliver to him. What advantages there may be concerning the form of the Plea you bring hither, we will see shall not be taken.  Sir Fr. Win. 
Will you Lordship please to afford us no longer time?  L. C. J. 
When you are to plead to the Jurisdiction of the Court in a Case of High-Treason, and such a Treason as this is, what reason is there that so much time as is granted already, should be given you?  Sir Fr. Win. 
Shall not we have a Copy of the Indictment neither?  L. C. J. 
You will offer things that are not to to be granted to you, ad captandum populum, that you may say you are hardly used, and mightily straightened in this Case.  Sir Fr. Win. 
No, my Lord, we do not offer it for any such end.  Mr. Att. Gen. 
Gentlemen, remember you have not liberty to plead any thing but to the Jurisdiction of the Court.  Sir Fr. Win. 
We must submit to what your Lordship orders in it. 
Upon Wednesday the 4th of May 1681. Edward Fitzharris was brought from the Tower to the Kings-bench-bar.   Cl. of Crown. 
Edward Fitzharris, hold up thy hand. (which he did) Thou hast been indicted and arraigned for High-Treason; How sayest thou, art thou guilty of the High-Treason whereof thou standest indicted, and hast been arraigned, or not guilty?  Mr. Fitzharris. 
I have made a Plea, my Lord, which I desire may be received and allowed.  Mr. Wallop. 
May it please your Lordship, I desire to be heard a few words.  L. C. J. 
Would you not have the Plea read?  Mr. Wallop. 
I have but a few words to say before it be read, if your Lordship please, for ourselves, or at least for myself. According to the best Instructions we have had, we have drawn up this Plea, and I pray it may be entered so. But, my Lord, I humbly conceive we have not had, or for my own part I have not had those Instructions that were fit to direct me in this Case. It is a special Plea, and of a matter that rarely happens; and the nature of this special Plea is, that the matter contained in the Indictment and in the Impeachment, is one and the same matter. Now I have not yet seen, nor could I come at a sight, though I desired it, of the Impeachment, nor of the Indictment: But I humbly conceive, that by the Law, as this Case is upon a special Plea, the Prisoner ought to have a Copy of the Indictment. And I do not say that every one may demand a Copy of his Indictment, to find faults; but upon a special Plea, and particularly upon this, I humbly conceive he ought to have a sight and a Copy of his Indictment.  L. C. J. 
What, would you not have your Plea received?  Mr. Wallop. 
Thus, my Lord: if we can have no further Instructions, nor can by any other means come to a sight of these things, than it is the best Plea we can make in such a Case, and I avow the Plea; but if any thing should fall out amiss to the Prisoner for want of such a sight, I pray it may not lie upon me.  L. C. J. 
Read the Plea.  Cl. of Crown. 
Et predictus Edwardus Fitzharris in propria persona sua ven. & dic. quod ipse ad Indictament. predict. respondere compelli non debet, quia dic. quod ante Indictament. pred. per Jur. pred. in forma pred. compert. scil. ad Parl. Dom. Reg. nunc inchoat. & tent. apud Oxon. in Com. Oxon. vicesimo primo die Martii anno Regni dict. Dom. Reg. nunc tricesimo tertio, ipse idem Edw. Fitzharris per Milites Cives & Burgenses in eodem Parl. assemblat. nomine ipsor. & omnium Com. Angliae, secundum legem & cons. Parl. de alta proditione coram Magnat. & Procerib. hujus Regni Angl. in eodem Parl. assemblat. impetit fuit; quae quidem impetitio in plenis suis robore & effect. adhuc remanet & existit, prout per Record. inde inter Recorda Parliamenti remanens plenius liquet & apparet. Et pred. Edw. Fitzharris ulterius dic. quod alta Proditio in Indictamento pred. per Jur. pred. in forma pred. compert. specificat & mentionat. & alta Proditio unde ipse predict. Edw. Fitzharris in Parl. pred. modo ut prefert. impetit. fuit & existit, sunt una & eadem alta Proditio, & non alia neque diversa; & quod ipse pred. Edw. Fitzharris in Indictamento pred. nominat. & pred. Edw. Fitzharris in Impetitione pred. nominat. est una & eadem persona, & non alia neque diversa: & hoc parat est verificare, etc. Vnde ipse pred. Edw. Fitzharris petit. Judicium si Cur. Dom. Reg. hic super Indicamentum pred. versus ipsum ulterius procedere vult. etc.  Mr. Williams. 
My Lord, we humbly pray, being assigned of Counsel for this Gentleman Mr. Fitzharris, that this plea may be received.  L. C. J. 
Mr. Attorney, have you been attended, according to the rule of Court, with this Plea?  Mr. Att. Gen. 
No, my Lord.  L. C. J. 
What is the reason of that?  Mr. Att. Gen. 
Here is no more in effect, than what was offered four days ago, when Counsel was allowed him. I sent last night late to them for a Copy of the Plea: Indeed yesterday at noon they sent me this Note, That Fitzharris intends to stand upon his Plea, that he stands impeached in the House of Peers. I sent to know of them whether they would plead this to the Jurisdiction, or in Abatement, or in Bar: They declared, they would not plead to the Jurisdiction, but now I see 'tis to the Jurisdiction.  L. C. J. 
It is so; and that he proposed to plead at first.  Mr. Att. Gen. 
It is true too, my Lord: But thus they sent me word.  L. C. J. 
And as a Plea to the Jurisdiction, so it concludes.  Mr. Williams. 
My Lord, we have done all that is possible for us to do in this Case. The Court directed us to attend Mr. Attorney with the substance, and so we have done; but the form, we had liberty to do as we pleased in.  L. C. J. 
You need not go about to excuse it that you have not done it; we charge you with nothing.  Mr. Williams. 
I don't go about to excuse it; we don't take it as a Charge upon us.  L. C. J. 
All we say is this: If Mr. Attorney had had it, peradventure he might have considered of a Replication by this time, or what he would do concerning it; but if he hath not had time, we cannot expect it from him.  Sir Fr. Win. 
My Lord, I only beg one word as to matter of Fact, and 'tis material as to ourselves to urge it. We did sent several Messengers to get, if it were possible to be obtained, a Copy of the Impeachment in Parliament. We sent to the House of Lords Clerk to get it, but they that went down, tell us the Clerk is not in Town; or else we had sent Mr. Attorney the whole Plea at that time.  L. C. J. 
I only ask the Question, to see whether Mr. Attorney hath had time to think of it.  Mr. Att. Gen. 
My Lord, I think I need not any time in this Case.  L. C. J. 
Pray go on, Sir.  Mr. Att. Gen. 
My Lord, I do pray your Judgement upon it; for 'tis a Plea that is insufficient: nay, 'tis no Plea to bar you of your Jurisdiction. First, I observe, that whosoever will plead a Plea to the Jurisdiction, if he have any Record to plead, must have it in poigne, must produce it in the Court, or at least must produce a Copy sworn, that the Court may see there is nothing dilatory in the Case. And for this matter it will appear upon Examination to be a plain frivolous Plea; for there is no such matter depending as this Plea alleadges. But I speak of it as a Plea to the Jurisdiction of the Court; and such an one as will plead such a Plea, he must have the Record ready, to show it to the Court, and by the Course of Law, aught to have it ready to assert to the Court, that they have not Jurisdiction: So then 'tis certainly nought. That is the first thing. Another thing is this, with submission, I say, They have pleaded no Record at all, nor any Impeachment at all, as this Case is; for the Notes that I have taken, my Lord, are, They say he was impeached by the Commons de alta Proditione; but that is nought: He ought in his Plea to have set forth his Impeachment, and for what Crime particularly; for either an Indictment or an Impeachment de alta Proditione, or Felony, or any other Crime, is nought, the Law allows it not. He ought to set forth, and must not aver upon a Record, but set it forth in haec verba, or in the substance of it; and so ought to plead the Record entire as it is. And for those necessary Averments that cannot otherwise be made, the Law allows of them. But in this Case he cannot come and aver upon this Record; for he hath set forth the Impeachment not as it was, but only barely the alta Proditione in general, which the Record must show, so as the Court may judge of it, and it must not be intended. But as they have set it forth, in this Case there is nothing of Treason specified in the Record averred, that can intent this to be the same; and, my Lord, so are all the Precedents. Whosoever pleads a private Act of Parliament, must plead it as it is, not in general that it is for the same matter; for I take it then 'tis nought: and we are in your judgement, that this is no Plea to the Jurisdiction upon that point.  L. C. J. 
Mr Attorney, Do you think it prudent to argue it this time, or will you take a day? Pray consider of that a little.  Mr. Att. Gen. 
My Lord, I think delay is very dangerous and mischievous in this Case.  L. C. J. 
We can give you as short a day as you please.  Mr. Att. Gen. 
But to satisfy the Court, the Clerk will be ready with the Journals, to show that the Fact is not as they plead it.  L. C. J. 
Look you, Mr. Attorney, we must go on in a legal and formal way, when we have a Plea put in: Therefore whether you will not take time for a day or two to consider of this Plea: you had the substance of it, but nothing concerning the manner of the pleading; they would not tell you whether they would plead it in Abatement, or in Bar, or how: Therefore whether you will not take time to consider of this pleading for a day or two, pray consider with yourself. 
Then the King's Counsel consulted one with another.   Mr. Att. Gen. 
My Lord, Not only for what I have already offered, but for many other reasons, we can see this can be no way a Plea to the Jurisdiction of this Court; for upon any Impeachment or Indictment, the King hath Election to proceed upon which he will: and if there were ten Indictments for one and the same thing, if none of them are come to a Judgement, the King may proceed upon which he pleases, as in that Case of Ireland yesterday; though the party were arraigned and ready to be tried in Ireland, yet the King might, if he pleased, try him here, and the King hath ordered it so to be. But, my Lord, I take it, that this is not only apparently a false Plea, but a frivolous Plea in itself, being to the Jurisdiction of this Court: For there was never any thing of a Crime so great, but this Court of Kings-bench, which hath a Sovereign Jurisdiction for Commonors especially, could take Cognizance of it; and I put it upon that, my Lord. Never was such a Plea pleaded to your Jurisdiction; and therefore we pray your Judgement upon it.  Mr. Sol. Gen. 
My Lord, before we come to that which is the Question, if there were such a Plea pleaded to the Jurisdiction as they would have this to be, we humbly pray the Judgement of the Court, whether this be any such Plea at all as can bear any Debate: For it will not be a Question now, how far an Impeachment depending is a Bar to your Jurisdiction, but the Question is, first, whether this be such a Plea? For, my Lord, I do take it, No Man can plead any Record in another Court, any Indictment or Acquittal upon it, by pleading it in this Form as this is pleaded, by saying generally, that such a time in such a Court he was indicted for the same Offence and was acquitted: yet thus this Plea is and no more. But he that will plead altar foitz acquit, must plead that such a time he was indicted in such a Court, and set forth the Indictment and all the proceed of that Court upon that Record, and then 'tis proper for Judgement; such a Plea is Formal and requires an Answer, and it will be proper for us to give it an Answer; and when such a Plea is put in, we shall either Demur to it, or give it the Answer that it requires, of nats' tiel Record. But this does not require any particular Answer, because it sets forth no Record at all that we can answer to: for it is not sufficient to say in general, that he was Indicted and Acquitted, or Impeached, and then aver that it was for the same Offence, but he ought to show forth the Impeachment, and set forth in the Plea the Record, that upon it you may pass a certain Judgement. Therefore we hope you will set this aside, as not being at all Formal, or requiring any Answer to it.  Mr. Serj. Maynard. 
My Lord, If you please to consider in this Case what is the Question; and what not. At present 'tis not the Question whether if a Man be Impeached of High Treason by the Commons before the Lords, and this Impeachment stands unreversed in the Court of Parliament: I say, 'tis not the Question whether this Court have Jurisdiction over this Man for that Offence, but the Question is, Whether he hath put in such a Plea before you as will put that in Question? Under Favour, 'tis not sufficient for him that will Plead a particular Record, in Bar or other way, and make use of it, that he plead it in general Terms, but he must set forth that Record as it is, he must not give you the Title only, or say, he was Indicted for such a thing generally, but he must so set it forth to the Court, that if Issue be taken, the Court may by comparing the Record with the Plea, judge whether it be the same Matter or no. Now when he pleads he was Impeached for the same Treason, he must set forth what that was, that it may appear it was for the same Treason; and if that be particularly set forth as it ought, upon nats' tiel Record, the Question will be, Is there such a Record or not? Now if he comes and says he was Indicted or Impeached, and not for what in particular, the two things that upon the Issue are to be compared, are not made so fit for your Judgement. In our Law, my Lord, if a Man will plead, he need not set forth a general Act of Parliament, but if he will plead a particular Act, he must set forth the Matter of it, to bring his Case under the Judgement of the Court; And whether this be so pleaded or no, we submit it to you.  L. Ch. J. 
Pray let me speak two or three Words to you, Do you speak it against our receiving of the Plea?  Mr. Attor. Gen. 
Yes, my Lord, We hope you will not admit such a Plea.  L. Ch. J. 
That will be hard. Pray then consider with yourself, whether if it be an insufficient Plea (for we'll say nothing at present to that  
and if the Plea be such that no Issue can be taken upon it (admitting it were so) whether you should not demur to it, before you demand our Judgement, that we may have somewhat upon the whole before us to judge upon? And I speak it to you, Mr. Attorney, to this purpose, that you may consider, whether you shall think fit to demur to this Plea, or whether you shall think convenient to take Issue upon it, or to Reply to it: That it may come judicially for our Opinion: for in a regular way, if a Plea be admitted, it must be either demurred to, or replied to. Pray consider of it in this Case, and we will give you time to consider if you please.  Mr. Serj. Maynard. 
Under favour My Lord, If a Plea be apparently vicious when it is upon Record, we need not demur to it nor take Issue; for else the mischief will be, we shall admit all that is well pleaded to be true.  Mr. Serj. Jefferies. 
My Lord, If your Lordship please, I do confess that according to the usual Course and Practice, if there be a doubt upon a Plea that is read, whereon any Point in Law may arise, you do put the Party to demur or take Issue, but according to the common Course of this Court in common Cases, and much more in extraordinary Cases, and especially in Capital Cases, and most of all in a Case of High Treason, such as this if it do appear to the Court and your Lordship: That the Plea is in its Nature a frivolous Plea, you do usually refuse to admit such a Plea, and give Judgement upon it: Now we would acquaint your Lordship with our Apprehensions in this Case, and we would pray you to consider what the danger may be upon us to demur, if this Plea be frivolous as it appears to be; For whether an Indictment in this Court, or an Indictment in another Court be for one and the same Offence, and so a Bar to the Jurisdiction, we are not so much as admitted into the Question of that as this Plea is; Whereas according to the Course in other Pleas, we pray you would be pleased to see the inconvenience, if we should be put to demur to it, for than we do admit by this Demurrer, that this Impeachment is for one and the same thing, and we humbly conceive my Lord, that is a little dangerous. How then will it be possible for you ever to judge, That the Impeachment (which in Fact is otherwise) and the Indictment is for the same thing, unless you will put them to pursue the common Methods, how it was in the House of Lords, by showing forth the Record, and what can we do otherwise (it being apparently against the common Form of Pleas, and manifestly for delay only) then Pray the Judgement of the Court, which we hope will be to reject this Plea.  Lord Chief Justice. 
Brother Jefferies, You need not be afraid, that you shall be concluded by this Demurrer, that there is such an Impeachment in the Lord's House for the same Offence. There will be no colour for it. And Brother Maynard, Formerly I confess, when they pleaded Pleas o'er tenus, and took their Exceptions o'er tenus too, they would demand Judgement of a Plea presently, and so it was in the Bishop of Winchester's Case, 3 Edw. 3. where there was an Indictment against the Bishop here in this Court, for going away from the Parliament at Shrewsbury, without the leave of the Lords; There Shared comes in, and Pleads o'er tenus this Matter, and says, This is a thing that concerns the Lords in Parliament, of which they have Cognizance only, and so prays the Judgement of the Court presently, Whether they have Jurisdiction of the Cause or no, and he pleads it in abatement. There they overruled him presently without any more to do, because their Plead were not as now they are, now they are grown into a formal Way, all entered upon Record, or at least written in Paper, and what should be the Reason, why you should not do according to the common course of the Court, I leave it to you to consider of it.  Mr. Serj. Maynard. 
It is very true, my Lord, anciently the Course was so, my Lord, and the Law was so too, to plead o'er tenus, but pleading in Paper is the same thing, and the Course of the Court hath been, when they saw it in Paper to be a frivolous Plea to give Judgement presently, and you have the same Privilege upon this account, as they had when Pleas were by Word of Mouth. If there be a Demurrer, it may hang longer than is convenient this Cause should do.  Lord Ch. Just. 
Do not speak of that, Brother Maynard, as to delay, you shall take as short a day as you will.  Mr. Attor. General. 
I have looked upon all the Precedents, and could never meet with one Demurrer where the Plea was to the Jurisdiction; but I pray your Judgement upon the first Matter, Whether whosoever pleads to the Jurisdiction ought not to have the Record in poigne to justify his Plea? In a Plea in Bar indeed it may come in by Mittimus, but in a Plea in Abatement, the Party ought always to be ready with those Matters, that are to out the Court of their Jurisdiction; and besides the Court is to maintain their own Jurisdiction, the King's Counsel have nothing to do to assert that, but they ought to avoid all things that may be to the King's Prejudice, and therefore it ought to be by the Judgement of the Court in this Case set aside. But I do think you will never find a Demurrer that was to a Plea to the Jurisdiction.  L. Ch. J. 
Pray consider of that.  Mr. Attor. Gen. 
But if it appear to be a frivolous Plea in the Form or in the Matter, you will not put us sure to Demur.  L. Ch. J. 
If you do insist upon it, that you won't demur, nor do nothing, we will give Judgement, but we will take time to consider it, if you won't Demur, nor take Issue, or Reply.  Sir Fra. Withins. 
Will your Lordship please to spare me one Word. As it hath been observed to your Lordship, This is a Plea to the Jurisdiction of the Court; and if they do plead a Plea of that Nature, the Court always expects the Plea should be substantially good, otherwise it is not to be received, now it is not substantially good here; For it says, that Fitz-Harris was impeached of High Treason: now such an Impeachment is nought, for no body can be impeached of High Treason generally. It ought to come and set forth the particular Acts that make up the Treason: for the calling of a thing so, does not make it so: Therefore they that would plead this Plea, must come and show that there is an Impeachment that hath such Matter in it as does amount to Treason, so that then it being a naughty Plea in the Substance of it, and the end of it to put this Court out of a Jurisdiction, we hope for that Reason you will not receive it.  Mr. Sanders. 
One Word further, if your Lordship please, on the same side for the King. As for this Plea that he hath pleaded here, if it had had substantial Matter in Law, whereupon to ground a Debate, we should not press your Lordship not to receive it, but we must get off of it as well as we could; but when it is manifestly pleaded merely for delay, and it so appears to your Lordship upon the reading of it, and that there is nothing of Substance in it, than we hope you will not receive it, nor put Mr. Attorney to Demur to it, or take Issue upon it. Now for the Plea, the Case is thus, Here is an Indictment for Treason against Mr. Fitz-Harris, for conspiring the Death of the King, compassing of it, and declaring such his Intention by a venomous Libel. Now he comes and Pleads to out this Court of their Jurisdiction, and what does he Plead? He says he was formerly Impeached of High Treason in the Parliament, that is all he says concerning the Impeachment; then he does come and make an Averment without showing more that this High Treason, and that for which he was Impeached, is the same, and takes upon himself to judge, whether the Court will or not, and will not submit it to the Court, which certainly is not the right way of Pleading. If Mr. Fitz-Harris should come and Plead altar foitz acquit, That he had been tried at another time for the same Offence and acquitted, he should not have said generally he had been formerly indicted and acquitted, and this for the same thing. But he must have showed the Record, and then averred upon the Record, that it was for one and the same Crime. For suppose in this Case, which would have appeared perhaps to be so, if he had done as he should have done, shown that there was such an Impeachment, whereby he was Impeached of High Treason, and which Impeachment did charge him with Treason for levying War against the King, and then have made a Conclusion as he does now, with an Averment, that the Impeachment and the Indictment was for one and the same Offence: Under favour, notwithstanding his Averment, the Court would have adjudged them not to be the same. For if so be the Treason do not appear upon the Record to be the same, his Averment will signify nothing; why then his Pleading now thus insufficiently for want of the Record, will be better for him than if he had pleaded it sufficiently. Why then if he had now pleaded, that there is a Record of the former Impeachment, and set forth the Record, and then averred this was for the same, Mr. Attorney might take Issue either there was no such Record, or said it was another Treason, and traversed it that it was not for the same, and so there would either have been one Trial by the Record, or the other upon the Fact by the Country. But now as he hath made it, this Trial both upon the Record, and upon the Fact, is only tryable by the Country, not by the Record. For if Mr. Attorney take Issue that there is no such Record, than all the Record is, that he was Impeached for High Treason, and then a Record of Impeachment for any High Treason would serve the turn, which if it be not for the same, it ought not: so than the Issue of nats' tiel Record could not be taken; Why then now, my Lord, as to the Fact; If Mr. Attorney take Issue, that it was not the same Treason, than the Record must be tried, that is, whether there was such a Record that does contain an Impeachment for the same Treason for which he stands indicted; this I say, must be tried by the Country. And if he have pleaded it so, that matter of Record upon Issue must be tried by the Country, for that reason his Plea is naught; and if that be so, than the Court may be satisfied, that 'tis apparently pleaded only for delay, because he would not come to the principal Matter, and plead Guilty or Not Guilty, which is the matter of Fact most proper for the Country. I rather hope he is not Guilty than that he is: but if he be Guilty, 'tis the most horrid venomous Treason as ever was spread abroad in any Age. And for that reason your Lordship will not give Countenance to any delay. And therefore we pray the Plea may be rejejected, and he may answer over.  Mr. Attor. Gen. 
