they would bring up the Articles against him;" for the Lords to resolve, "That the said Edward Fitzharris should be proceeded with according to the course of common-law," and not

tion placeth in the Lords to try commoners, when their cases should come before them law

by way of Impeachment in parliament, at this time, is a denial of Justice, and a violation of the constitution of parliaments, and an obstruction to the farther discovery of the Popish Plot,

in a commoner is no crime, and subject to no punishment." 4 Hats. Prec. 200.

"Sir Matthew Hale, in the Jurisdiction of

fully, that is, at the suit of the Commons by the House of Lords, ch. 16, p. 92, says,

impeachment." 4 Hats. Prec. pp. 54, 67.

Mr. Hatsell, in support of his doctrine, that commoners may be impeached of High-treason before the House of Lords, cites the case of Chief Justice Scroggs, as to which he notices that the Chief Justice did not as a commoner

6

4th of Ed. 3, being done thus solemnly, in 'Some have thought this declaration of the

possibly be thought of: (1.) Because done by way of declaration, to be against law; and, (2.) Because it is a declaration by the Lords in disattirmance of their own jurisdiction; which commonly judges chuse rather to amplify, if it may be, than to abridge." 4 Hatsell, Prec. p.

285.

pleno parliamento,' was a statute or act of parliament. But that seems not so clear. It was certainly as solemn a declaration by the Lords as could be made, less than an act of plead to the Lords' jurisdiction, and that though parliament; and it is as high an evidence several members expressed their doubts how against the jurisdiction of the Lords, to try or far the Commons ought to impeach for High-judge a commoner, in a criminal cause, as can Treason a person as guilty of crimes which are not declared to be such by the statute of treasons, 25 Edward 3, no person doubted but that if the crime charged did amount to High Treason, sir William Scroggs a commoner was an object of impeachment though for a capital offence. He also cites the case of the earl of Tyrone, ordered to be impeached Jan. the 6th, 1681 (See 4 Cobb. Parl. Hist. 1278), and he mentions that sir W. Jones, in the debate, says, "There is no question, but a peer of Ireland is but a commoner in England; and no question but he may be proceeded against by impeachment, as well as by common trial. You cannot mistrust your managers, nor a common jury; but the accusation of lord Tyrone arising in parliament, it is properest he be tried in parliament." Mr. Boscawen says, No commoner can be tried by the Lords, but by impeachment of the Commons.' It appears that sir J. Trevor, sir Francis Winnington, and serjeant Maynard, concurred in this proceeding." 4 Hats. Prec. p. 110.

Report in the Case of sir Adam Blair and others, For more precedents see lord Rochester's in the year 1689, in this Collection.

Roger North has a passage on this subject very well worth consideration:

"At the Oxford parliament, when the blackrod knocked at the door, sir Wm. Jones was in the midst of a speech to inflame the House the House might impeach commoners, and anupon the subject of Fitzharris; proving that swering the objections from Magna Charta, viz.

the Lex Terræ,' and was interrupted by the disper judicium parium,' he was coming to solution. I could have been content it had staid a little longer, that his whole argument So judge Berkley was impeached for High- might come to us; because the strength of the Treason, see his Case, vol. 3, p. 1283, of this objection, which he was a going to answer, lies Collection, see too the Case of Jermyn, Piercy, in this, viz. that Lex Terre is not contrary to, and others, mentioned 4 Hatsell 134, where a nor doth repeal or restrain the Judicium reference is made to lord Clarendon's account of 'parium,' but both are of absolute extent, the their plot and also to the queen's representation former as to fact, and the other as to the law, of it. There is likewise an account of it in May's when the fact is stated. The former is History. Mr. Hatsell also cites the Case of Guilty or Not Guilty, that is per juDaniel O'Neile impeached of High-Treason indicium parium; but there may be other the year 1641, and he quotes from sir William Jones's pamphlet, “If this (that the Lords could not try a commoner upon an impeachment for High-Treason) was so, it would be in the power of the king, by making only commoners ministers of state, to subvert the government by their contrivances when they pleased. Their greatness would keep them out of the reach of ordinary courts of justice; or their treasons might not perhaps be within the statute, but such as fall under the cognizance of no other court than the parliament; and if the people might not of right demand justice there, they might, without fear of punishment, act the most destructive villainies against the kingdom; it would also follow, that the same fact, which in a peer is treason, and punishable with death,

pleas, as misnomer, demurrers, exceptions, pardons, and confessions, upon which the issue is wholly to the court; as also the punishment after verdict of the peers, and all that refers to the Lex Terra. So