He hath not Pleaded prout patet per Record.  L. Ch. J. 
Yes 'tis prout patet in Rotulis Parliamenti. He does say that he was Impeached of High Treason by the Commons, before the Lords, as appears by the Records thereof amongst the Records of Parliament.  Mr. Attor. Gen. 
I did not truly remember that, but I beg your Pardon if it be so, for I had not a view of the Plea till now; But I am ready thus far to satisfy the Court, 'tis a pure false and frivolous Plea. And then with Submission I offer it to your Consideration, whether you will give any time, or presently reject it.  L. Ch. J. 
We will give them no time, that is sure. But the Question is, whether time should not be taken, not in Favour of the Prisoner, but of the King and of the Court?  Mr. Attor. Gen. 
I am ready to make out, if it were necessary, that there is nothing of all this true, 'tis all Fiction that is pleaded, and nothing in the Record to warrant it; I have a Copy of the whole Journal, and of the Transactions in the House of Lords, the Book is close by and ready to be shown; but when 'tis a frivolous Plea, I hope there will be no need of that trouble.  L. Ch. J. 
But Mr. Attorney, Whether we can take notice of the Journal Book, now you had best consider as this Case stands.  Mr. Attor. Gen. 
They ought to have it here ready, they ought to have it here in poigne.  Mr. Just. Jones. 
There have been very many good Arguments urged by you, upon which perhaps the Plea will be judged insufficient: but the Question is, whether you are now in any such Form as we can pass Judgement upon this Plea or no? Therefore it being offered to you to consider of it, what you will do in it, sure it is reasonable you should consider of it, and when you are agreed, than you may ask our Judgement.  L. Ch. J. 
We cannot put you to it to give a final Answer to bind the King, therefore let it stand as it is, we will consider of it.  Mr. Attor. Gen. 
Then my Lord I'll Demur immediately.  Mr. Sol. Gen. 
And we pray they may join in Demurrer immediately.  Mr. Serj. Jefferies. 
If they do not mean it for delay, now Mr. Attorney hath demurred, I suppose they will join in Demurrer immediately. 
Then the Clerk of the Crown drew up a general Demurrer, which Mr. Attorney Signed, and it was read in the Court by the Clerk of the Crown.   Mr. Attor. Gen. 
We pray they may join in Demurrer.  Mr. Williams. 
My Lord, We that are assigned of Counsel for this Gentleman, the Prisoner at the Bar, (that your Lordship may be satisfied, and all that hear us, that we do not design or desire to delay one Minute in this Cause) do declare that we will join in Demurrer with them immediately. 
Then the Clerk drew up the joinder in Demurrer, which being Signed by the four Gentlemen of Counsel with Mr. Fitz-Harris, was also read in Court.   Mr. Attor. Gen. 
MY Lord, I pray your Judgement, here is an Indictment for framing a Treasonable Libel.—  Mr. Williams. 
My Lord, we hope we shall not be put—  Mr. Attor. Gen. 
Pray Sir, hear what I pray. My Lord, I desire your Judgement, that the Plea may stand overruled for a plain fatal Error in it; This is a particular Indictment for the framing a most pernicious scandalous Libel against the King, and the Government, for Treason in that particular. And I think there is no Person does doubt, but that this is a Matter within the Jurisdiction of this Court to try: There is no difficulty in that. What do they do to out this Jurisdiction? They come and Plead that Fitz-Harris was Impeached de alta proditione, that's all they plead of High Treason in general, to out the Court of a Jurisdiction, of a particular Treason, for framing a malicious traitorous Libel: And this is a particular Treason upon the Statute of the 13 th' of this King. Now they have pleaded no particular Treason upon that Statute they were Impeached for, nor upon the Statute of the 25 th' of Edw. the 3 d, which hath a general Clause of a Declaratory Power, and it may be he was Impeached upon that, and we shall not intent it otherwise, that being the general Law, the other but a particular Law for this King's Life. Now in all Pleas to the Jurisdiction, they ought to be the strictest and most certain of any Pleas whatsoever. And as I offered before to you, so I do now again, they ought to be ready with the Record to justify their Plea; but this in short I insist upon, that to out a Court of its Jurisdiction, for a particular Treason, 'tis not a good Plea, by saying he was Impeached or Indicted generally of High Treason, and no Averment can possibly help it. For it appears by the Impeachment 'tis not for the same, and 'tis rather to be intended that it was not, but the Impeachment being general, that they went upon a Declaratory Power, in the Statute of the 25 th' of Edw. the 3 d, which reserves to them the Power of declaring Treason at large, and not upon that which may be tried here in an Inferior Court upon a particular Statute. I say, my Lord, they ought to have pleaded it certainly, which they having not done, 'tis Fatal; and I pray your Judgement upon it, and I hope they are ready to make good their Plea.  Mr. Sol. Gen. 
My Lord, That that we do say to it, is, That this Plea is neither good in Matter nor Form, and if it had been pleaded never so formally, perhaps we would have demurred to it: But as now it is pleaded, it is not Formal, and therefore we pray it may be overruled. The Exception we take to it in point of Form, we think is Fatal; for there is no Man that pleads an Indictment or an Impeachment in another Court, but must set forth the Indictment in the Plea, which is not done in this Case, and we take that to be fatal to it. For a Man that will plead altar foitz acquit, must set forth the Indictment and all the Proceed of the Court upon that Indictment, this is the constant pleading in all Cases, and particularly in Vauxes Case, the 4 th' Report; who ever will plead altar foitz acquit, must set forth the Record, before it will require an Answer to be given to it.  L. Ch. J. 
What do you say to it Gentlemen, for the maintaining of your Plea?  Mr. Williams. 
This is that we say, my Lord, We hope your Lordship, and the Court in this Case, will not tie us up presently to come and argue this Matter. One thing I would mention, because it hath been said, there was never such a Precedent, I think to this Purpose; the Precedent of eliot's Case is very full in it, Mr. Attorney is pleased to say, he never found that any Plea to the Jurisdiction did require a Demurrer, but was overruled or allowed by the Court presently; But that Case is plain to the contrary upon that very Matter. It was an Indictment brought against eliot for some Misdemeanours committed by him in the House of Commons, this being pleaded to the Jurisdiction of the Court, the Attorney General at that time said it was not to be received, that was the Matter he insisted on then, that should be rejected; but the Court did then, as you do now, overrule the Attorney in it, and put him to demur.  L. Ch. J. 
We have done the same for you.  Mr. Williams. 
Then, my Lord, here is a Precedent that Mr. Attorney hath not seen: Now for time, the Court in that Case did not tie the Counsel up to argue the Plea presently, but gave them time till the next Term. We ask not so hard a thing of the Court, as so long a time in this Case, only here is a Man's Life in Question; 'tis indeed for Treason, and so it is of Consequence to the King, and there is also the Privilege of Parliament consequently concerned in it: What time your Lordship, and the Court shall think reasonable for us to be ready in, we leave it to your Lordship; we design not to delay at all, only we desire a reasonable time. Your Lordship did in the Case of Plunket, give him time for his Trial till next Term, which is as high a Treason as this I am sure.  L. Ch. J. 
You would have People think you have strange measure in this Case, that you have not the same time given to you that was given to Plunket; Pray consider, you object these things as though the Court were hard upon you, to tie you up in point of time. Is your Case like Plunket's? pray give us leave to clear our Accounts as we go along; he is brought from Ireland hither, is Indicted for what he did in another Kingdom, and it is by Law he is so Indicted indeed, but he being kept close Prisoner, and not knowing what time he should be brought to a Trial, he desires time to send for his Witnesses, who are to be brought over to clear him of the Treason: Can we in Justice deny it him, or could there be a shorter time than next Term given him, when his Witnesses are in another Kingdom, and it would be a fortnight or three Weeks before, possibly, he could have his Witnesses here? This I mention, because you will needs make use of such a Case, that is no more like yours than any thing that is the farthest different from it, yet you will have the Case to measure with your Case.  Mr. Williams. 
My Lord, I know it is in the Discretion of the Court, and as your Lordship did what was just for Plunket, to you will to this Person, I know you will do what is right to every Body. We are Counsel assigned by your Lordship, and we doubt not but your Lordship will be just to us, and give us a reasonable time to argue it.  L. Ch. J. 
Look you by the way, Mr. Williams, I must tell you, when we assigned Counsel to Mr. Fitz Harris, we expected that Counsel should consider the Plea, so as to be able to maintain it, when they come to plead it here; for that reason we gave him time to plead it, so as he would stand by it. What needed we else to have assigned him so much Counsel in such a Case as this is, but that he should be ready? and why you should now hope that we will give you a longer time for Argument in such a Case, I see not. Consider, whether in Discretion you think longer time ought to be expected upon such a Plea as this is.  Sir Fra. Win. 
My Lord, we will not take upon us to prescribe, nor to mention any time in particular, we leave that to the Discretion and Judgement of the Court, but this I think, we may pray according to the Duty we own to our Client, upon your Lordship's assigning us of Counsel. We could not foresee till to day, what the King's Counsel would do, whether Mr. Attorney would take Issue upon us of nats' tiel Record, or upon any of our Averments. We could not foresee, whether he would demur to us or not. I know your Lordship will be as favourable to us as you can, not having those Papers or sight of those Records that were necessary, and would have expedited this Matter, our time was all spent in forming of the Plea; and we could not prepare particular Matter in Law to defend it. We are as ready as can be expected, and we have been as industrious to prevent any delay, as any Persons could be in our Condition: Therefore it may be, we have had a general Consideration of the Plea, but now we see where the doubts do lie upon it: 'Tis a Matter of Law pleaded to the Jurisdiction of the Court. I do not indeed love to cite Precedents upon what is plain, but withal, I do not love to say things upon a sudden are plain, without Consideration: But this I will say, as 'tis now upon this Demurrer joined, it is a Case well worth our taking care of, and yours too, I must say it with your Lordship's leave. Therefore, if in the Case of my Lord Hollis, which was but upon an Information, and that but for a Misdemeanour, and though it was a Plea directly to the Jurisdiction of the Court, and certainly they came prepared, for they were all at Liberty, and had resort to all Papers and Books before the Plea pleaded, which we could not have, yet the Court was pleased to assign them time, and give them a large time, I hope we shall have some reasonable time. I do not speak it that we should have so long time; but I humbly beseech your Lordship, that we may do our Duty to the Court and to our Client, that we may have a little time. It is true it is a great and a horrid Treason, but it is as true here is the Life of a Man concerned in it; we do not affect delay at all, but hope you will not deny us what time is reasonable.  L. Ch. J. 
Look you, I'll tell you, you might if you had pleased, have entitled yourselves better to have had time, to speak to the Plea, if you had pleaded over to the Treason, than we could have given you time to have spoken to it, and not delayed the King at all; but you have thought fit not to plead over. I must confess, I did expect you would have pleaded over, as you might have done, and I thought you would. Therefore having not done it, it is in our Consideration, whether we will give you time, and what time we will give you.  Mr. Wallop. 
It is under your Lordship's Favour, according to the usual course of modern Practice. I have been an unprofitable Attendant here near forty years, and for my part, I did never yet see so swift a Proceeding as this is now, it is as swift as Lightning: It is a very extraordinary thing, we might well conceive, that nothing more should be expected from us, than what is usual, and that we should not be put out of the ordinary Proceed; anciently indeed, as your Lordship did observe the other day, they pleaded o'er tenus, and then the Proceed were very quick; now indeed it is otherwise, modern, and what we may call ancient Practice too, hath made an Alteration from that Method: And we humbly pray, we may not proceed, but according to the rate of modern Practice. My Lord, whereas they are pleased to call it a frivolous Plea, I believe it is a Plea of the greatest Import that ever these Gentlemen came here about, whatsoever they are pleased to say. But your Lordship knows, the Life of a Man is the greatest Favourite in Law, and that to be a most ancient and wise Rule, de morte hominis nulla est cunctatio longa. And since we could not reasonably expect to be thought to come provided in this Case; we humbly pray, that your Lordship will allot us such a reasonable time, as your Lordship shall think fit.  L. Ch. J. 
Come let me propose this to you, will you plead over?  Mr. Pollexfen. 
My Lord, I will give you an Answer to that, we cannot do it. When we were together, we did consider, whether if we should plead over, it would not destroy the Plea, and we were of Opinion that it would destroy the Plea; we cannot plead over but we give up the Jurisdiction. It is as indifferent and light to me as any Body, to be forced to argue it now; but as to the Matter of it, I believe, no Body can say, they ever saw many Instances of the like Nature: Therefore, pray my Lord, let us not go on so hastily with it, for we could not foresee, what since we know, how it would be with us. I did not think they would have demurred, but now 'tis come to that we must make the best of it. We have pleaded this Plea; if you will not be pleased to give us leave and time to be prepared to argue it, you must take it as we are able, since we can't have time to make ourselves able.  L. Ch. J. 
Certainly, Mr. Pollexfen, in favorem Vitae, it would not hurt the Plea to plead over.  Mr. Attor. Gen. 
My Lord, If your Lordship please to favour me a Word in this Case, I hear several things urged, particularly instancing in modern Practice. If that Gentlemen will show that in any Case the King and the Court were so Indulgent to give four days to plead to the Jurisdiction of the Court, than he will show me some thing of modern Practice which I know not, but if that Gentlemen will remember modern Practice in a great Nobleman's Case, for whom he was of Counsel; it was told him, If he would debate the Point of Law, he must do it presently: They never would give him time to prepare for his Argument, there was no such modern Practice then. I would desire him to give me one Instance, that when Gentlemen are assigned of Counsel to plead a Matter to the Jurisdiction, and deal so with the King's Counsel as they have dealt with us, not to let us see the Plea till now, the modern Practice hath been to give them any time. For them to say that they could not foresee what we would be at: Can they not foresee the Points of Law? Can they not foresee a plain Case? But they do not take off the great Matter that he that doth plead to the Jurisdiction, aught to have the Record ready in his Hand; but my Lord, we lay our Thumb upon that which is our Exception, they have pleaded no Impeachment of any Crime, that can appear to be the same with that for which they are indicted, that is the Point. Is there such difficulty? did not these learned Gentlemen think. Can they not foresee that we should look into their Plea, that it should be legal, therefore I did and do pray your Judgement? If they had pleaded and set forth the Record truly, as it is and as it ought to be set forth, in case they would have any benefit by it, we would have given them another Answer; but if it be done purposely, as it is done with Artifice, I am bold to say, for these Gentlemen know how to plead a Record as it ought to be, and how this aught to be pleaded to, ●o out the Court of a Jurisdiction of a particular Crime. they say, the Life of a Man is concerned, and so is the Peace of the Kingdom concerned too in the Life of as great a Traitor as ever was tried in Westminster Hall. For if his Treason had taken effect, certainly the Kingdom had been very near embroiled in civil Wars by this time. Therefore the whole Peace of the Kingdom depends upon his Life, and it depends upon the clearing of the whole Matter. And I challenge them again, if they can show me any Instance of the like Nature. That of eliot's Case that was mentioned, it was an Information; and to Pleas upon Informations there have been Demurrers, but to Indictments found by twelve Men, we do not meet with any Demurrer any where to a Plea to the Jurisdiction. But I pray your Judgement, that he may plead in Chief, for 'tis but a Respondes ouster, and if these Gentlemen desire to take time, I hope you will not delay the King by giving Countenance to such a plain imperfect Plea, and for those high Matters they talk of, that will be the Consequence they can never come in question upon this Plea.  Mr. Sol. Gen. 
My Lord, I have but one short word to that which is now in question. Our Exceptions to the Plea we offered and opened before: the Question is now, whether they shall have time to argue this Plea; And the Arguments they use for longer time, is, the Life of a Man, and they could not be prepared on a sudden; because they knew not what we would do. For the hasty proceed that have been in this Case, which they clamour of, I think they have little reason to speak so, since that hath been done in this Case, that never was done in any other. He hath had three days time to consider, whether he will plead to the Jurisdiction of the Court, which never was done to any, and so great a Favour, that he is scarce entitled to any farther Favour: Does any Man believe that they are not prepared? Do not Gentlemen when they consider of a Plea, consider upon what Grounds they Plead? And does not that let them into the whole Matter where the weak parts of the Plea are, and what may be objected against it. I am sure that these Gentlemen are of that Consideration, that no Man does believe they would put in this or any Plea, without having considered beforehand what to do. And then, when they have put in a Plea upon great Consideration, no Man is to think that they are unready to maintain it. Our Exception is short, and they do but talk in general Terms that they are unprepared, and they have no reason to expect this Kindness from the Court; especially since they used Mr. Attorney at this rate, they gave him not the Plea, but only a Note, to tell him they would do that which they said four days before, and no more; if they had done regularly, they should have brought Mr. Attorney the Plea, and left a Copy with him, and desired him to consider of it. But we do not pretend we are surprised for all this Usage, we see the Plea here, and we see the Faults of it, and we have demurred to it, and tell them our Exception, sure they are better prepared than 'tis possible for the King to be, yet we are ready; and we hope you will grant them no longer time.  Mr. Serj. Jefferies. 
Will your Lordship be pleased to spare me one Word, I wonder at what Mr. Wallop seems now to urge, concerning the Life of a Man that is concerned in this Case; 'tis true the Life of a Man is concerned, which is a dear thing to the Law; but certainly the Life of the Government is more dear to the Government, and all Courts of Justice, than the Life of any one single Person. And I am sure, this one Person hath done as much as in him lies, to strike at the Life of the Government, in case this be true, that is laid to his Charge. Now to make this Case like to Plunket's the other day, is strange, I think your Lordship hath given an account of that. For hath he pleaded to the Fact, Not Guilty, as Plunket did? We that are of the King's Counsel, would in common Charity hope, that he is not Guilty; but I am sure, if he be Guilty, no English Man can think that he deserves to live; why then should we be so fond of a Man's Life, that hath been Guilty of such a Fact as this? For Example sake, surely, if that be the thing in question, we ought to have speedy Justice executed upon a Man that deserves no Mercy. Your Lordship was pleased to take notice of another Circumstance in the Case of Plunket: He was Indicted, he was Arraigned, and was to have had his Trial in Ireland, and was to fetch his Witnesses from thence; all these things were in that Case. He desired time to consider what he should plead, but your Lordship finding an Indictment found against him, according to the Rules of Justice, overruled that matter he suggested, and made him plead Not Guilty before ever you admitted him to debate any thing of that Fact. And then it appearing to your Lordship to be in another Kingdom, and that it was impossible, in regard of the hazards of the Winds, and Seas, to get over his Witnesses in a little time; your Lordship gave him time, but you gave him as straight a time, as could be consistent with the Rules of Justice, and as his Case would bear. Now, my Lord, this being offered in a Case of that expectation, which the Case before you seems to have; We desire the dispatch of it, as much as we can. In case the Man be Innocent, God forbidden but he should be acquitted; but if he be Guilty, God forbidden he should live a Minute.  L. Ch. J. 
Surely you don't take the Case, Gentlemen, to be a Case of so much Difficulty, as to deserve long Consideration; we did expect truly, that you would have been ready to have maitained your Plea.  Mr. Williams. 
My Lord, we do not desire any long time, be pleased to give us a day or two or three, as you please.  L. Ch. J. 
'Tis said, 'tis in a Case wherein the Life of a Man is concerned, 'tis true here is the Life a Man, of whom till he be found Guilty, we ought to have Consideration, as we would of any other whatsoever. For we have no reason to conclude him Guilty, till we hear him, and we are to be indifferent till we hear the Evidence, therefore notwithstanding the Indictment, we ought to weigh his Life as we would another Man's, till he be found Guilty. We in ourselves, do not see there is any so great matter of Necessity, for time to consider of this Case, yet I must tell you, since they pray it, Mr. Attorney, we are inclineable to give them a day or two's time to consider of it, and see what they can say to maintain this Plea. But then, gentlemans, if we do so, you must take notice, we will call you to plead presently after our Judgement upon the Plea.  Mr. Williams. 
My Lord, we have nothing to do with the Fact of this Case, we are only to speak to the Plea.  Mr. Serj. Maynard. 
Pray how then is your Life in question upon the decision of this Plea?  L. Ch. J. 
Brother, they do not speak as to this Plea, that it hazards his Life, but the subjecta materiae, upon the decision of it, supposing Judgement be against the Plea. Therefore, Mr. Attorney, we do think fit to give him till Friday Morning, and he shall be brought hither then again by the Lieutenant of the Tower; then we will hear these Gentlemen: and if they do not show us any considerable Matter to maintain the Plea, they must expect Judgement presently.  Mr. Attor. Gen. 
That certainly will be too long a time, pray, my Lord, they ought to have been ready now; if they will be pleased to be ready to Morrow Morning, I pray it may go off to no further time.  Mr. Just: Jones. 
There is a necessity, my Lord, I think that it should be so, for there is a long Trial at the Bar here on Friday.  Mr. Williams. 
That is a very short time indeed.  Mr. Just. Jones. 
You must be ready to Morrow Morning.  Mr. Williams. 
Unless, my Lord, you will give us a little more time, you had as good give us no time.  L. Ch. J. 
It seems the business of the Court is such, on Friday Morning you can't be heard.  Mr. Just. Jones. 
Either it must be to Morrow Morning or Saturday, and that is Exchequer-Chamber day.  Mr. Sol. Gen. 
My Lord, I believe they are not in haste.  L. Ch. J. 
Mr. Attorney, We would give them a reasonable time, but yet we would do nothing that might make unnecessary delays in this Case.  Mr. Attor. Gen. 
I pray, my Lord, let it be no longer than till to Morrow, and that is more than ever was given in such a Case. I know it was denied in my Lord Stafford's Case, they would not give the Counsel any time, but would make them argue presently.  L. Ch. J. 
As to that, Mr. Attorney, every Case stands upon its own Bottom.  Mr. Serj. Jefferies. 
My Lord, we have your direction for to Morrow Morning.  Sir Fra. Win. 
No, No, my Lord, we hope not so.  L. Ch. J. 
Look you Gentlemen, to accommodate you, the Court does think fit thus to do; we will be here on Saturday by seven a Clock in the Morning; on Friday we can do nothing, for there is a long Trial at Bar, that will take up our time: But on Saturday we will be here by eight a Clock sitting, and expect you to be here by that time, and we cannot afford you then long time to argue in; because it is an Exchequer Chamber day.  Mr. Attor. Gen. 
If Judgement be against the Plea, they must plead presently then, that we may not lose the Term for a Trial.  L. Ch. J. 
You must take notice of that, by the Rules of the Court, they must do it, Mr. Attorney. If our Judgement be against them, the course of the Court is so, we can't rule it one way or another.  Mr. Serj. Jefferies. 
But then, they ought not to pretend they have no notice, their Witnesses are out of the way, and so hinder the Trial.  Mr. Just. Jones. 
No, No.  Mr. Fitz-Harris. 
My Lord, I desire, I may have these Lords come to me, my Lord of Essex, my Lord Salisbury, my Lord Mayor, your Lordship, and Sir Robert Clayton, to perfect my Discovery. I have something to discover to your Lordship and them.  L. Ch. J. 
Your Discovery of what do you mean?  Mr. Fitz Harris. 
Of the Plot, and of the Murder of Sir Edmondbury Godfrey.  L. Ch. J. 
We did examine you about the Murder of Sir Edmondbury Godfrey.  Mr. Fitz-Harris. 
Your Lordship went away in haste, before I had told all I could say.  L. Ch. J. 
We asked you ten times, whether you had any more to say, and you said No.  Mr. Fitz-Harris. 
My Lord, I was in Confusion and Consternation, I scarce knew what your Lordship said to me.  L. Ch. J. 
We were not in haste, we asked you often that Question.  Mr. Fitz-Harris. 
It was haste to me, because I was not provided of the Questions you asked me.  Mr. Just. Dolben. 
To some of the Questions we asked you, you answered readily and freely, but to some we could not get a positive Answer by any means.  Mr. Attor. Gen. 
My Lord, he told me he was not in England then, and that he knew no more than what he had discovered.  Mr. Fitz-Harris. 
Did I say so, Mr. Attorney?  Mr. Attor. Gen. 
Yes, you are the Man.  Mr. Fitz-Harris. 
I can bring twenty Witnesses, I did not tell you so, and I can bring 500 Witnesses, that I was in Town then.  L. Ch. J. 
Lieutenant of the Tower, take your Prisoner, and be here before eight a Clock on Saturday Morning.  Sir Fra. Win. 
My Lord, now I desire we may have a Copy of the whole Record.  L. Ch. J. 
Not of the Indictment, but of the Plea and Demurrer, you may.  Sir Fra. Win. 
But, my Lord, I hope you will let the Indictment be read upon Saturday, because Mr. Attorney hath fixed his Exception upon part of the Indictment, which is the Libel that he calls the particular Treason, and I desire it may be in Court.  L. Ch. J. 
It shall be, and if you have any occasion of Reference to it, we will look upon it, we are all upon our Oaths, and must take heed that no Prejudice be done to the King; as well as to see the Prisoner have no unfair thing put upon him. 
Then the Prisoner was carried back to the Tower.   

On Saturday the 7th of May, 1681. Mr. Fitz-Harris was brought to the Bar of the Court of King's-Bench, about eight a Clock in the Morning.  Mr. Williams. 
MAy it please your Lordship, I am assigned of Counsel for this Person, Mr. Fitz-Harris, the Prisoner at the Bar.  Mr. Attor. Gen. 
My Lord, if you please, I will only briefly acquaint them with what our Exceptions are, that they may apply themselves to them.  L. Ch. J. 
Look you Gentlemen, I must tell you, all our time is straight enough for this Matter, for we are all of us to be by and by with all the Judges in the Exchequer Chamber; therefore we pray this of you, we will abridge no Man's speaking what is material for his Client, but we desire you will keep to the Matter, and the Points in Question between you, and save our time as much as you can.  Mr. Attor. Gen. 
That is the reason, my Lord, why I would lay my Finger upon those Points, that will be the Questions between us. Now the Exceptions I take to the Plea, are these; This is a Plea to the Jurisdiction of the Court, and some of our Exceptions are to the Form, and one is to the Matter. To the Form, my Exceptions are these; First, we say, that the general Allegation, that he was Impeached, de Alta Proditione, is uncertain, and too general, It ought to have been particularly set out, that the Court might judge, whether it be the same Crime; and it is not helped by the Averment. And the next Exception I take to it, is, here is no Impeachment alleged to be upon Record, I mentioned this the last time, and looking more strictly into it, I find, 'tis so as I said: For they come and make a general Allegation, that Fitz-Harris, such a time, was Impeached, Impetitus fuit, by the Commons, before the Lords, Quae quidem Impetitio in pleno robore existit prout per Recordum inde, etc. Now, my Lord, there is no Impeachment mentioned before: And quae quidem Impetitio, is a Relative Clause, and if there be no Impeachment mentioned before in the Plea, than there is nothing averred upon the Record, to be continued or discontinued, for Impetitio, does not actively signify the Impeaching, or passively the Person Impeached, but it signifies the Indictment or Impeachment, that Instrument which contains the Accusation, and which is to be and remain upon Record. Therefore, when they come and say, he was Impeached, and afterwards allege, Quae quidem Impetitio remains upon Record, that cannot be good; If a Plea should be Indictatus fuit, and afterwards they say quod quidem Indictamentum, etc. It cannot be good, for the Relative there is only illusive. These are our Exceptions to the Form. For the Matter of it, 'tis a Plea to the Jurisdiction of the Court, and with submission there the Point will be, whether a Suit depending, even in a Superior Court, can take away the Jurisdiction of an Inferior Court, who had an Original Jurisdiction of the Cause, of the Person, and of the Fact, at the time of the Fact committed. What use might be made of it, as a Plea, in Bar, might be of another Consideration, but whether this be enough to make it amount to such a Plea, as will take away the Jurisdiction of a Court, that had an Original Jurisdiction? that's the Question before you. These are the Exceptions I take, and do insist upon: And I desire, my Lord, the Counsel will apply themselves to these Exceptions, to answer them, and when we have heard what they can say, I hope to give them an Answer.  Mr. Williams. 
My Lord, I am assigned of Counsel for the Prisoner at the Bar, Edward Fitz-Harris, who is Indicted here for High Treason, and hath pleaded a special Plea to the Jurisdiction of the Court: And I must crave leave to state his Case upon the Indictment, the Plea to the Indictment, and the Demurrer to the Plea. And the Case, my Lord, upon the whole Record stands thus: He was Indicted this Term, by one of the Grand Jurie's for this County, of High Treason. As to the Indictment, it cannot be expected I should state the Parts of it, it being an Indictment I never saw; To this Indictment thus presented, Fitz-Harris hath pleaded thus: That he ought not to be compelled to answer to this Indictment, because, that before the Indictment was found, at a Parliament held at Oxford, the 21st of March last, he was impeached by the Knights, Citizens, and Burgesses, of the House of Commons in Parliament Assembled, in the Name of themselves, and of all the Commons of England, of High Treason; and that this was before the Court of Lords in that Parliament. He says further, that this Impeachment is remaining in full force, and effect, before the Lords in Parliament, prout per Recordum inde int' Record. Parliamenti remanens plenuis liquet & apparet. These are the Words of the Plea: And then he avers, that the High Treason mentioned in the Indictment, and the High Treason specified in the Impeachment, are one and the same. And he further avers, that he is the same Fitz-Harris named in that Indictment, and mentioned in the Impeachment. And after the Averments, he concludes, to the Jurisdiction of the Court; Whether upon all this Matter, they will proceed any further against him, upon this Indictment, and demands the Judgement of the Court to that purpose.  
Upon this Plea Mr. Attorney hath demurred generally, and we that are of Counsel for the Prisoner, have joined in Demurrer with him. Now in this Case, which thus comes before you, for your Judgement upon this Plea and this Demurrer, I take these things to be admitted.  
First, That the Prisoner stands Impeached, by the Commons of England in Parliament Assembled, of High Treason. Secondly, That the Impeachment thus made by the Commons, in the Name of themselves, and of all the Commons of England, before the Lords in Parliament for Treason, is now in being. Thirdly, Which I omitted in the opening of the Plea, that this was done said in Legem & Cons. Parliamenti, and being so, remains in plenis suis Robore & Effectu; And more particularly this Plea does refer to the Record, for the Parts and Circumstances of the Impeachment, prout patet per Record inde inter, etc. So that it does refer the Impeachment itself to the Record, and tells you this is among the other Records of that Parliament, all this is admitted by the Plea. Fourthly, And moreover, that this Treason, for which he stands Impeached before the Lords, and the Treason for which he stands Indicted before this Court, are one and the same Treason, and no way divers, and so they are the same numerical thing, and there is no manner of Difference. And that this Person Fitz-Harris now Indicted, and the Fitz-Harris In peached, are one and the same Person, and no way divers. And withal, my Lord, it appears plainly upon the Record, that this Impeachment was depending before: the Indictment found for the Parliament was the 21st of March, and it appears by the Record, this is only an Indictment of this Term. And another thing I must entreat you to observe, my Lord, it does not appear but that this Parliament is still in being, for any thing to the contrary in the Record, and as I take the Case, than it must be admitted so to be.  
So then I take the Plea to be in substance thus, though Mr. Attorney was pleased to except to both the substance and the form; but in substance the Case is thus: Here is a Person Impeached in Parliament, by the Commons in Parliament for High Treason, before the Lords in Parliament; and for aught appears that Parliament still in being, and this impeachment still depending: Then here is an Indictment for that very Treason; whether your Lordship now will think fit in this Court to proceed upon that Indictment is the substance of the Case; I shall speak to the form, by and by.  
My Lord, by the way I think it will not be denied, but that the Commons in Parliament, may Impeach any Commoner of Treason before the Lords in Parliament, I take that to be admitted. And I do not find that Mr. Attorney denys it or makes any doubt of that, for I think that was the Case of Tresilian and Belknapp, who were Impeached in Parliament, by the Commons before the Lords: I am sure my Lord Chief Justice Vaughan does in his Reports in bushel's Case say so; and upon that Impeachment of the Commons one of them was executed, and the other banished in Parliament. My Lord, I cite it not merrily, but I cite it as Authority. Indeed I do not go so far as to cite the Parliament Roll, it was in the time of Rich. the 2. I have not seen the Roll of late truly, but I am sure 'tis upon the Roll, and there 'tis to be found.  
Since than Impeachments of Commoners will lie in Parliament, here then My Lord, will be the Question, whether this Court may proceed upon an Indictment for the same offence the Parliament was for. And here I shall distinguish upon Mr. Attorney; he does allow the Parliament to be a superior Court, but admitting that he says, though it be so, yet the inferior Court having Original Jurisdiction of the Person and the Cause, it may proceed notwithstanding an Indictment in the Superior Court: And Ergo, he▪ does infer that this Court may proceed upon an Indictment, notwithstanding an Impeachment in Parliament.  
My Lord, I will compare a little the Case of an Indictment and an Impeachment, and show you how manifestly they differ. I do take the Case of an Impeachment not to be the Case of an Indictment; and so the Principle that Mr. Attorney hath taken is wrong, and the ground of that Argument wrong. I cannot say 'tis like the Case of an Appeal, but I may say the Case of an Appeal is like the Case of an Impeachment. For in an Appeal of Murder, though the Indictment be Capital and the same that is given upon Criminals prosecuted for the King, yet it is at the suit of the party, as in this Case 'tis at the suit of the Commons, and so 'tis an intimation of, and Analogical to, and bears the resemblance of an Impeachment in Parliament; I will not compare an Impeachment to an Appeal, but I will say an Appeal imitates an Impeachment. And 'tis as plain as can be, because Appeals are proper to Courts in Westminster-Hall, and 'tis at the suit of the party, the Prosecution and all the Process is ad instantiam partis, so is an Impeachment at the suit of the Commons. An Indictment is found upon the presentment of a Grand Jury who are Sworn ad inquirendum pro Domino Rege pro Corpore Com. And 'tis a mistake in the form when 'tis said & pro Corpore Com. for it is not for the King and the body of the County, but for the King for the body of the County: But now an Impeachment in Parliament is otherwise, 'tis not in the Name of the King, but in the Name of the Commons in Parliament and of all the Commons in England, wherein it suits with an Appeal which is at the suit of the party, so that 'tis like an Appeal and not like an Indictment: an Indictment is for the King, an Impeachment for the people. And as it is in its nature and constitution different, so 'tis in the prosecution also, for that is by the Commons of England, they are the prosecutors in effect, but now in all Indictments they are prosecuted always by the King's Attorney, or by some person in the name of the King. We are now arguing upon the Methods and forms of Parliament, therefore I must crave leave to insist upon those Methods more particularly. The Commons they bring up the Impeachment to the Lords, the Commons they prosecute the Impeachment, they manage the Evidence upon the Trial, and when the Lords have considered of it, and have found the fact, the Commons come and demand Judgement, and Judgement is given at the Prayer of the Commons, and no otherwise, and there are no proceed by the Attorneys. Indeed there have been attempts by Attorneys to prosecute persons in Parliament, by exhibiting Informations in the Parliament, but what success they have had I leave to them to consider that are concerned, and have read the Rolls of Parliament. But it is not safe to alter the old ways of Parliament; therefore I take it under Correction, that it is out of the road of Comparisons, when they will compare an Indictment and an Impeachment together, for they do not agree but differ extremely.  
I would then offer you some reasons why this Court ought not to proceed upon this Indictment: I take it, it does not become the Justice of this Court to weaken the Methods of proceed in Parliament, as this Court will certainly do. For if you will admit this to be the course that I have opened, your proceed will alter it. When there is an Impeachment depending in Parliament for Treason, if your Lordships will admit there may be an Indictment here afterwards in this Court, and proceed in this Court upon that Indictment, 'tis to alter the Method of Parliament proceed, and to subject the Method of their proceed there to the proceed of this Court. And what the Mischief of that will be, I must leave to your Lordship. As I opened it before, the Methods of both Courts are different, and their proceed very much vary, I think I need not trouble your Lordship with that, We all know it very well in the main. Indictments in this Court are to be tried by a Jury, where a Verdict must be given presently. There is but very little time for giving the Evidence, or for making Observations for the Crown, or for the public, and in order to bring it to the Trial, there must be an immediate Plea of Guilty or Not Guilty. Now if the proceed of Parliament were so sudden, there might be a great surprise, and great offenders pass unpunished, because the Prosecutors had not greater time to inspect the Records that might be of avail in the Case. Therefore in Parliament 'tis quite otherwise, there is time for Deliberation and Consideration, there are many references, and many Examinations, which are matters of Deliberation, and Consideration, which take up a great deal of time: But here you are straitened not only in time, but bound up to strict Rules, and so are straitened in your Methods and forms of proceed, as Mr. Attorney would here tie us up to the forms of little Courts; but it is not fit that the Justice of the Kingdom and the high Court of Parliament should be cramped by the Methods of an Inferior Court and a Jury. So you will then subject the Methods of proceed in Parliament to the Courts in Westminster-Hall, and what the Consequence of that will be is worth the consideration.  
Another reason I would humbly offer is this, My Lord, the Parliament is the Supreme Court certainly, and this Court is every way inferior to it, and it will be very strange that that Supreme Court should be hindered by an inferior: For the Highest Court is always supposed to be the wisest, the Commons of England in Parliament are supposed to be a greater and a wiser body than a Grand Jury of any one County. The Peers who are the Judges in that Court are supposed to be the wisest Judges, as the Commons the wisest Inquest. Will the Law of England now suffer an Examination, Impeachment and Prosecution for Treason to be taken out of the hands of the greatest and wisest Inquest in England? And will the Law of England suffer the Judicature upon this Prosecution to be taken out of the hands of the wisest and greatest Judicature, and put it into the power of a smaller Number of Judges, or of an inferior Jury? I do think it does not stand, My Lord, with the wisdom of the Law or of the Constitution of the Government.  
Another thing is this, My Lord, the common argument in any extraordinary Case, there is no Precedent for this way of proceeding: 'tis my Lord Coke argument in his Comment upon Littleton, fol. 108. and in the 4th. Inst. fol. 17. in his Comment upon the High Court of Parliament. And he takes occasion to speak it upon the account of that Precedent, the Case of the Indictment against the Bishop of Winchester, and of that against Mr. Plowden, and he says this wus never practised before. Therefore it ought not to be, so he infers, and puts a black mark upon it, by saying 'tis a dangerous attempt for inferior Courts to alter or meddle with the Law of Parliaments; for the words I refer myself to the Book, I dare not venture to repeat them upon my memory. So in this case, in regard that it never was done from the beginning of the world till now, the 33 year of this King, I may say, it being without Precedent, there is no Law for it.  
My Lord, there is another mischief that will certainly follow upon this, and that too runs upon the Comparison of an Appeal and of an Indictment. In the Case of an Indictment 'tis in the power of the Prince to pardon that Indictment, to pardon the punishment, and to pardon the offence, but in the Case of an Impeachment, I take it to be otherwise, as 'tis in the Case of an Appeal. And My Lord, if your Lordship will take this Case out of the power of the Parliament, and bring it into this Court where the offence may be pardoned, You do by that means subject that offence, and that method of proceed which would make it without consent of the party prosecuting, not pardonable by Law, to a Pardon: and this may be of dangerous consequence to the public, that crimes that are heinous and great in themselves, mighty bulky crimes, fit for the consideration of a Parliament, be they never so great, never so dangerous to the Government, yet should by giving this Court a jurisdiction, and possessing it of these causes, expose them to the will of the Prince; and so those crimes which are impardonable by methods of proceed in Parliament, would become pardonable by prosecution in this Court.  
Now My Lord, for my Authority, that Impeachments are not pardonable, I would only hint a little, to compare it to the Case of an Appeal, as Peuryn and Corbett's Case in 3 Croke, Hill. 38 Eliz. fol. 464. There was an Appeal of Murder; upon which he is found Guilty of Manslaughter, and Not Guilty of the Murder. Then there was a Pardon pleaded of the burning in the hand, or of the punishment; it is not plain in the Book whether the Pardon was after the Verdict or before (that I can't be clear in) but however there was a question whether the Queen could pardon the burning in the hand, however it was there allowed, but there was an exception. My Lord Coke, who was then Attorney General, took, that the King could not pardon if it had been an Appeal of homicide, and he concurred with the Court in that opinion: but that Appeal being for Murder, and the Verdict of Manslaughter, they passed over the question for this reason that I have mentioned, That the appeal was not for Manslaughter, it was for Murder, and if he had been found guilty of the Murder, it was not in the power of the King to pardon him, it being at the suit of the party. So the opinion of that Book is, and of the then Attorney General.  
Thus I have stated the thing, and the consequences of it, and it is not fit for me to dwell upon it: You will consider of it I am sure.  
Another thing I would say is this, if your Lordship should meddle with this way of proceeding, it will invert the Law in another thing; for 'tis a principle with us, That no man's life is to be put twice in danger for one and the same thing: I will then put the Case thus, If your Lordship should proceed upon this Indictment, and this person should be acquitted upon it, I am in your Lordship's judgement whether that acquittal will bind the Lords in Parliament; if that will not bind them, but they may still proceed on the Impeachment, than you invade that common right which every Englishman by the Law ought to have preserved to him, that no person ought twice to be brought in question for one and the same thing: And so, My Lord, you make a man to run the risk of his life twice by Indicting him in this Court, where, though he be acquitted, he may be called to an account again, if the Law be so. And if the Lords in Parliament should be of opinion, for they are the Judges of that Case, that the acquittal will not be binding to them, than a man's life is brought in question twice upon the same account.  
My Lord, I now come to this, the Time, how unseasonable a thing it is, and how dangerous to the Government; I take it to be a critical thing now at this time to make such attempts as these are. There are Lords now that lie under Impeachments of Treason, the highest Treason I think that ever was contrived; and upon this Impeachment one Lord hath been convicted and executed. Suppose upon the dissolution of that Parliament that impeached the late Lord Stafford there had been an Indictment against him for one and the same Treason; and by the same reason that this Court may proceed, his Majesty may appoint a High Steward to try by a Jury of Peers: For the Court held before the High Steward is as much a Court as any Court of the Kingdom, except that of Parliament. I say, suppose the King had appointed an High Steward, and that Lord High Steward had proceeded against my Lord Stafford, I think my Lord Stafford had been alive at this day. For in the case of Treason your Lordship knows there must be two Witnesses, and I am sure there came in fresh Testimony against my L. Stafford after the second Parliament after the Impeachment. I appeal to those Noble Lords that are here if it were not so; and had it not been for that fresh Testimony that came in afterwards, possibly my Lord Stafford might have been alive at this time. And the Lords in Parliament, as I observed in the beginning, when they find an high crime before them, when they find such a general contagious design to subvert the Government, and yet they cannot come to cut off the principal agents in this design, because perhaps there may not be two Witnesses in strictness of the Law at the first, 'tis the wisdom of a Parliament to deliberate and to take time. The good Queen who was used to say, Truth was the daughter of Time, and Time would produce Truth, Veritas filia temporis. If then there had been any any such hasty proceed as in this Case, I doubt my Lord Stafford had been now alive. Now then for these Lords that are now in the Tower, if your Lordships do go on in this way, do you not open such a gap as may be a ground to deliver them by the same Justice (I speak it under correction here, and I only offer it to your judgement, for I have not had many hours to consider of it, but your Lordship will think well of it, before you give any Judgement; by the same Justice) the other Lords may be tried by another Court? This I offer in point of reason, that this proceeding will be very hard, and is an imprudent thing, if not an illegal proceeding. My Lord, I am sure it will have this effect, it will stir up a question between the jurisdiction of this Court, and the Court of Parliament. For in all probability if this person should be acquitted, the Commons and the Lords too will look into it. They are a Court that make a survey of the proceed of all other Courts, and they will examine this proceeding, or at least may do. And if he be found Guilty, here is the power of the Commons in Impeaching, and the Jurisdiction of the Lords in Trial and Judgement taken away by an Inferior Court to them, and so stir a question between this Court, and that highest of Courts, the Parliament. And what will be the consequence of that, the judgement of that question will be in the Superior Court, for there is no middle Court between this Court and the Parliament to judge of it. Therefore I submit it to your Lordships.  
These are the things which I offer to your Lordship in point of reason, whereof some go to the prudence of the thing, some to the reason, and some to the ill consequences that may happen upon it, and I think many to the illegality of the act. And now this being said in the general, I come to the particular exceptions made by Mr. Attorney as to the form of our Plea.  
He was pleased to say, That this Plea was a plain frivolous Plea, which is his exception in general, and he gave you three reasons for it at first, and does now insist upon the same for substance.  
One was this, and he insisted upon it at this time, This Plea does not set forth any Record of an Impeachment, nor the particular matter of it, so as this Court may judge of the reason of it, and he compares it to the Case of a Plea of altar foitz acquit. If a man hath been Indicted and acquitted, he may plead it in another Court that hath Jurisdiction of the cause, if he be again Indicted for the same matter, but My Lord, first of all I take this Plea to be well pleaded in form, and in the second place, if there be any informality or defect (which I do not take it that there is, but if there were any such thing) I take it 'tis of another consideration, which the Court will deliberate before they give their Judgement on.  
But I say in the first place, I take it to be a very good Plea, and that it is good according to the pleading of altar foitz acquit. In pleading of a general Act of Parliament, we need not set forth the whole Act, but refer to the Record, and that will depend upon the Method of Impeachments in Parliament, which I am of opinion being the General Law of Parliaments, this Court ought to take Cognizance of. In the Case of altar foitz acquit, there is first an Indictment, proceeding of the Court upon the Plea, a fair Trial and a fair acquital; and a Record of all this matter. If now this Person come to be Indicted again for the same offence, there is a Record for him to plead that will show forth the whole matter, and if he does not plead that Record, 'tis his own default. But in this Case here is no such Record to plead, and there is the mistake, upon which Mr. Attorney hath gone all along. And you must in this Case be governed by the Rules and Methods of Parliament, which is this, the Commons in the name of themselves, and of all the Commons of England, Impeach such a person, and they bring up this Impeachment to the Lords in general, and there they have Liberty to present Articles in due time after due Consideration, which ought not to be done hastily. All this is no Record, such as may be had in the Case of altar foitz acquit; for first, the Impeachment of the Commons is no Record, when 'tis brought up to the Lords, there is only an entry into the Journal for the Lords, that such a day, such a person came from the House of Commons, and Impeached such a one. And you are not to expect the same strict Method, and form of proceeding as in other Courts, the Courts of Westminster-Hall, or inferior Courts. Your Lordship in this Case, must be governed by such a proceeding as is in Parliament. And must take it as it is, and we have said enough, and as much as can be in our Case. We have not indeed set forth an Indictment, a Plea, a Venire facias, etc. For there is no such proceeding in Parliament, but there was an Impeachment, by the Commons in the name of themselves, and of all the Commons of England before the Lords, that it is in pleno robore & Effectu, and that it was secundum legem, & consuetudinem Parliamenti, prout patet inde inter Recorda remanen. etc. And here is enough. For when we refer you to a Record; that is as much as if we had set forth the Record itself, for we tell you there is such a Record, and we point you to the place where you may find it. So we take it, 'tis a very full Plea, and if not, 'tis as much as any man can plead in such a Case, though it be not pleaded particularly.  
And My Lord, that your Lordship is to judge in this Case according to the Methods of Parliament; I depend upon the authority of My Lord Coke, I will repeat you some of his words, speaking of the Law of Parliaments, he says, and he borrowed it out of Fleta: That this high Court of Parliament propriis suis Legibus. 〈…〉 Et ista lex ab omnibus quaerenda, à multis ignorata, & à paucis Cognita. But he tells you, and certainly he says true in it: Who ever will be learned in the Law of Parliaments, must repair to the Rolls of Parliament; and give me leave to cite his Opinion, which I hope may be of great weight with this Court: It is in the fourth Institutes, fol. 15. He says for any thing moved or done in the House of Commons, it ought to be determined, adjudged and discussed by the course of Parliament, and not by the Civil Law, nor yet the Commons Laws of this Realm, used in more inferior Courts, which was declared so to be secundum legem & consuetudinem Parliamenti, concerning the Peers, and the like pari ratione for the Commons, and that stops this Court in our Case: For so it is said in this Plea, which is the matter you are to be governed by, that it is secundum legem & consuetudinem Parliamenti. He tells you further there is no notice to be taken of any thing said or done in the House of Commons, but by the Report of that House, and every member thereof hath a judicial place, he takes it out of Henry the 7th. and so the Book is expressly: And he goes on, this is the reason that Judges ought not to give any opinion of matters of Parliament; because it is not to be decided by the Commons Laws, but secundum legem & consuetudinem Parliamenti. So he tells you, you are bound by the Methods of Parliament, and I need not press the thing much after his authority, for he was learned in Parliament matters.  
But I would crave leave to mention a Case that was lately in this Court, and that was the Case of My Lord of Shaftesbury, who was brought by Habeas-Corpus to this Court, and upon that Habeas-Corpus, it was thus returned, that he was committed by order of the Lords in Parliament; there to remain during the pleasure of the King, and of the House of Lords. And this for an high Contempt committed in that House: Upon this return we insisted, that My Lord might be bailed, because it was uncertain, the pleasure of the King or the House of Lords; and upon reading the Order there is no Crime expressed, but only in general for an High Contempt. I speak it not for the particular Cases sake, but to apply the reason of it to our Case, the reason then given by the Judges, Mr. Justice Jones will please to remember it (for it was particularly declared by him) why they could not bail My Lord, was this: He was pleased to say, we in this Court take notice of the Court of Exchequer, and other Courts in Westminster-Hall, and it would be strange, if we should not take notice of the Course of Parliament, and House of Lords. And if you are bound so to do in other Cases, you are bound to do so in this: And if without pleading you take notice of the Course of those Courts, you will also take notice of the Law of Parliaments, and Customs of Parliaments: and (that I may make use of it to our purpose in this Case) we need not particularly say secundum legem & consuetudinem Parliamenti in hoc, instancing in this, and that, and t'other particular, but the Court is to look into it, without my pointing to the particular Law of Parliament. So that My Lord, here is ground enough before the Court, and I know the Court will look into it before they give judgement.  
The second Exception is this, that it is not said in the body of the Plea, that Fitz Harris is impeached for this Treason, but it comes in only in the Averment. Now My Lord, as to that we must pursue the Impeachment as it is in the Lord's Journal: 'tis for Treason generally there, and 'tis said to be secundum legem & consuetudinem Parliamenti, which goes to all, and there is a Record of it among the Records of Parliament, and Mr. Attorney hath confessed it by the Demurrer.  
And that this is the same Treason we do Aver in fact, which also is confessed by the Demurrer, and your Lordship will see by the Records and forrus of Entries in Parliament, (that I may not repeat things over and over again) that this is the Course, and Method of Parliaments.  
Mr. Attorney hath fancied an Exception of Grammar, an Adjective for a Substantive, but I take it to be as well as any man can plead in this Case. For what says the Prisoner? The Knights, Citizens, and Burgesses in Parliament assembled, did Impeach me, which Impeachment is still in force before the Lords. I take it to be as plain as can be: If they did impeach me, than there was an Impeachment; it can bear no other sense.  
My Lord, another Exception, and which was thought a strong one the other day, and strongly urged, is, that the King may choose his Court, and they compared it with the other Courts, but there is the mistake that runs all along in this Case. 'Tis no doubt the King may choose his Court for his own action and suit, but the Impeachment is an Impeachment of the Commons, and their suit is to be tried no where else but in Parliament. And the Case that was the other day cited by Mr. Attorney, for this purpose is true, of the person that was arraigned for Treason, and had been Indicted and arraigned in Ireland, and he may be arraigned and tried here, there is no Question of it; but to say therefore that this is a Consequence from that Rule, that therefore he will choose whether he will proceed in Parliament upon the Commons Impeachment, and put a stop to the proceeding of the Parliament, by proceeding in this Court, I take to be a great Non sequitur.  
My Lord, I have offered these Reasons, as to the form of the Plea to maintain it. Now as to the Precedents, I would a little speak what hath been done in the like Case, where this Court hath taken hold of Causes, and the prosecution of the Court hath been stopped by Pleas to the Jurisdiction, and what hath been done upon those Pleas: What doom they have had, I will hint some of them to you.  
There was a Case mentioned by your Lordship the other day, the Bishop of Winchester's Case, 3 Edw. 3. I dare not say that I have looked upon the Parliament Roll, but my Lord Coke tells us he hath recited the Record, de verbo in verbum: in the 2. Institutes, fol 15. there are all the proceed, it was not an Indictment, for my Lord Coke contradicts that, and says it was a declaration; there the Record at large sets forth, that the Bishop of Winchester was attached to answer the King, for that whereas at a Parliament held at Sarum, it was ordained per ipsum Regem ne quis ad dom. Parliament. summonitus ab eodem recederet sine licentia Regis. And that this Bishop in contempt of the King, recessit without leave of the King; I think 'tis rather an action than a Criminal proceeding, what says the Bishop to this? He comes and says, si quis deliquerit erga Dominum Regem in Parliamento aliquo, in Parliamento debet corrigi & emendari & non alibi in minore Curia quam in Parliamento, etc. What becomes of this Plea; 'tis strange there should be such an Inhibition, that no man should departed without leave of the King, and the Bishop be punished for it, we do not find any Judgement was given, nor would they venture to do it. My Lord Coke hath a mark upon it, for this very reason it looked as if there was a design to weaken the Parliaments, by bringing their proceed into Westminster-hall, but they would not do it, they would give no judgement for the King, but for aught appears the Plea stood.  
Then there is the other Case of Mr. Plowden, and many more in primo & secundo Phil. and Mar. where a great many of them, some whereof were Burgesses, and they submitted, but he did not. The Information there is this, that these persons were summoned to the Parliament, and departed from thence, without the leave of the King and Queen, though it was prohibited by them that any should departed, most of them submit to a Fine, and if it had rested there, it might have turned to the prejudice of the Commons as an example. But Mr. Plowden, he pleads as one that understood himself, and the power of Parliaments and their proceed very well, and considers the time to have pleaded in, says he continued in the Parliament from the beginning to the end of the Parliament, but he relies not there, but he brings a traverse full of pregnancy, and if our Plea be faulty theirs was 100 times as faulty, Absque hoc that he the said Edmond Plowden, the said day and year, during the said Parliament without Licence of the said King and Queen, and the Court aforesaid, did contemtuously departed in Contempt of the said King and Queen, and their Commandment and inhibition, and to the great detriment of the Common-Weal and State of this Kingdom, etc. All these things he pleads, which your Lordship knows to be a very ill traverse; and yet this Case continued all the time of that Queen, and the Court would never give judgement in it. This was in primo, & secundo. and yet it appearing upon the face of the Information, that it was a Case that concerned the Commons, the Court would not give judgement for or against the Commons as long as the King and Queen lived.  
There is a later Case, and that is eliot's Case 5 Car. there is an Information against My Lord Hollis, Sir John eliot, and many more: and there is a Plea put in to the Jurisdiction of the Court; I have a Copy of My Lord Hollis' Plea, and 'tis in a manner as faulty as Plowdens' Plea, but the Court in that Case does go, not upon the insufficiency of the Plea, but gives judgement generally that this Court had a Jurisdiction, the assault happened in Parliament, and the words were spoken there, and upon the Demurrer, they gave judgement upon the whole matter; what became of that judgement? We know very well, it was reversed 19 of this King: And pray observe the proceed in the reversal of that judgement. Judgement w●s given against My Lord Hollis, and the rest of the Gentlemen of the House of Commons, though there was no prospect of a Parliament, yet they were obstinate and would not plead; for they thought the judgement to be a very hard judgement, and this being a Plea in abatement, judgement was given for want of a Plea over. It may fall out in this Case, that this person may be obstinate, and not plead over, if you should give your judgement against this Plea. In eliot's Case they were fined severely, and they continued under this judgement in Prison, and in execution for the Fine a great while, and they were delivered, by what I cannot indeed justify in all its proceed, I mean the long Parliament, but what was done in 19 of this King, I think is good authority, which none can say but was a Parliament as useful to the King, and Kingdom as ever could be: In that Parliament the Commons examined this judgement; I speak because I have it in my printed Book, 'tis in Croke Car. I confess 'tis not in the first Impression, but it is in the 2. Edition that I have, and these are the expressions in it.  Lord Chief Justice. 
What Case is that.  Mr. Williams. 
'Tis in Croke, Car. but the Reversal was in 19 of this King.  Lord Chief Justice. 
Was the judgement given, do you say 19 of this King? Can a Case of that time be reported in Croke.  Mr. Williams. 
I don't say so absurd a thing. If your Lordship will have patience to hear me, I'll tell you what I say. My Book which is the 2. Impression of Croke, reflecting upon that Case in 5 Caroli, does publish the Votes of the House of Commons about it, and the Reversal of the judgement, in the 19 of this King. There the proceeding is this, Information is given to the House of Commons, that there was such a Case published, which did Derogate much from the privilege of Parliament invading the Liberty of speech, and the House of Commons considering the Consequence, ordered the book to be sent for and read, and taken into Consideration and debated; and upon Debate the House came to this resolution, That the judgement against Elliott and others is an illegal judgement and against the freedom and Liberty of speech, and this Vote they send up to the Lords, where 'tis confirmed and resolved in agreement with the Vote of the Commons. And by the way in Answer, to a Paper that is commonly spread about by the name of the Observator: I say the Commons come to a Resolution, and pass a Vote which is not indeed a Law, and when they have done that, they may transmit their opinions to the Lords, and desire them to concur; then the Lords and Commons have a Conference upon it, and at the Conference the Commons reasons are delivered, which the Lords take up with them to their House and debate them. Then they come to a Resolution to agree with the Commons. Afterwards upon this Resolution of both Houses they go regularly to work, by Writ of Error to reverse the judgement. And if it should fall out in this Case, that your Lordship should give judgement against the Plea, and this person should be obstinate, and not plead over, and thereupon your Lordship give judgement of death upon him, it may come to be a very hard Case if a Writ of Error should be brought in Parliament, to reverse this judgement, and it should be reversed when the party is dead. Therefore it will be of great Consequence in that particular.  
My Lord, I'll mind you of one old Case; it was 20 of Ri. 2. a person there presents a Petition to the Commons in Parliament, and it seems there was something suggested in the Petition, which did amount to High Treason, as there may be some Petition or some Complaint against a great Minister that may contain an Insinuation, as it were of High Treason; he was indicted out of Parliament for High Treason, and was found Guilty, and by the grace of the Prince he was pardoned, but because the Commons would not lie under that Precedent of an Invasion of their Privilege, though he was a person without doors, that prepared the Petition, and no more hurt done to him, but the prosecution, he being pardoned the judgement was voided.  Lord Chief Justice. 
Where is that Authority?  Mr. Williams. 
20. Ri. 2. Ro. Parl. 12. And you will find it in the Argument of Selden's Case, published in Rushworth's Collections, fol. 47. and 48.  
And now My Lord, I have done with the substance of the Case, with my reasons for the matter and for the form. In this Case here is the Life of a person before you, here is the right of the Commons to Impeach in Parliament before you, here is the Judicature of the Lords to determine that Impeachment before you, here is the Method and proceed of Parliament before you, and how far you will lay your hands upon this Case, thus circumstantiated we must submit to you, but I hope you will proceed no further on the Indictment.  Lord Ch. Just. 
Pray Gentlemen let us a little direct you, not to spend our time about that which is not to the purpose, or that is not in the Case; here is nothing of the Commons Right to Impeach in Parliament before us, nor of the Lords Jurisdiction, nor the Methods of Parliament in this Case, they are things quite foreign to the Case, and the matter in hand, which is, whether this Plea as thus pleaded, be sufficient to protect the Prisoner, from being questioned in this Court, for the Treasonable matter in this Indictment before us. Therefore you ought not to spend time in things that are not before us to be considered, being out of the Case: For we have nothing to do with any Privilege of Parliament, or of either of the Houses, here at this time.  Mr. Justice Jones. 
And Gentlemen there is nothing at all here, of any fact done in Parliament that can be insisted on here, nor is there any Complaint against Mr. Fitz Harris, for any thing he hath done in Parliament. All Mr William's Precedents run to that; but this is for a thing done without doors.  Lord Chief Justice. 
We speak to you to come to the point, which is the duty of all Courts, to keep Counsel to the points before them: The Sole matter before us is whether this be a good Plea, to Ouste this Court of a Jurisdiction, which otherwise unquestionably, we have of this matter.  Mr. Williams. 
'Tis a hard matter for the Bar to answer the Bench, My Lord.  Sr. Fra. Wnning. 
My Lord, I shall pursue your direction as well as my understanding will give me leave, and save your time as much as I can, but the Court having assigned us of Counsel, you will give us leave to use our discretion, keeping as near as we can to the points of the Case, and to the Pleading. But if upon the reasoning of this Case, other Parliament Cases fall in, I hope you will give me leave to cite them for maintaining our Plea. The Plea here is to the Jurisdiction, and consists of two parts; first matter of Record, which is that an Impeachment is depending in the House of Lords, (for so it must be taken upon the pleading as I shall manifestly prove) the second is matter in pais (viz.) the Averment that the Impeachment, and Indictment are for one and the same Treason, and the Plea is made up of these 2 parts, together with an Averment that the person is the same. The King's Attorney hath been pleased to Demur generally to us, and I am sure that if our Plea be well and formally pleaded, all the matter of fact is confessed by the Demurrer.  
Mr. Attorney did to my apprehension make but one Objection the other day, and he still insists upon it, That here is a Record too generally pleaded, and they compare it to the common Case of an altar foitz acquit, upon another Indictment; but I hope to make it evidently appear, That it is in no sort a parallel Case. The matter which I conceive is confessed by the Demurrer, is that there is an Impeachment by the Commons of England of High Treason against Fitz. Harris lodged in the House of Lords secundum Legem & consuetudinem Parliamenti. And that the Treason for which he was Impeached is the same Treason contained in the Indictment, to the which the Prisoner hath now pleaded. Upon this matter of fact so agreed, the general Question is,  
Whether an Impeachment for Treason, by the House of Commons, and still depending be a sufficient matter to oust the Court from proceeding upon an Indictment for the same Offence. My Method will be, shortly to speak to these things.  Lord Chief Justice. 
Pray let us give you some direction, that is not the question, nor can come in Question in the Case; you mistake the points of the Case.  Sir Fran. Winning. 
Why My Lord?  Lord Chief Justice. 
The Question is whether you have pleaded sufficient matter here to out us of our Jurisdiction. It is to no purpose to put Questions in the Case that are not in it.  Sir Fran. Winning. 
My Lord, I know the Case is very nice and tender on all sides, and therefore may very well bear an interruption; however I expressed myself, my meaning is the same with your Lordships. The Method that I shall proceed in will be this, I will suppose the Case before you had been of an Impeachment, containing the special Treason for which he is now Indicted. I will show in the next place, that as it is now pleaded, 'tis as available as if the Impeachment, in the House of Lords had mentioned the particular Treason. I shall then give some reasons why it is so, and mention one or two Precedents, that have not yet been cited. Two of the King's Council did agree that they would not make a doubt of the Plea, if there had been a particular Impeachment, and therefore I would, by considering what would be the reason of that Case, apply it particularly to the present Case. The House of Lords is a Superior Court to this: And is agreed to be the Highest Court of Record in the Kingdom, Plowden 389. Co. Litt. 109, 110. 9 Co. in Pr●…fat. And then I am within the Common Rule of Pleading, according to the differences taken in Sparries' Case, 5. Co. 61. and 62. That a suit first Commenced in an Inferior Court cannot stop a suit in a superior Court though subsequent, but a suit in a Superior Court, may be pleaded to stop the proceedings of one that is Infeor. And though it may be objected here, that the Parliament is determined and dissolved, and so there would be a failure of Justice; yet this Objection is of no force, for if once the suit be well Commenced in the Superior Court, it cannot after go down to the Inferior: And what is begun in one Parliament may be determined in another; so is the Case 4 Edward 3. n. 16. of the Lord Barkeley, and those that were accused for the death of Edward the 2. And though it was objected there, as hath been here, that by this means there might be a stop of Justice, by the Dissolution of the Parliament; yet the short and the true answer is, that it is in Law to be presumed Parliaments will be called frequently; to consider of the business of the Kingdom, and redress grievances, according to the several Statutes made for that purpose, 4. Ed. 3. cap. 14. 36 Ed. 3. cap. 10. I shall labour this no farther, but taking it as the common Rule of pleading, that a Record in a Superior Court may be pleaded, to stop a proceeding in an Inferior: I shall come to prove that this Record is well pleaded and could not be otherwise unless Mr. Attorney would have had us plead what is false; this being the truth of the Case; for the Commons did Impeach Mr. Fitz Harris generally of Treason, as 'tis the Course of Parliaments for them to do, and in our very Plea we allege that he was Impeached secundum legem & consuetudinem Parliamenti, and so Mr. Attorney hath confessed by the Demurrer, and if they may prefer an Impeachment in general accord-to the Law and Custom of Parliament; why then so far it must be allowed that we have pleaded well that he was Impeached of Treason. It is very true My Lord, If a man will plead generally that he was Indicted of High Treason, this would be ill, because the Court cannot take it otherwise than he has pleaded it, and such a general Indictment would be altogether void, and therefore no Averment could make it good or supply that generality and uncertainty.  
But an Impeachment generally for Treason, is good and warranted by the Law and course of Parliament, and so confessed by the Demurrer. And so your Lordship will take it to be, and will give Credit that all is regular in the proceed of that High Court. You will presume even in the Ecclesiastical Courts (as My Lord Coke says in the 4th. Report) that all things are rightly done, when they have a Jurisdiction à fortiori you will believe the greatest Court in the Kingdom does proceed regularly. My Lord Coke, in the 4th. Inst. fol. 14. and 15. does say what the Law and Course of Parliament is, the Judges will never intermeddle with. They always leave it to the Parliament who are the Superior Judges, and are to determine the matters before them. For they take notice that the Course of a Court, is the Law of a Court, as 'tis in Lane's Case in the 2. Report, in the Case of the Exchequer. And therefore if a general Impeachment is secundum legem & consuetudinem, which is confessed by the Demurrer in this case, than you must take it for granted that the Parliament proceed rightly, and that such a general Impeachment is sufficient in Law. There is a famous Case that strengthens what I say, 11 Ri. 2 di. Rot. Parl. par. 2. the Case of the Lords Appellants. You will find it also cited in rushworth's Col. part 1. in the Appendix, fol. 51. tresilian and others were appealed against for Treason, and both the Judges of the Common, and of the Civil Law were by direction of the King called to advise of that matter. And they did all declare that the proceed in that Case were neither agreeable to Common Law, nor Civil Law. But the Lords in Parlialiament said it did not belong to the Judges of the Common Law, or Civil Law, to guide them, but that they ought to proceed according to the Course, and Law of Parliaments, (which are the words of our Plea) and that therefore no opinion of theirs should out them of their Jurisdiction, or alter the Course and Method of proceed. My Lord, this Case is very remarkable, but I will go a little further, the Judges in all Ages have been so far from taking upon them to judge of the Laws and Customs of Parliament, that they have denied to answer when their Advice has been demanded, and insisted upon it, that they were not proper Judges of such matters, as in 31 H 〈◊〉 〈◊〉 Par. N. 26. For there among other things the Judges were demand 〈◊〉 ●…ether the Speaker of the House, during the Adjournment of Parliament might be arrested; they desired to be excused from giving any opinion; for said they, in this great matter they ought not interpose, it being a matter of Parliament.  
In the great Council primo & secundo Jacobi, about the Union of both Kingdoms, the Judges refused to give their opinions upon several Questions put to them, desiring to be excused for that such things did not belong to them, but were matters fit for Parliament only. My meaning is to infer from hence that since it is pleaded here to be according to the Law, and course of Parliaments, and Mr. Attorney hath acknowledged it, that now your Lordship is foreclosed from further meddling with this Case, it appearing upon record to be a matter whereof you cannot judge.  
But the objection is, that admit the Impeachment should be taken to be according to the course of Parliament, yet it is so general that the Court cannot judge upon it: I answer, that 'tis evident the Impeachment was not for nothing, 'tis most certainly to be presumed, that such a body of men as the House of Commons would not Impeach a man for no Crime. Fitz Harris Avers by his Plea, that it was for the same Treason, for which the Jury have found this Bill against him: Now this Averment makes the matter as clear to the Court, as if the Impeachment had mentioned the particular Treason.  
Every days Experience shows that Averments, which are consistent with the Record are good, and are of necessity to clear the Fact to the Court, so that the Judges may give a judgement upon it. If the Defendant will plead a Recovery in a formal action, in bar to an action of Debt, or other action it is not enough for him to set out the Record, he must Aver also that the Cawseses of the action are the same, and that it is the same person, who is mentioned in one Record, and in the other Records, and this shows that the most special and particular are of no use without Averments.  
My Lord, there is a Case that I find directly to this purpose, which goes further than the Case I did but now put, and that is, 26. Assiz. pl. 15. It is also mentioned in Stamf. Pla. Cor. 105. Where a man was indicted for the Murder of I. S. and he pleads a Record of acquittal, where he was indicted for the Murder of I. N. But he Avers that I. S. in this Indictment is the same person with I. N. in the other Indictment, and that was adjuged a good Plea, and the party was acquitted, though the Averment there seemed to be a contradiction to the Record. This makes it clear, that if an Averment may consist with the Record, the Law will allow it. In Mores Rep. 823. Pl. 1112. The King against Howard, it is said that if an Act of Parliament be certified into Chancery, no Averment lies to say this is no Act of Parliament, because the Commons did not assent to it; but if it appears in the Body of the Act, that the Commons did not assent as if it was ordained by the King, and Lords, and without mentioning any assent of the Commons: There it may be Averred to be no Act, for this being a matter consistent with the Record, is Averrable: And so it is agreed in 33 H. 6. fol. 18. Pilkingtons' Case.  
Now Mr. Attorney has his Election here (as it is in all such Cases) either to plead Null tiel Record, and then we must have produced it, and if we had failed, it had been against us, as to the whole Plea. Or if he would not deny the Record (as indeed he could not) he might have taken issue upon our Averment, that it was not for one and the same offence; but he has Demurred and thereby confessed there is such a Record, and confessed the Averment to be true that he was Impeached for the same Crime, and that he is the same person, and now it is plain to your Lordship, that I stated the Question right at first.  
My Lord, I shall cite you one Precedent out of Rast. Ent. fol. 384. and 385. Where a man was Indicted and acquitted, before certain Justices, and being Indicted de novo  Lord Chief Justice. 
It is Title, Gaol delivery, is it not?  Sir, Fran. Win. 
Yes, My Lord, it is: And he pleads, that he was Indicted coram aliis Justitiarlis, for the same felony and upon this Plea the entry is made, Quia testatum est hic in Cur. in praefat●s Justiciarios, that the said party was acquitted of the felony, in manner and form as he had alleged in his Plea. Therefore 'tis adjudged, that he should be discharged and go without day. My Lord, I do not altogether rely upon this Precedent for Law, but I find it in that book.  
Now My Lord, I shall offer some Reasons in general: First that when once the Commons in Parliament in the name of themselves, and of all the Commons of England, have lodged an Impeachment against any man, it seems to me against natural Justice, that should ever any Commoners afterwards come to try or judge that man for that fact. I speak this because every man in England, that is a Commoner, is a party to the accusation, and so we have pleaded by such an Impeachment, a man is subjected to another sort of Trial, Magna Charta says that every man shall be tried by his Peers, or by the Law of the Land. And by the Law of the Land, there are several sorts of Trial, some by Juries, others not by Juries. This is one of those sorts, where the Trial is by the Law of the Land, but not by his Peers; for it would be hard that any man should come to Try or to give judgement upon a person, who hath been his accuser before. And in effect hath already given his judgement, that he is Guilty by the accusation of him, and so stands not indifferent. By this means the Trial by Jury is gone: And the Lords, who are the Peers of the Realm, are Judges in point of fact, as well as Law. Here is an enormous offence, against which all the Nation cries, for so they do in the Impeachment: Then says the Law, it is not fit that you should try him, who are parties, but the Lords are the proper Judges, they shall Try him per testes, and the Commoners may come in as Witnesses, but not as Judges.  
My Lord, another reason is this, that if an Appeal of death, or any other Appeal, were depending before the Statute of 3 H. 7. cap. 1. The King could not proceed upon an Indictment for the same fact, because the King as the Common parent does only take care that such Offenders should not go away with Impunity, but the preference was given to the person more particularly concerned, and the King's Indictment must stay till the year and day were out, to see whether they will proceed in their suits: And so says My Lord Chief Justice Hales, in his Pleas of the Crown, 2442, 45. Then à minori admajus does the Law so regard the interest of the Wife or the Heir, etc. in their suit, and has it no regard to the suit of all the Commons of England? For manifestly an Impeachment is the suit of the people, and not the King's suit.  
That's the 2. Reason; another Reason I shall urge, is that which was touched by Mr. Williams: Suppose this man should be tried here, and be acquitted, Is it to be presumed that he can plead this acquittal in Bar to the Impeachment before the Lords? My Lord, I believe there is no considering man in England, that has regard either to the Jurisdiction of Parliament or to the Nature of the suit, will affirm that it would be a good Plea; and that he could bar the great Court of the Kingdom, from proceeding against him, by saying he was acquitted by a Jury in Westminster Hall, after the suit was first well commenced in that Court.  
My Lord, I say with reverence to the Court, that should you proceed in this Trial, it may fall out that contrary to a Fundamental Rule of Law, a man shall be twice put in danger of his Life, for one offence, which by the Law he cannot be; and therefore I urge that as a reason, why you cannot proceed here on this Indictment.  
My Lord, I will now mention two or three Precedents, which will prove that this Impeachment is according to the Course and Law of Parliaments, though it may seem needless, after the King's Learned Council have agreed it.  
My Lord, I shall first mention the Case of Michael. de La Poole, Rot. Par. 18 or 28 H. 6. n. 18 He was a very great man, and came to the House of Lords voluntarily, and said there was a Rumour that he was Guilty of horrible things.  Lord Chief Justice. 
Where did you take this Case, out of Cotton? it is mentioned there; But I have seen a Copy of the Roll.  Sir Fran. Win. 
Yes My Lord; There upon the Commons pray he may be committed upon his own confession, and that the thing being Debated in the House, the Lords said we know not what was meant by those words, horrible things; it may import only Misdemeanours, if it had been said Treason, we had known how to have proceeded thereupon: And thereupon within a few days after the Commons came and accused him of Treason: and there 'tis said that the Course of Parliament, is to find out the Truth by Circumstances, and such degrees as the Nature of the thing will bear, and they are not confined to the strict rules of other Courts. I will not cite any more ancient Cases, though there are many to be found of general Impeachments; for we are not disputing what is the right and course of Impeachments, which is confessed, upon the pleading; but we have had several Cases of late, the Earl of Clarendon was Impeached generally, and the Commons took time to bring in their Articles: and I have had the experience in 3 or 4 a Parliaments wherein we have been pretty well busied with Impeachments, though we have had no great success in them; That though the Commons may if they please, carry up particular Articles at first, yet the Law and course is for the Lords to receive the general Impeachment, and the Commons say that in due time they will bring in their Articles: So it was done in the Case of the▪ Popish Lords, some particular Member was appointed to go up and Impeach them of High Treason in General; and in that Case though the Parliament was Dissolved, before any Articles sent up; yet afterwards in the next Parliament, the Articles, upon the former Impeachments were sent up, and received, and My Lord ●●●fford since executed, upon his Conviction, upon that Impeachment; yet Indictments were exhibited against them, before ever any Impeachment, was sent up by the Commons, and preparations were made for their Trials. But from that day to this, there hath been no attempt to Try them upon their Indictments, though there have been several Intervals of Parliament.  
Our Case is stronger than that of the Lords, for in the Case at the Bar, the first suit was in the House of Lords, by the Commons; whilst in the other Case, the first was the suit of the King, by Indictment, and yet by a subsequent Impeachment, that was stopped, and the Lords continue yet Prisoners in the Tower. Our time hath been so short that we could not see the Copies of Orders, which we might otherwise have made use of, for maintaining this Plea; we sent to the House of Lords, but the Officers were out of Town, and we could come at the sight of nothing there, we have been told the opinion of the Judges was delivered at Council▪ concerning these very Lords, that the Impeachments being lodged in Parliament no other prosecution could be against them, till the prosecution of the Commons was determined. So far the Courts below have always been from meddling, with the Jurisdiction of Parliament, that even many times in Questions upon Acts of Parliament, they have gone up to the Parliament, to know what was meant by it: And I remember it was said by the Court in that Case of My Lord of Shaftsbury, where it was agreed by all, that the Commitment was too general, for it was only for a Contempt; whereas the Crime ought particularly to appear in the Warrant, that it being in a Case of Commitment, by the Parliament, (at least while that Parliament was continuing) they ought not to meddle with it, nor could they inquire into the formality of the Warrant.  
My Lord, I must mention one thing touching the Case of My Lord Hollis, which was cited by Mr. Williams, and I have but a word to add: It is in the Appendit to the first part of Rushworth's Col. and also in Croke, Car. fol. 181. It was there pleaded to the Jurisdiction of this Court, that it was a matter done in Parliament: In our Case his pleaded that an Impeachment is depending in Parliament, that was but a prosecution for a Misdemeanour, this is a Case of High Treason; it fell out in that Case, the Court here did adjudge, that the Information did lie but upon a Writ of Error, it was agreed by the Lords unanimously, that the judgement was Erroneous, and that the Parties should be restored to all which they had lost, by reason of it; but if this man should lose his Life by your judgement, what help would there be upon a Writ of Error? The danger of such a thing requires great consideration, and it would be of fatal consequence, if the Lords should hereafter adjudge that this Court had no Jurisdiction.  
As for Mr. Attorneys objection to day, that we have not set forth actually, that there was any Impeachment; I do confess I was a little startled at it; for the words of the Plea are, that Edward Fitz-Harris, by the Knights, Citizens, and Burgesses was Impeached, which Impeachment is in force. I do not know how in the world we could have thought of more express words, than to say he was Impeached, and that that Impeachment is in full force as appears by the Record.  
For the other Objection, the other day (for we would mention all, how little soever they deserve an answer) that the King may choose in what Court he will sue; it is agreed when it is at his own suit, but this is not so but at the Commons suit, and can be no where else prosecuted, than where it now depends. This is the Method and Course of Parliaments we say, and that the Method and Course of Parliaments is the Law of the Land; your Lordship will take notice that it is so.  
To conclude as this Plea now stands, the Demurrer confessing the matter of it, it cannot be overruled without deciding, whether the Lords can proceed upon such General Impeachments, and whether the Commons can Impeach in such a General way. We submit, the whole to your judgement, it is a Case deserves great Consideration, as being of great weight and Moment, and highly concerns the Jurisdiction of the Lords, the Privileges of the Commons, and the Rights of all the people of England.  Mr. Wallop. 
May it please your Lordship, There are in this Plea three Principal Parts upon which it turns, which are expressly alleged. First, That Fitz-Harris before the Indictment was according to the Law and Custom of Parliament impeached of High Treason, and this I humbly conceive is confessed by Mr. Attorney upon the Demurrer. The Second thing is, That this Impeachment, be it as it will, general or particular, does remain in full force and virtue. This is plainly alleged and demurred to, and so confessed by Mr. Attorney; for all things well alleged and pleaded, are confessed by the Demurrer. The Third great Point and Hinge upon which it turns is this, That the High Treason mentioned in the Indictment, and the High Treason for which he was Impeached in the House of Lords, is one and the same Treason. This we have plainly averred, and this Mr. Attorney hath likewise by his Demurrer plainly confessed, as we humbly conceive.  
For the two former Points there is no difficulty in them, and therefore I shall pass them over: 'Tis this third matter which I take to be the only point in the Case, and if we have well averred it, and can by Law be let into such an Averrment, than I hope your Lordship and this Court will not pretend to go on in this Case. They Object and say because he is Impeached of High Treason generally, without naming any particular Treason, that cannot be averred to be the same, and a Demurrer does never confess the truth of that which by Law cannot be said; but if it may be said, and is said plainly, than the Demurrer confesses it.  
My Lord, I humbly conceive this matter is well averrable, and we have taken a good Averrment. I grant that a repugnant and an impossible Averrment cannot be taken, as to aver a Horse to be a Sheep, which is apparently repugnant and impossible, and in that Case a Demurrer can never confess the truth of that which appears impossible to be true. But, My Lord, if there be no Impossibility nor Repugnancy, nor Contradiction in the Averrment between the matters that are averred to be the same, as there is not between that which is but generally expressed, and that which is more specially alleged, where all may well stand together, and the one includes the other, and needs only some farther explanation, it is not only allowable to avert it, but most proper and in such case only necessary. For, quod constat cla●●●●●● debet verisicari, in this Case it is not necessary that it should appear to the Court upon the view of the Indictment and Impeachment, that the matter contained in both is the same▪ but it is sufficient that it be provable upon an Issue to be taken. And so much is admitted by the Judges in Sparries' Case, Co. 5. rep. 51. that if there be convenient certainty which may be put in Issue, it is sufficient, and consequently not necessary to appear at the first, but upon the event of the issue afterwards to be tried. And if they intent it otherwise, I confess I understand them not. It is true, it must appear to the Court either at the first opening, or upon an Issue subsequent to be found: And, My Lord, if this matter may appear at first or at last, and the thing is possible to be proved, than we are well enough: In Corbet and Barnes Case in the first Croke, fol. 320. a Battery supposed to be in London, and a Battery supposed to be in Herefordshire were averred to be one and the same Battery, which naturally is impossible, yet being transitory and therefore supposable to be done in any County, such an averrment is allowable, though it seemed contradictory and could not appear to the Court by comparing the several declarations to be any way the same: And there being a Demurrer for that Cause in that Case, the truth of the averrment was ruled to be confessed by the Demurrer: And so hereby the Demurrer, the truth of the suggestion that the Treason in the Impeachment, and the Treason in the Indictment is one and the same, is confessed.  
By taking this Averrment, we offer them here a fair Issue, an Issue of Fact tryable by a Jury, wherein the Attorney General might have joined with us if he had pleased; but refusing that, and having demurred, and thereby confessed what we have alleged, it must be taken to be true as if found by a Jury. And, My Lord, That this matter is properly averrable and tryable, I think 'tis plain, it being a Question of Fact, which is properly triable by the Country; and if they had taken Issue upon that, we might have gone to a Jury where the matter would have been easily proved. For upon Evidence given, the Jury might fairly take into consideration the reading of this very numerical Libel set forth in the Indictment, and the particular and special debates of the House of Commons thereupon: And that upon those very Debates the House voted that Fitz-Harris should be Impeached for matters contained in that Libel. And that upon those Votes the Impeachment was carried up to the Lords: This is Evidence sufficient, that the House of Commons did intent to accuse him of the same Treason contained in the Indictment, which proves the Issue, that is, that the Treason contained in the Impeachment is the same with that contained in the Indictment: neither is this to put the Intention of the mind or secret thoughts of the heart in Issue, which is against the rules of Law; but to put them into a way of proof, which well stands with the rules of Law, which upon the general, or other collateral Issue may well be inquired of by the Jury. As in an action quare canem inordacem defendens scienter retinuit; Here [Soienter] is not directly issuable, but it is provable, and must be proved upon the general Issue. So in the present case the intention of the Commons upon the Issue offered by us, and refused by the Attorney General, might, and aught, and would have been proved, and, without doubt, found by the Jury. Neither is this general Impeachment such a notional thing as the other side would pretend; but 'tis as if they should say, We do charge him to have Committed certain Crimes that are Treason. Now whether the Crimes they say he had committed, and for which they Impeached him are the same with those for which he is Indicted, is a good and proper Issue. And if it appear to the Court to be the same, you will certainly yourselves take off your hands from these proceed. This is all I shall say as to the Averrment. And if we can well get over that, I take it, all the rest is well enough.  
But again they say the Impeachment is too general, and no man shall be put to answer to such a general Accusation.  
And I say so too, neither shall Fitz Harris be put to Answer to it without special Articles; yet he cannot quash the Impeachment for this Cause, as he might an Indictment, which shows the difference betwixt an Impeachment, and an Indictment, which always contains the special matter, and without which it might be quashed, and made no Record. But hereby the Law of Parliament such general Impeachments are held good; And Articles are usually brought in afterwards, and after those additional Articles, which cannot be in the course and way of Indictment; and therefore we must take the Impeachment as we find it, and since it stands against us as a Record, though this general, we may, and must Plead it in the same generality; having no way to make it no Record, as we have in case of such a general Indictment.  
So then this being an Impeachment according to the Course of Parliament, it is well lodged in the House of Lords where it only aught to be Tried, and we must Plead it as we may, and as we find the Case to be: And having averred the Crimes to be the same, we have done what we could, and therefore, Enough.  
And that a general Impeachment without Articles is a Bar to any Indictment for the same matter, was resolved by all the Judges, as I am informed, in the Case of the Lords in the Tower, who were all Indicted for Treason, either in the King's Bench, or before Commissioners of Oyer and Terminer: And afterwards [5. Dec. 78.] generally Impeached before the Lords in Parliament; and no Articles exhibited till, 3. April 79. And yet in the mean time it was resolved at the Council Table by all the Judges there attending, that after the general Impeachment, before Articles, they could not be proceeded against upon those Indictments, though the Parliament wherein they were Impeached, was dissolved.  
And that was a stronger Case than this of Fitz Harris; For there the Inferior Court was first possessed of the Cause, and yet the general Impeachment closed up the hands of the Court: But in this Case, the Superior Court the Parliament was first possessed of the Cause, which cannot be taken out of their hands by the Inferior Court.  
There is a farther difference betwixt an Impeachment in Parliament, and an Indictment: That in an Indictment, which is always as particular as Articles upon an Impeachment, you cannot Plead altar foitz Arraigned, but you must Plead either altar foitz Convict, or Acquit, as appears in Sir William Wishipoles Case, Cron. 1. 105. But in an Impeachment in Parliament, the other side will acknowledge that after Articles exhibited there can be no Proceed upon an Indictment for the same offence, although the Defendant in the Impeachment be neither Convict, or Acquit: Otherwise you may bring back all the Lords in the Tower to the King's Bench to be Tried, which Mr. Attorney will not I suppose Attempt.  
And it is observable in the Case of Sir William Wishipole; That to avoid the doubt that the Party there should not be questioned, both upon the Coroners Inquest, and the Indictment of Murder, it was Ruled by the Court, that the first should be quashed as insufficient; so careful were the Judges to avoid double vexation, in a Case, compared with this, of no great import.  
I shall say no more to the Case, but only observe how scrupulous the Judges have been to touch upon a Case, where they had the least suspicion or jealousy that the Parliament had, or pretended to have a Jurisdiction, or were possessed of the Cause. I am sure I could never get any thing by any Labours of mine in those Cases; But upon all such Motions they were so ware of what might be the Consequence, that they would always worship afar off, and would never come near the Mount. They would ever retire when they came but near the Brink of this Gulf.  
Now my Lord, If you retain this Cause, in consequence you Charge yourselves with the blood of this man, wherein if you proceed regularly and according to Law, all is well; But however, by over ruling his Plea, you take upon you his blood one way or other: Through which you must wade to come at the Cause. And whether it be adviseable to come at it upon these terms, I leave it to your Lordship's wisdom to consider.  Mr. Pollexfen. 
My Lord, I shall not make any long Argument, there hath been so much said before me. But I would fain come to the Question if I could, for I must confess afterall, I cannot see what the other side make the Question; Mr. Attorney was pleased to say that both for the matter and form he objected against our Plea: But if for the matter it be admitted to me that an Impeachment in Parliament for the same matter will out this Court of Jurisdiction; I will say nothing at all of it, for I apprehend that is not then in Question.  Ld. Ch. Just. 
No, not at all.  Mr. Pollexfen. 
Then the matter seems to be agreed, and only the manner and form of the Plea are now in Question. And for the manner they except to it in these particulars. First, they say 'tis not alleged that there is any Impeachment upon Record; now I confess form is a subtle matter in itself, and it is easy for any man that reads other men's words and Writings if he will, to make what Construction he will of them even Nolumus to be Volumus, but I know the Court will not so do, But for an Answer to the Objection I think it is as strongly and closely penned as I can tell how to pen any thing, he was Impeached Quae quidem Impetitio etc. What can that Quae quidem signify but the Impeachment that was just mentioned before? But what they mean by this to say this is not the same Impeachment when the Words are positive that 'tis the same I must confess I cannot Fathom.  
My Lord, there was another thing spoken the last day, but they have not mentioned it now; if there be any thing stirred in it, I hope your Lordship will be pleased to hear us before you give your Judgement in it, That it was not said to be sub pede sigil●i, but I know they won't insist upon it therefore I say nothing to that.  
But the great Question now is; whether or no this be not too general, the alleging that he was Impeached in Parliament, and not saying how or for what Crime, though there be an Averment afterwards that 'tis for the said Crime, Whether this be not so general as that therefore this Plea should be naught.  
First, for this of the Averment, I take it with submission let the Crimes be never so particularly specified in the Record that is pleaded, and in that upon which the party is brought in Judicature yet always there must be an Averment, and that Averment is so much the substantial part of the Plea, That let the matter never somuch appear to be the same without an Averment it would be naught, And it must come to be tried per pa●●, whether the offence be the same or not; for if a man plead one Indictment for the murder of I. S. to another Indictment for the murder of I. S. tho' they bear the same Name, he must Aver they are one and the same Person, For else Non constat to the Court,▪ but there may be two I. S. Therefore all Averments are still the substance of the Plea, to bring the Identity of the matter into Judgement, and are to be tried by the Country, so then the Objection to the Generality is not an Objection to the substance, but rather an Objection to the form on their side, Because the substance is alleged in the Plea that it is for the same Treason, which substance▪ if Mr. Attorney had thought not fit to▪ have demurred to but taken Issue on, must have been tried per pais.  
Having thus spoken to the Averment, My Lord, Let me speak to the general Allegation that he was Impeached for Treason, and not saying particularly what the fact was.  
My Lord, If they admit the Law that an Impeachment in Parliament does suspend or take away the Jurisdiction of this Court than they have admitted a great part of the fact and then the matter in Question will be what Impeachment in Parliament it is that will take away the Jurisdiction of the Court, and there can be but two sorts; the one at large where the whole Offence is specified; the other not at large, but only in general Words, the Knights, Citizens and Burgesses in Parliament Assembled in the Name of themselves and of all the Commons of England, do Impeach such an one of High Treason. Now my Lord, if so be such Impeachment in Parliament be a good Impeachment, then have We, I think, the most plain Case pleaded that can be, as plain as the Fact, that this is an Impeachment in Parliament, and then this Court is outed of its Jurisdiction.  
They that have gone before have said which I must pray your Lordship to remember, That the Court and we are to take notice of the proceed in other Courts, as other Courts are bound to take notice of the proceed of this, Then I would suppose in other familiar Cases, there is generally (as 'tis true in Sparry's Case) the Writ or the Declaration which does in all civil Causes set forth the particularity of the thing in Question, yet in some Cases we are sure it does not do so, but the Course and practice of some Courts admits general proceed. Now wherever that is so, the party cannot mend himself by making their Course otherwise than it is, For he must not say it is more particular than the Course of the Courrt does make it, Therefore he hath no other way by the Law to bring his matter on, and help himself, but by an Averment that 'tis the same, I will suppose a Case of such a Nature as this, a man brings an Account in London upon Concessit Solvere and he does not particularise in the Count any thing what or how his Debt did arise, But after he brings another Account or delivery aspecial Declaration in an Account of Debt shall not I because the first Declaration is in general Words, Aver, that this is the same matter that he sued for by the Concessit Solvere, which he now sues for in this particular Declaration: Or suppose a man in this Court does bring an Account for divers wares and Merchandises sold and does not express any particulars, but that he was indebted, in general Words for Wares sold, and afterwards he comes and brings another Account, and says it is for such and such Wares, so much for, Cloth, so much for Wine, etc. tho' his first Declaration be in general not expressing what the Wares were, and the last is particular, shall not I come and plead in Abatement to the second Declaration, that the first and second were for one and the same thing. Suppose again an Indictment of Barrelry be found against a man which is an Offence that is only general and hath no particulars alleged in the Indictment, Should not a man that is the second time Indicted come and say this is one and the same. My Lord, under favour in all these and such like Cases the Law must be Governed by its own proceed, and take notice of the Nature of the things depending before the Court. And if so be upon Consideration of the Nature of the thing, there is as much of certainty set forth as the Case will admit and is possible to be had, we must permit the party to plead as he can, and help himself by the Averment.  
Then my Lord, the Question is whether an Impeachment generally in Parliament, without particularly setting forth for what, be a good Impeachment there or no. If they say it is not, than the bottom of the Plea is naught, and all is quite gone, but if they say it is, than I have Pleaded my matter as it is? For I cannot say that that is particular or make that particular that is not, and I have done all that is possible for me to do in my Case. I have Pleaded what is in the Record, and as 'tis in the Record, from which my Plea must not vary, and I have Averred 'tis for the same matter, and you have Confessed it by the Demurrer.  
My Lord, I would not entangle the Question, but I must Confess I do not see how they can extricate themselves out of this Dilemma, if they do admit a General Impeachment is a good Impeachment. Then there are fresh Instances of this considerable in the Case, as that which hath been particularised of the Lords in the Tower, and of the Opinion in February of the Judges in their Case. For in the beginning of December were those Lords Indicted, and after, on the 5 th'. of Dec. the House of Commons taking it into their Consideration, that there was a Commission going out for an High Steward with an intent to bring them to Trial before the Peers they, purposely to have the Carriage and Prosecution of this great and horrid Treason, and take off the Prosecution upon the Indictment, do Impeach the same Lords, and there the Impeachment is just the same as this in our Plea of High Treason, but not of any particular Fact adding only of other Crimes and Misdemeanours, which is as general as can be. Now my Lord, the Judges did take so much Notice of it, that though the Parliament was Dissolved before the particular Articles were carried up to set forth the particular Offence. Yet in February following (some of the Judges are here, and they will rectify me if I be mistaken) their Opinions being asked about it at the Council Board upon the Petition of the Lords to be either Bailed or Tried, they were of Opinion that this Impeachment, though thus general, was so depending in Parliament that they could not be Tried. So that I think the Proceed in Parliament are of that Nature, that if you will meddle with what they do, you will take notice of their Method of Proceed as you do of other Courts.  
Why then my Lord, if this be so, how is it possible for us to do better? We have Pleaded as our Fact is an Impeachment of High Treason, What would they have had us to do, or wherein is our fault? What would they have had us said? We were Impeached of any High Treason so and so particularising, how can that be? There is no such thing. Then they would have said Nul. Trel. Record. And we must have been Condemned for failing in our Record, than indeed we had been where they would have had us; But having done according to our Fact, if that Fact be such as in Law will out this Court of Jurisdiction, I see not how it is possible we should Plead otherwise, or what Answer they will give to it.  
My Lord, I will meddle as little as I can with what hath been said, they have mentioned that it is a Case of an high Nature, and this Impeachment in Parliament they will look upon it as the Suit of all the people of England, why then my Lord this must needs be agreed to me, if this Impeachment in Parliament be in the Nature of an Appeal; Surely an Appeal does suspend the Proceed upon any Indictment for that Fact, which is the Case expressly in my Lord Dyer, fol. 296. Stanley was Indicted of Murder and Convicted; after he was Convicted, and before any Judgement, the Wife of the Party Murdered brought her Appeal, than came they and moved for Judgement; no said the Court here is an Appeal brought, and they could not go to Judgement till that Appeal was determined. So the Stat. of 3. H. 7. Ca 1. and Vauxes Case 4 Report. fol. 39 an Appeal of Murder, the Party Convicted, before Judgement the Petitioner in the Appeal did die. Then an Indictment brought and this Conviction Pleaded in Bar of that Indictment, and Adjudged to be a good Plea, but then there was a fault found in the Appeal, upon which the Conviction on the Appeal, was void in Law, and they went on upon the Indictment. This is to show that if this be of the Nature of an Appeal, than ought this Suit first to have its Course and Determination before your Lordship proceed on this Indictment.  
But my Lord, whether it be of this Nature or no, is a matter we know where under great Controversy, and whether your Lordship will interpose in that great Question, or whether it comes in Judgement under this Question, you will do well to Consider, for 'tis a matter of Parliament and determinable among themselves, not in the Courts below, nor have ever Inferior Courts taken upon them to meddle with the Actions of the Superior Courts, but leave them to proceed according to their Laws, and if that be done in any Case there will be as much regard had in this great Cause to the Court of Parliament as in others.  
Besides the Authorities Cited out of my Lord Coke and others, I would Cite one more, and that is Cotton's Records, 5 H. 4. fol. 426. the Earl of Northumberlands Case. He comes and Confesses himself to be Guilty of an Offence against his Allegiance, the King delivered his Petition to the Justices and would have them to Consider of it, No said the Parliament 'tis matter of Parliament, and the Judges have nothing to do with it, The Lords make a Protestation to this purpose, and then they went on themselves and Adjudged it to be no Treason. There is only that one Record more which has been often Cited, and that is, Rot. Parliamenti 11 R. 2 pars. 1. N. 6. In this Parliament the Lords Spiritual and Temporal Claimed the same Privilege: My Lord, I only offer these things with what my Lord Coke says hath been formerly thought prudence in the Judges to do.  
So that I hope that if the matter be good the Form is as good as the matter can be put into, and therefore we hope you will allow us the benefit of it.  Mr. Attorney. 
May it please your Lordship, I am of Counsel in this Case for the King, and notwithstanding what hath been said I take it with Submission that this Plea is a naughty Plea, as a Plea to your Jurisdiction, and there is no matter disclosed therein that we can take a good Issue upon.  
The great Substance of the Arguments of these Gentlemen Assigned of Counsel for the Prisoner, is against the Prisoner. For the great matter of their Arguments was lest this Gentleman should escape (which Arguments in several Instances they have used to support the Plea) but the Prisoner Pleads this Plea to the purpose that he might escape. Therefore if these Gentlemen had taken Instructions from him, surely they would have used Arguments to the same purpose that he might escape.  
My Lord, they object we have admitted here that there is an Impeachment depending, that we have admitted 'tis for the same matter, and that we have admitted the Parliament to be in being, but no Fact is admitted that is not well Pleaded. Indeed if that be admitted that the Parliament is still in being then it goes very hard with us, and if not so admitted the whole force of Mr. William's his Argument falls to the ground. But I say my Lord, with Submission to this matter that the beginning, continuance, Prorogation, Adjournments, and Dissolution of Parliaments are of public Cognizance, and the Court ex Officio will take Notice of them, so that they need not be Averred. And so is the 41. of the Queen, the Bishop of Norwich's Case. A Private Act of Parliament was Pleaded, and the day of the Parliament mistaken, there was a general Demurrer, and it was resolved that it was naught, and Judgement given against the Bishop though no Exception was taken in particular, because the days of the beginning and ending Parliaments are of public Notice, and the Judges take notice, when a Parliament is in being and when not. That's a sufficient Answer to that matter.  
Then for those many Cautions that have been given you, what a difficult thing it is for two Jurisdictions to interfeir, Mr. Fitz Harris is much concerned in that matter who hath forfeited his Life to the Law as a most notorious Offender that certainly deserves nothing but punishment, yet he would fain live a little longer, and is much concerned that the Judicature of Parliament should be preserved. If it be not Law he shall not be oppressed in it, but if it be Law fiat Justitia. Certainly no Consideration whatsoever ought to put Courts of Justice out of their steady Course, but they ought to proceed according to the Laws of the Land.  
My Lord, I observe 'tis an unusual Plea, and perhaps they had some reason to put it so. It concludes si curia procedere vult, I wonder they did not put in aut debeat, that is the usual form of such Pleas for you have no Will but the Law, and if you cannot give Judgement you ought not to be pressed in it, but it being according to Law that great Offenders and Malefactors should be brought to Condign punishment, we must press it whatsoever the Consequences are. And if we did not take it to be the Interest of all the Kingdom, and of the Commons too as well as of the King, my Lord, I should not press it, but it is all their Interest that so notorious a Malefactor that hath certainly been Guilty of Treason in the highest Degree, and that for the utmost Advancement of the late Popish Plot, should not escape or the truth be stifled, but brought into Examination in the face of the Sun that all men may see what a Villainous thing hath been Attempted to raise up the whole Kingdom against the King, but they say if it be not Law you will not proceed, it Ties your hands. But with Submission they have not given you one Instance to make good what they say. Many things have been that a Plea pending in a Superior Court is Pleadable to the Jurisdiction of an Inferior Court; for my Lord, that is it we put upon them to show if it had been Pleaded in Abatement it would have had its weight and been considered of, as in Sparry's Case where it was no Plea to the Jurisdiction.  
Put the Case it had been a good Impeachment, and he had been Arraigned upon it and acquitted, If he had afterwards come to be Indicted in this Court, and the Prisoner will not plead this in Bar but to the Jurisdiction of the Court, it would not have been a good Plea? But he had lost his Advantage by mispleading: If then an Arraignment, and an acquittal or Conviction thereupon not a good Plea to the Jurisdiction; then certainly an Impeachment depending singly cannot be a good Plea to the Jurisdiction. This Court hath a full Jurisdiction of this Case and of this Person, both of the Crime and of the party who is a Commoner and not only to find the Indictment, but to proceed to Justice, and this you had at the time of the fact Committed: For certainly we need not put Cases for to prove that the King's Bench especially since the Statute for trying Treason beyond the Seas hath an universal Jurisdiction of all Persons and Offences. Pray then what is it that must out this Court of their Jurisdiction? For all the Cases that have been, or can be put about matters which are not originally examinable in this Court, make not to the matter in Question, there 'tis true the Court may be by Plea outed of its Jurisdiction as at Common Law, where a fact is done super altum mare, and so Pleaded, that puts it out of the Courts Jurisdiction, and that was my Lord Hollis and Sir J. eliot's Case, and so that was my Lord Shaftsbury's Case too, the fact was done out of their Jurisdiction, and that may be Pleaded to the Jurisdiction, because they had no Original Jurisdiction of the fact, but where the Crime and the Person were absolutely within the Jurisdiction of the Court, and the Court may Originally take Cognizance of it, as this Court had of the present Case, I would fain know what can out that Jurisdiction less than an Act of Parliament, I will be bold to say the King by his Great-seal cannot do it, nor can an Act of either House, or both Houses together without the King out the Jurisdiction. To say their proceed ought to be a Bar, that is an other Case, the party hath his Advantage and may plead it in abatement or Bar as the Case requires, for if there had been an Acquittal or Conviction, the party could not plead it to the Jurisdiction, Therefore for those Cases they put when you come to examine the reason of them you see how they stand. viz. that the Court had no Original Jurisdiction.  
My Lord Shaftsbury was committed by the Lords for a Crime in that House, a Contempt to that House; he is brought here, and it appears to be a Commitment in Execution. My Lord, that was out of your Jurisdiction; and if you had bailed him, what would you have done? would you have bailed him to be tried here? No, you could not do it, and therefore you proceeded not in that Case. And so in the other Cases; for there is not one of their Cases that have been cited of the other side, but where it was out of the Jurisdiction of the Court originally, and not at all within it. As for the Case of the five Lords in the Tower, because they say it will have a mighty influence upon them, and they put the Case, That there was in December an Indictment, and afterwards an Impeachment from the Commons; and they cite some Opinion given at the Council-board, which I hope these Gentlemen will not say was a Judicial Opinion, or any way affects this Cause: But for that, my Lord, I observe the Lords took care that these Indictments should be all removed into the Lord's House; so they did foresee that the King might have proceeded upon the Indictments, if they had not been removed thither. But our Case now is quite another thing: for those Lords were not fully within your Jurisdiction. You cannot try a Peer of the Realm for Treason: and besides, the Lords have pleaded in full Parliament, where, by the Law of Parliament, all the Peers are to be their Judges; and so you can't out them of that Right. And the reason is plain, because thereby you must do them an apparent prejudice; they having pleaded there, all the whole Peerage are their Tryers. But upon Trial before Commissioners, they must have but a select number of Peers to be their Tryers. But in none of those Cases hath any Judicial Opinion been given: for the Case of 11 R. 2. first cited by Sir Fran. Winnington, and then by Mr. Pollexfen, a Declaration in Parliament, That they proceeded according to the Law of Parliament, and not according to the Common-Law, nor according to the practice of Inferior Courts; that will be nothing to our purpose at all, that was in case of the Lords Appellants; a proceeding contrary to Magna Charta, contrary to the Statute of Edw. 3. and the known Privilege of the Subject. But those proceed had a countenance in Parliament; for there was an Oath taken by all the Lords in Parliament, That they would stand by the Lords Appellants: And thereupon they would be controlled by none, and they would not be advised by the Judges, but proceed to the trying of Peers and Commoners according to their own will and pleasure. And between that time of 11 R. 2. and 1 H. 4. see what havoc they made by those illegal proceed; and in 1 H. 4. you will see, that these very Lords were sentenced, except one or two of them who were pardoned: and then it was expressly resolved by Act of Parliament, That no more Appeals of that nature, nor any Appeals whatsoever, should be any more in Parliament. And if so, these Gentlemen had best consider how they make an Impeachment like an Appeal; for in that Statute 'tis said, There shall be no more Appeals. And the Petition upon which this Act is founded, runs thus: They pray that no Impeachment or Appeal may be in Parliament. But when the King came to make the Grant, he grants only for Appeals, and principally to out those Lords Appellants who were condemned by that very Parliament: So that 'tis a very pretty matter at this time of day to liken an Impeachment to an Appeal.  
But, my Lord, the other great point is this: There is nothing at all certainly disclosed to you by this Plea; therefore there is nothing confessed by us, only the Fact that is well pleaded: therefore I shall come to consider what is said by them as to the form of it. They say, my Lord, that they have pleaded it to be secundum legem & Consuetudinem Parliamenti; and if that be sufficient, let them have said what they would, that would have healed all. But I say, my Lord, with submission, they must disclose to you what is the Law and Custom of Parliament in such case, or else you must take it upon you upon your own knowledge, or you cannot give Judgement. 'Tis very well known what this Lex & Consuetudo Parliamenti is▪ no person versed in the Records, but knows it, that by course of Parliament a Message goes up with a Declaration to impeach the party generally; and then after, there are Articles or a Bill of Impeachment produced. Now till that be produced, sure there is no Counsel of the other side will say, that ever the party can be called to answer. And because these Gentlemen do pretend to urge their knowledge herein, I would observe, there are three things to be considered of the Parliament; the Legislative part, the matters of Privilege, and the Judicial part proper to this Case: For the Legislative part, and matters of Privilege, both Houses do proceed only secundum legem & Consuetudinem Parliamenti; but for the Judicial part, does any man question, but that in all times they have been guided and directed by the Statutes and Laws of the Land? and have been outed of a Jurisdiction in several Cases, as by the Statute of 4 Edw. 3. and 1 H. 4. And the Lords in all Writs of Error, and all matters of Judgement, proceed secundum legem Terrae; and so for Life and Death. And there is not one Law in Westminster-hall, as to matters of Judgement, and another in the Court of the Lords above. But I will not trouble your Lordship any farther to pursue these things: But it is not sufficiently disclosed to you, that there is any such thing as an Impeachment depending there; 'tis only alleged, that he was impeached, and so much the News-book told us that he was impeached: but to infer thence that there was an Impeachment carried up and lodged for the same High-Treason, is no consequence. And then 'tis alleged, Quae quidem Impetitio, when no Impeachment is before set forth, but only that he was impeached generally. And as I observed before, a person might go up with a Message to impeach, but that cannot be said to be an Impeachment to which the party is compelled to answer; it must be an Impeachment on Record, and appearing on the face of the Record for what Crime it is; and so they ought to have set it forth.  
Now that this is too general that is alleged here, I take it the Books are very full. When a Record is pleaded in Bar or in Abatement, the Crimes ought to be set out to appear the same; and so, my Lord, are all the Precedents of Coke's Entries 53. Holdcroft and Burgh's Case, and Watts and Brays Case in 41 and 42 of Q. Eliz. Coke's Ent. 59 Wrote and Wiggs Case, 4 Rep. 45. and in Lewes and Scholastica's Case, and Dives and Manning's Case. The Record must be set out, that the Court may judge upon it; and the Record must not be tried per Pais, but by itself. But for what they say, plead it never so certainly, there must be an Averment, it must be so 'tis true; but that is for another purpose than they urge it: The reason is, because if it be for another Fact that he hath committed, he may be indicted again, though it be of the same nature; but whether of the same nature or not of the same nature, is the thing must appear upon the Record pleaded, because the Court must be ascertained that it was sufficient for the party to answer to it: for if it were insufficient, he may be again proceeded against; as if an Indictment be pleaded which was insufficient, though the party pleads an Acquittal or Conviction upon it, it will not avail him; for the Court will proceed on the other Indictment: And so is the Resolution in Vaulx's Case, and in Wigg's Case, though there was a Judgement given of Acquittal, yet he was tried again. So that, my Lord, that is one great reason why it must appear, that the Court may judge whether it be sufficient for the party to answer. And you have now that here before you, if this be such an Impeachment as they have pleaded it, as this person could not answer to by any Law of Parliament or other Court; then 'tis not sufficient to out you of your Jurisdiction: And I do think that by no Law they are or can be compellable to answer to a general Impeachment of High-Treason. And to give you authority in that, there are many might be cited, as the Cases of my Lord Stafford and the other Lords in the Tower, and so is the ancient course of Parliament; with submission, I will be bold to say, the Impeachments are all so, that ever I met with: And it appears by them, that they all conclude contra Coronam & dignitatem Regis, in the form of Indictments, laying some Overt-Acts and the special particular Crimes for which the person is impeached, as Overt-Acts for Treason required by the Statute of 25 Edw. 3. And I hope they will not say, That without an Overt-Act laid in the Impeachment, the Impeachment can be good. If then this be so general that it cannot make the Crime appear to the Court, and is so insufficient that the Court cannot give Judgement, I take it you will go on upon the Indictment, which chargeth him with a particular Crime.  
My Lord, Mr. Pollexfen does put the case of Barratry where such Averment is allowable, but that is a special, certain, and particular Crime, but High-Treason is ●ot so; there are abundance of special sorts of High-Treason, there is but one sort of Barratry, and there are no subdivisions; therefore there is nothing to be averred but the special facts that make that Barratry.  
Then there was another Authority out of the Book of Assizes cited by Sir Fra. Winnington, and greatly relied upon: A man is indicted for the murder of J. S. and afterwards for the murder of J. N. the former was pleaded to the second with an Averment that it is the same person, that is but according to the common form of Averments, to be of matter of fact: For if J. S. was known as well by the name of J. N. as of J. S. the Indictment was for the murder of the same person, and there 'tis pure fact averred. But where 'tis Essential, as this case is, that the particular Treason do appear, to say that it is the same particular Treason, and to say that matter of fact averred shall enlarge a Record, I think, is impossible to be found any where. And of all the Cases that I have seen or heard, I confess none of the Instances come up to it. For the Case in Moor, King, and Howard, cited by Sir Francis Winnington, that is an authority as expressly against him, that nothing can be more: For if there be an Indictment for Felony in such a particular act, and then he is indicted again, he cannot come and plead a general Indictment of Felony, and then aver 'tis for the particular Felony, and so to make the fact enlarge the Record, and put matter of Record to be tried by a Jury.  
Mr. Wallop was of opinion that upon this Averment the Jury may try the Fact. What a pretty case would it be, that a Jury should judge upon the whole Debates of the House of Commons whether it be the same matter or no; for those Debates must be given in evidence if such an issue be tried. I did demur with all the care that I could, to bring nothing of that in question; but your Lordship knows if they have never so much in particular against a man, when they come to make good their Impeachment they must ascertain it to a particular Crime; and the Overt-acts must be alleged in the Impeachment, or else there is another way to hang a Subject than what is the King's highway all over England. And admit there was an intimation of a purpose to Impeach, a Message sent up, and any Judgement given thereupon, pray consider what may be the consequence as to the Government; a very great matter depends upon this: if there be any Record of that Parliament, then is the French Act gone; for so is the Resolution in 12 Jacobi, where the Journal-book was full of proceed, yet because there was no Judgement passed, nor no Record of a Judgement in a Writ of Error, they adjudged it no Session; but if any Judgement had been given, than it had been otherwise. So that the consequences of these things are not easily seen, when men debate upon touchy matters.  
But that which is before your Lordship is this point upon the pleading, and, I conceive, I have answered all the Precedents they have cited; therefore, my Lord, I do take it, with submission, there is nothing of that matter before you concerning an Impeachment depending before the Parliament; but whatsoever was done, 'tis so imperfectly pleaded, that this Court cannot take any notice of it.  Mr. Soll. Gen. 
My Lord, I shall endeavour to be short, and shall confine myself (because I am tender of your time) to the point in Question; which is, whether this Plea be sufficient in point of Form. There have been many things said on the other side, which I must crave leave to take notice of so far only as to show they are not in question before you. Those are what relate to the matter of the Plea; for they argue 'tis good both in matter and form; and from the matter of the Plea they have taken occasion to debate, whether a Commoner may be impeached: Whether this Court hath power to judge of the privileges and course of Parliament? none of which Questions will arise upon our case now. Therefore I will not now debate whether Magna Charta, which hath ordained that every man shall be tried by his Peers, and the Statute of 4 Edw. 3. which says, that the Lords shall not be compelled, nor shall have power to give Judgement upon a Commoner, have sufficiently secured the Liberty of the Subject from Impeachments. Nor is it the question before your Lordship, whether you shall judge of any matter that is a right or privilege of Parliament; here is nothing before you that was done in Parliament; but this is an Indictment for High-Treason committed by Fitz-Harris in this County. Now, my Lord, as that is not the Question, neither will it be the Question, Whether an Impeachment depending in the House of Lords against a Commoner, by the House of Commons, will bar this Court of its Jurisdiction. For though they have entered upon it, and debated it at large, and seemed to obviate the Objections made to that if it had been a Question; as by saying that the King hath no Election, because this is not the suit of the King, but the suit of the Subject. I will not now ex instituto argue that point; but I will humbly offer a few things to your Lordship's consideration, and I shall take my hints from them. They say the House of Commons are the grand Inquest of the Nation, to inquire of Treasons and other high Crimes, and they make these Presentments to the House of Lords. Now when such a Presentment is made, 'tis worthy consideration whether it be not a Presentment for the King; for an Impeachment does not conclude as an Appeal does, but contra Ligeantiae suae debitum, & Coronam & Dignitatem Domini Regis, so far 'tis the King's suit. In an Impeachment the Witnesses for the Prisoner are not sworn, the Prisoner hath not Council for his life in matter of Fact, as in cases of Appeal at the suit of the Subject he hath. The King may pardon part of the Sentence, it was done so in Rich. the 2 d's time, and it was done so lately in my Lord Stafford's Case; but take it for a supposition that it is the suit of the People, yet that cannot preclude the King from his suit neither; for at Common Law before the Statute of 3 Hen. 7. where a man had an Appeal for Murder, the King had not his hands tied up, not to proceed upon the Indictment; it had been used so, I do agree, and so 'tis recited, that it had been used so, in the Statute of 3. Hen. 7. but there was no positive Law for it, nor could it have been pleaded in bar of an Indictment, that the Indictment was within the year, but the King used to stay out the year in favour of that suit. But since the Statute the use is otherwise; and the reason why they proceed immediately is, because now an Acquittal or an Attainder upon the Indictment is no bar to the Appeal, but the party may go on in his Appeal. I mention this, because the consequence which they urge as such a dismal one, will be nothing; which is, What if he should be acquitted here, he could not plead altar foits acquit, so would be twice brought in jeopardy for the same offence: For it is the same in all Cases of Appeals, a man comes in jeopardy twice if he be indicted within the year, and attainted or acquitted within the year, it is no bar to the Appeal. But this is not like the Case of an Appeal for Murder neither, for though it hath been used discretionarily in the Court to stay the Suit of the King, and to prefer the Suit of the Subject, it was then because the Subject had the first and nearest concern, as the Son in the death of his Father, and it did mostly concern him to prosecute it. The King is concerned as the Fountain of Justice only, to bring Offenders to condign punishment; but the nearest damage, and the first to be preferred, was that of the party who had lost his Relation. Now the reason of that turns quite contrary here: For as in that Case the Subject had the nearest concern in the loss of his Father, and so was best entitled to the Suit; so in this Case that very reason will have the King's Suit to be preferred; for there is no Treason but against the King, and in Treason against himself, the King has the nearest concern, and the wrong is primarily and originally to himself. And the Subjects damage is but a consequence of that, as all hurt to the King must needs hurt the people. So the King's Suit is to be preferred here, as the Subjects was in the other Case.  
Now for the Objection that has been made, that if you try this man, upon the same reason you may try the Lords in the Tower. Their Case is different, as has been already observed by Mr. Attorney; And that which has been done by the Lords in that case, to me does rather seem to imply that this Trial may be in this case. For if the Lords after an Impeachment brought up against the five Lords in the Tower, and after the special matter in the Articles which does ascertain upon what they do proceed, have thought fit notwithstanding to remove the Indictment by Certiorari into Parliament, (for so it was in fact) that no prosecution might be upon them, then certainly they thought the King's Court might proceed without doing so.  
My Lord, I will mention no more upon this matter, but leave it to your Lordship's consideration: But as to the form of the Plea I do conceive, with submission, 'tis not a formal Plea.  
We know here of no form of pleading an Indictment, but what does set forth the Indictment particularly; the Precedents are so, 'tis so in Vaulx's Case, and all the Precedents that I have seen; so is the Precedent in Rast. Ent. where in an Appeal the Defendant waged Battle, the Plaintiff replies he was formerly indicted, he sets forth the Indictment particularly. All the Precedents are so, and the Law-Books resolve it must be so, as Wrote and Wiggs Case, where the Defendant in an Appeal of Murder by the Wife pleads, that he was indicted for Manslaughter before the Coroner of the Verge, and Coroner of the County, for killing the Husband at Shepperton in the County of Middlesex, and had his Clergy with reference to the Record, and the usual Averments; with this farther, that he averred that Shepperton at the time of the Indictment and Death was within the Verge. To which the Plaintiff demurred, and Judgement for the Plaintiff. Now two things are resolved by this Judgement.  
1. That 'tis necessary to set forth the whole Record of the Indictment, or otherwise they ought not to have given Judgement for the Plaintiff, by reason the Indictment was insufficient, as 'twas pleaded, (in that it did not say that Shepperton was within the Verge, which was necessary to entitle the Coroner of the Verge to a Jurisdiction) because being pleaded with reference to the Record upon Nul tiel Record pleaded, and the Record thereupon brought in, that defect might have been cured.  
2. That no Averment of Fact can supply that which should appear upon Record, therefore the Averment that Shepperton was within the Verge did not mend the matter, though confessed by the Demurrer as much as it is in this case, that 'tis the same Treason.  
But they say there is a difference between this Case and those which I have put; for that 'tis the course of Parliament (of which your Lordships must take notice) to impeach general, so they could not have pleaded otherwise than they have done, unless they had pleaded it otherwise than the Cases was; this reason holds rather the other way: for if in any Case such a general way of pleading with reference to the Record were to be admitted, it were in case of an Indictment, because the Court knows there is no Indictment but what does particularly set forth the Felony, which when produced, is capable of being applied; but here if the Record be brought in, 'twill no more ascertain the matter of the Impeachment than the Plea does already▪ And whereas they say your Lordship is bound to take notice of the course of Parliament, so your Lordship will take notice too, that 'tis not the course of Parliaments to try any man upon such a general Impeachment. I never heard of any man (I speak it with submission to them that know better) that was brought to plead Not guilty upon a general Impeachment of High-Treason; that is, upon the Commons bare saying, We do impeach such an one of High-Treason. I know none that ever was brought to answer that general Accusation.  
And now, my Lord, as the Plea is nought for not setting out the Record, so is the Averment, with submission, insufficient too. For though he does aver that the Treason in the Indictment and the Treason for which he was impeached, are one and the same, and not divers Affirmatively and Negatively; yet as this Case is, he ought to have said, that the Treason for which he is indicted, and the Treason mentioned in the Impeachment, is one and the same: For if he was impeached generally for High-Treason without mention of particulars, it is impossible to be reduced to a certainty: So 'tis an Averment of a Fact not capable to be tried.  
First, because, with submission to these Gentlemen that have said it, the Debates of the House of Commons are not to be given in Evidence, and made public to a Jury; nay, they are not always possible to be reduced to a certainty, as the circumstances may be; for they do not always particularly resolve upon what particulars they will accuse before they go up, but a general Allegation serves the turn: So that such Averment is not triable per Pais, because as the Case may be, it may not be capable of any certainty from the Debates of the House of Commons.  
Another reason is, because by this way of pleading, Proceed may be stayed for Treason, though subsequent to the Impeachment, which no man yet has pretended to say: For suppose now a general Impeachment lodged, and a Treason afterwards committed by the party, I think no man will say that the House of Commons when they bring up their special matters cannot make even this subsequent Treason an Article upon that Impeachment, neither can it be said that such Averment as this is upon such Plea pleaded to an Indictment here below would be repugnant, because there is no time at all laid in the Impeachment as 'tis here pleaded, nor no time when the Impeachment was brought up, so that it cannot appear to the Court whether the Treason in the Indictment be subsequent or not, the consequence of which is, we must try whether the House of Commons upon this general Impeachment did intent to proceed to try him for a fact committed after the Impeachment carried up. My Lord, this would be to affirm, that a man once impeached in Parliament shall never be tried for any offence; it would be like that Privilegium Clericale which they made use of to exempt themselves from punishment for all offences.  
But, my Lord, we do think upon the whole matter without entering upon the Debate, whether a particular Impeachment lodged in the House of Lords does preclude the King from his proceed: We have a good Case upon this Plea, for that is not a Question necessary to be resolved, though it be not granted by the King neither. But the Question is, whether this be a formal Plea, and whether here be sufficient matter set forth upon a Record to bring that other matter into question, and tie up the hands of the Court.  Mr. Serj. Jeffreys. 
My Lord, there hath been already enough spoken in this Case▪ I shall desire only to offer one word to that single point (viz.) the informality of the Plea; which I take to be the sole Question in this Case, for to argue whether because there was no Bill passed, or Decree made in the House of Lords (though the Articles had been carried up) the Impeachment did not fall to the ground by the Dissolution, I conceive altogether improper; for I think it does not affect the Question, though I desire to take notice that Sir Fr. Win. Mr. Williams, and Mr. Wallop, were all mistaken: for there were no such Concessions made by any of the King's Counsel the other day, as they allege, because we did not think it to be the Question, and therefore made no discourses about it.  
But, my Lord, I desire first to take notice of a Case or two that hath been cited on the other side, and then I shall apply myself to that which is the Question before you at this time. They cite the Case of the Lords in the Tower as a Judgement for them, which seems to be a Judgement against them; for by the Lords granting a Certiorari to remove the Judgements into Parliament, they seem to be of opinion, that notwithstanding they were impeached before the Lords, yet there might have been proceed below upon those Indictments, had not they been removed, and there they remain to this day; nay further, to those Impeachments they have pleaded to Issue, which is ready for a Trial. But in the Case at Bar, there only is an Accusation, without any further proceed thereupon.  
And as to the Case of my Lord Shaftsbury, that makes strongly for us, as I conceive. Mr. Justice Jones' opinion was taken notice of by Sir Fran. Winnington, that they would not meddle by any means with matters depending in Parliament: But I must remember, he then gave this reason for his opinion, because the Parliament was then in being. And I must humbly put your Lordship in mind, that the whole Court did then declare, That if the Parliament had been dissolved, they would have said something more to that Case. I do not say, that they would have given such or such a Judgement, but I attended at the Bar at that time, and I appeal to the memory of the Court, if the Court did not then make such a Declaration.  
But now to the Question: Without all peradventure, the Cases cited by Mr. Pollex●en are true. If I bring a general Indebitarus assumpsit for Wares sold and delivered, and after bring a particular Indebitatus assumpsit for such and such Wares, naming the particulars, the party may come and plead in Bar, and aver 'tis for the same thing; and 'tis a good Averment, because there is sufficient matter set forth in the Record to support such an Averment: For the doubt is only, whether the particular Goods mentioned in the second, be not the same that were intended under those general words (Goods and Merchandizes) in the first.  
But suppose there had been only an account brought, and no declaration put in, could then the Defendant have pleaded such a Plea with such an Averment, when there was not sufficient matter of Record set forth in their pleading, whereby the Court might be able to give a Judgement, or put it into a way of Trial whether it was for the same or not?  
And is it not so in this Case? there being but a bare Accusation: For I still keep to the informality of the pleading, and I take it not to be such a dangerous Case, as these Gentlemen of the other side do pretend, for you to determine it: For I am sure it will be better for the Court to answer, if ever they shall be required, that they have performed their Duty and done Justice according to their Consciences and their Oaths, than ever to be afraid of any Threats or Bug●●●s from the Bar.  
For would not they by this manner of pleading, put upon your Lordships a difficulty to judge, without any thing contained in the Impeachment to guide your Judgement, whether the Prisoner be impeached for the same thing for which he is indicted? May not the Treason intended in this Impeachment be for Clipping or Coining of Money? for 'tis generally said to be only for High-Treason. How comes this then to be helped so as to be any way issuable, and be tried? Shall it be by that way which Mr. Wallop laid down, that if Mr. Attorney had taken Issue, the Jury must have tried the Question by having the Debates of the House of Commons given in Evidence? Certainly that cannot be, my Lord. If there were but one sort of Treason, there might be some colour for this sort of pleading; but there are divers kinds of Treasons, and how is it capable to be tried? who can prove the intentions of the House of Commons, before they are come to a Resolution? and therefore cannot be given in Evidence, or be regularly brought into Judgement.  
Therefore we rely upon the informality and uncertainty of the pleading only, and meddle not with the Question, whether an Impeachment in the House of Lords supersedes an Indictment in the Kings-bench; for we say, the have not pleaded it so substantially, as to enable the Court to judge upon the Question: and therefore we pray your Lordship's Judgement, that the Plea may be overruled.  Sir Fran. Withins. 
My Lord, there has been so much of your time already taken up by those Gentlemen that have argued before me, that I shall be very short in what I have to say.  
The Question is not at this time, how far forth the Commons in Parliament may impeach or not impeach a Commoner, before the Lords in Parliament, or where the Lords may admit or not admit of such Impeachments; that is not the Case here, as I humbly conceive, nor will I meddle with it: I shall only speak to the validity of the Plea according to the Law. Now I say that this Plea of the Prisoner as thus pleaded, cannot be good to out this Court of Jurisdiction: For first, the Prisoner cannot be admitted to make the Averment in this Plea, that the Treason mentioned in the Impeachment in Parliament, and that contained in this Indictment, is the same; for if, as the Gentlemen that argued on the other side urged, that this Court must take notice of the Proceed and Law of Parliament, than you will take notice that no person is there tried upon a general Impeachment of Treason. Special Articles are always first exhibited: In this Case then either the House of Commons have carried up special Articles against the Prisoner to the Lords in Parliament, or not; if the House has done it, than the Plea might have been pleaded better by setting forth the Articles (which is part of what they say on the other side, that it could be pleaded no better) for then it would have appeared plainly whether the Treason were the same or not. If the Articles are not carried up, shall it lie in the mouth of any particular person to say what Articles the Commons in Parliament would have carried up? Shall any single person be admitted to say what the House would have done, before the House itself says it? In Cases of Impeachments, it lies in the Discretion and Judgement of the Commons upon Debate to exhibit what Articles they in their Wisdoms shall think fit; and sure it shall never come, that any particular person shall limit them to this or that particular Treason beforehand; no surely.  
Now suppose in such a Case as this, after such a Plea pleaded, the Commons upon deliberation should carry up Articles quite different, such a Plea than would appear to be a stark lie, and the pleading and allowing of it, an apparent delay of Justice. So that I conceive, my Lord, the Prisoner shall by no means be admitted (nor indeed can it be) to aver the intention of the House of Commons, (which cannot be tried) before they have declared it themselves: and therefore I conceive the Plea to be naught for that reason.  
But, my Lord, I conceive that the Prisoners Plea is ill for another reason, because the Court in this Case, by any thing expressed in this Plea, cannot discern nor take notice whether it be the same Treason or not.  
Now the reason why the Record, as this Case is, aught to be alleged specially, is because the matter contained in it may plainly appear to the Court, and then by that means the Court might judge whether it be the same Treason or not. Now Treason generally alleged in the Impeachment, is the Genus, and the particular Treason mentioned in the Indictment is only a Species, and the Averment in the Plea is, that the Genus and the Species is the same, which is absurd, and if allowed, tends to hoodwink and blind the Court instead of making the matter plain for their judgement.  
Pleas ought to be plain and certain, because the Court upon them alleged, is to judge either of men's Estates or Lives; and for that reason the matter ought to come plainly and fairly before them, that wrong may be done to neither party by reason of the obscureness or doubtfulness of the Allegation: if therefore a Hoodwink be brought instead of a Plea it ought not to be allowed. And therefore for these reasons (for what I have farther to say has been already said by others) I conceive it ought to be overruled. I humbly submit it to the Court.  L. C. J. 
You have done your Arguments, Gentlemen, on all sides.  Coun. 
Yes, my Lord.  L. C. J. 
Look you Gentlemen, I'll tell you, you have taken up a great part of our time. We never intended when we assigned four Counsel to Mr. Fitz-Harris, that they all should make formal Arguments in one day, 'tis the first time that ever it was done; but because 'tis as you press it in a Case of Blood, we were willing to hear all you could say, that you might not afterwards say, but that you were fully heard on all sides. But in truth, I must tell you, you have started a great many things that are not in the Case at all. We have nothing to do here, whether the Commons House at this day can Impeach for Treason any Commoner in the House of Lords, we have nothing to do with this, what the Lords Jurisdiction is, nor with this point, whether an Impeachment in the Lord's House (when the Lords are possessed fully of the Impeachment) does bar the bringing any Suit, or hinder the proceeding in an Inferior Court: But here we have a Case that rises upon the plead; whether you have brought here before us a sufficient Plea to take away the Jurisdiction of the Court, as you have pleaded it, that will be the sole point that is before us: And you have heard what exceptions have been made to the form, and to the matter of your pleading. We do ask you again, Whether you think you are able to mend your Pleading in any thing, for the Court will not catch you, if you have any thing wherein you can amend it, either in matter or form? If you will let us know it we shall consider of it; But if you have not, if you abide by this Plea, than we do think 'tis not reasonable, nor will be expected of us in a matter of this consequence to give our Judgement concerning this Plea presently. All the Cases cited concerning Facts done in Parliament, and where they have endeavoured to have them examined here, are nothing to the purpose at all. For plainly, we do not assume to ourselves a Jurisdiction to inquire of such matters, for words spoken, or Facts done in the Commons-House, or in the Lords, we call none to question here, nor for any thing of that nature which takes off most of the Instances you have given; but our Question is barely upon the pleading before us, whether we have a sufficient pleading of such an Impeachment as can foreclose the hands of the Court? And as to that we shall take some reasonable time to consider of it; we will not precipitate in such a Case; but deliberate well upon it before we give our Judgement. Take back your Prisoner.  Mr. Att. Gen. 
Before he goes away, we hope you will set a reasonable time, as short as you can, to have him come again, for your Judgement.  L. C. J. 
Mr. Attorney, we can send for him when we please, to come hither by Rule; you see this business is come on in the busy part of a Term, and 'tis impossible for the Court to attend nothing but this, we will take some reasonable time. 
Then Fitz-Harris was carried back to the Tower.  

On Tuesday. May 10. Mr. Attorney moved the Court to appoint a day for their Judgement on the Plea, and for Fitz-Harris to be brought up, which they appointed to be the next morning.  
And accordingly on Wednesday morning, May. 11. he was brought from the Tower to Westminster-Hall.    Mr. Att. Gen. 
My Lord, I pray that Fitz-harris may be brought to the Barr.  L. C. J. 
Where is the Lieutenant of the Tower? bid him bring Fitz-harris to the Bar (which was done).  Mr. Att. Gen. 
My Lord, I pray your Judgement on the Plea.  L. C. J. 
Why? Mr. Fitz-Harris, you have been Arraigned here for High-Treason, and it is for endeavouring and compassing the King's death, and other Treasons, specially mentioned in this Indictment; you have pleaded here to the Jurisdiction of this Court, that there was an Impeachment against you by the Commons of England in Parliament, before the Lords for the Crime of High-Treason, and you do say that that Impeachment is yet in force, and you do say by way of averment, that this Treason whereof you are now Indicted, and the Treason whereof you were Impeached by the Commons of England, before the Lords, are one and the same Treason. And upon this the Attorney General, for the King, hath Demurred, and you have joined in Demurrer. And we have here the arguments of your Counsel, whom we assigned to argue it for you; we have heard them at large, and have considered of your Case among ourselves, and upon still consideration and deliberation concerning your Case, and all that hath been said by your Counsel, and upon conference that we have had with some other of the Judges, we are three of us of Opinion that your Plea is not sufficient to bar this Court of its Jurisdiction, my Brother Jones, my Brother Raymond, and myself are of Opinion that your Plea is insufficient, my Brother Dolben not being resolved, but doubting concerning it: And therefore the Court does order and award, That you shall answer over to this Treason.  Cl. of Cr. 
Edward Fitz-Harris, Hold up thy hand.  Mr. Fitz-Harris. 
My Lord, I desire I may have Liberty to advise with my Counsel before I plead.  L. C. J. 
Mr. Fitz-Harris, When you proposed a difficulty you had in a matter of Law, the Court were willing to assign you Counsel; because 'tis known you cannot be a fitting person to advise yourself concerning the Law. But as to this, we cannot assign you Counsel; 'tis only a matter of Fact, whether you be Guilty, or not Guilty? Therefore in this Case you can't have Counsel allowed to advise you.  Mr. Fitz-Harris. 
My Lord, I desire before I plead, or do any thing of that nature, that I may make an end of my Confession before your Lordship, and some of the Privy Council.  L. C. J. 
Look you, Sir, For that you have trifled with us already; you pretended you had some scruples of Conscience, and that you were now become another man, and would reveal and discover the whole of this design and Plot, that you are said to be Guilty of here; but you have trifled several times concerning it, and we can say nothing concerning that now; we must now have your Plea; if afterwards you have a mind to confess and be ingenious, you may do it; but now you must either plead, or not plead.  Mr. Fitz-Harris. 
My Lord, I have some Witnesses a great way off, and I desire time to have them ready for my defence.  Cl. of Cr. 
Edward Fitz-harris, Hold up thy hand; (which he did) Thou hast been Indicted of High-Treason, upon that Indictment thou hast been Arraigned, and hast Pleaded to the Jurisdiction of this Court: To which Plea His Majesty's Attorney-General hath Demurred, and thou hast joined therein; And upon the whole matter, this Court, upon mature and considerate deliberation is of opinion, that thou oughtest to answer Over. How sayest thou, Art thou guilty of the High-Treason whereof thou hast been Indicted, and hast been Arraigned, or not Guilty?  Mr. Fitz-Harris. 
Not Guilty.  Cl. of Cr. 
Cul. Priest. etc. How wilt thou be tried?  Mr. Fitz-Harris. 
By God and my Country.  Cl. of Cr. 
God send thee a good deliverance.  L. C. J. 
Now if you have any thing to move, do it: We could not hear your motion till you had pleaded; for the method of the Court must be observed.  Mr. Fitz-Harris. 
I have some Witnesses at a distance, my Lord.  L. C. J. 
Where are your Witnesses?  Mr. Fitz-Harris. 
I have one Witness in Holland, a very material one; that I am much concerned to have for my Life.  Mr. Just. Jones. 
What is his Name?  Mr. Fitz-Harris. 
His Name is Steward, my Lord.  L. C. J. 
Look you, Mr. Fitz-Harris, I'll tell you, reasonable time is allowed to all men to make their defence in; but when a man is in Holland, I know not what time you will take for that.  Mr. Fitz-Harris. 
What time your Lordship thinks fit for a man to return from thence hither.  L. C. J. 
Look you, Mr. Attorney, Why should not we allow Mr. Fitz-Harris time for his Trial till next Term?  Mr. Attorn. Gen. 
I think he hath not offered any thing to entitle him to it: he doth not tell us, And I would fain know what the Witnesses will prove.  Mr. Just. Dolben. 
It may be Mr. Attorney will confess what 'tis that Witness can prove.  Mr. Att. General. 
For the whole proof in a Case of Treason lies on our side.  L. C. J. 
Commonly, and prima fancy, it does so; but there may be some things that the Prisoner may give in Evidence for himself, that may be material for him to urge for his Defence.  Mr. Fitz-Harris. 
My Lord, I know not whether it be safe for me to tell what he can say?  Mr. Just. Jones. 
Then you reserve it wholly in your own Judgement, whether he be a material Witness or no?  Mr. Fitz-Harris. 
If My Lord Chief-Justice pleases, I will acquaint him in private with it.  Mr. Att. General. 
I never saw any good effect of these private Proceed. If he have any thing to offer, he may do it publicly, in the face of Justice. And therefore I desire he may be Tried this Term; for he hath had an whole Terms notice, and time enough to consider what persons are material as Witnesses for him.  Mr. Just. Jones. 
Unless he do show good Cause to the contrary, he must be Tried this Term.  Mr. Att. General. 
And, my Lord, where 'tis in the same County where the Fact was committed, there is the less reason to stay; Criminals in High-Trrason, the Fact must be plain and evident against them.  L. C. J. 
Look you, Mr. Attorney, peradventure he hath been made to depend upon his Plea, and hath been advised so to do.  Mr. Fitz-Harris. 
Yes, my Lord, and have been close Prisoner, and not allowed to speak with any Body.  L. C. J. 
If so, than it may be a surprise upon him.  Mr. Fitz-Harris. 
My Lord, I have been allowed nothing to prepare for my Defence.  Mr. Sol. Gen. 
My Lord, He ought to be provided for his Trial this Term. I do not know, my Lord, what Witnesses he can pretend to have; The Fact was done in Middlesex here, and the proof of the Circumstances of that Fact do arise here; and I do not know what surprise he can complain of. As to the Witness he tells you of that is in Holland, he doth not tell you to what purpose he is a Witness; so that you may know whether it be material or not. I know very well, my Lord, in the Old-Bayly, when the Priests did urge it, that they had Witnesses beyond Sea in other countries', they were not suffered to delay their Trial upon such a pretence. We must submit it to your Lordship's discretion: but we suppose it will not be a precipitous proceeding, he having notice of his Trial all this Term.  L. C. J. 
Mr. Attorney, Truly, since he pretends he is surprised, and hath depended upon his Plea, and hath Witnesses that require some time to fetch, we think it reasonable that he should have till the next Term; and we will defer it till then. We are all of that Opinion, (especially it being such a little delay) to enable him to have what Witnesses he doth pretend to have.  Mr. Att. Gen. 
My Lord, I never desired in this Case, nor in any other, nor ever shall do, that Justice be precipitated. I know these open and fair Trials proceed with such equal steps to all parties, that we need not be hasty, and therefore if your Lordship be of that Opinion, I submit to it, so it be the first Week of the next Term.  L. C. J. 
The first Week it cannot be.  Mr. Att. Gen. 
Within the first seven days I mean.  L. C. J. 
The first Thursday in the Term. And take notice Mr. Fitz-Harris, that is the day appointed for your Trial.  Mr. Fitz-Harris. 
I desire Liberty to see my Wife, and have a Solicitor in the mean time.  L. C. J. 
I will tell you, for that, Mr. Fitz-Harris, the Court would never deny any thing of that nature to any one in your Condition and Circumstances; but your Wife makes an ill use of the Liberty we granted her: And if she do make an ill use of it, than the Court must restrain her, and hold their hands over her. If we were satisfied she would use the Liberty lawfully, and not abuse it—  Mr. Fitz-Harris. 
My Lord, I am sure she will use it lawfully hereafter, and make no ill use of it.  L. C. J. 
Look you, upon her good usage of it, if she will fairly demean herself, and not abuse it again, We are willing to take off the last Rule, and she shall have the same Liberty she had before that Rule.  Mr. Sol. Gen. 
With this, if your Lordship please, we desire there may be some other judge of her Prudence besides herself, and the Lieut. of the Tower be by.  Mr. Fitz-Harris. 
My Lord, I desire I may have a Solicitor; for he was never allowed to come and speak to me, tho' I had a Rule for him.  L. C. J. 
Look you, as to your Counsel now, which was the main Reason why you prayed a Solicitor, we cannot allow you them any more; for now We are come to a matter of Fact only, and we cannot by the Rules of Law allow you Counsel. Therefore what need you have of a Solicitor, I cannot tell; his business before, was to go from you to the Counsel, and from them to you, which is ceased now. But this, Mr. Attorney, if he have a desire to see Papers▪ and would send for any Papers that concern his Defence, so as they contain no new Treasonable matters and Contrivances, he ought sure to have them; and if he have Papers at his House, or any where else, which he desires to make use of in his own Defence, being inspected by the Lieutenant, to see that there be no matter of evil contained in them, he may have one to do that for him without any danger.  Mr. Att. Gen. 
I do not oppose it, My Lord; But I desire that all Caution may be used that can be; for this Solicitor of his is a Lawyer, and writeth Tracts of Law; but any thing material for his Defence I am not against.  L. C. J. 
Mr. Attorney, You need not fear any harm will be that ways; for he is not to speak with him alone.  Mrs. Fitz-Harris. 
I hope his Solicitor may come to him to take Instructions how to send for his Witnesses?  Mr. Just. Jones. 
You can tell how to do that surely without a Solicitor?  L. C. J. 
Just as the last Rule was, let there be another Rule made: For he must have all just advantages to enable him for his Defence.  Mr. Fitz-Harris. 
I hope I shall have a Rule of Court to make my Witnesses appear.  Mr. Just. Dolben. 
That you may have without Motion.  L. C. J. 
We will give you any thing that will enable you to make a fair Defence.  Cl. of Cr. 
He shall have Subpoenas for his Witnesses.  L. C. J. 
Then, Mr. Fitz-Harris, you must expect no other notice: You must take notice now, that upon the first Thursday in the next Term, that you are to receive your Trial here. Take the Prisoner back.  Mr. Att. Gen. 
In order to his Trial, I desire the Sheriff may bring in the Freeholders' Book to the Clerk of the Crown, to strike the Jury.  L. C. J. 
Mr. Attorney, We will consider of that, how far we can do that, And the Course of the Court shall be observed. But I doubt how we can.  Mr. Attorn. 
That is the practice in Trials at the Bar.  L. C. J. 
In Civil Causes, but not in Criminal, that I know of.  Mr. Att. Gen. 
We have reason to desire it; because we are afraid of some practice in this Cause, and fear there may be some odd carriage in the return of them.  Mr. Fitz-Harris. 
May I not see my Wife before I go hence?  L. C. J. 
With all our hearts; She may go to you, and with you, Sir, if you please; We will not hinder you of her company, so she carry herself fairly. 
Then the Lieutenant took back his Prisoner.   
FINIS.    

ADVERTISEMENT.  
The Trial at large of Edward Fitz-Harris and Oliver Plunket will shortly be Published.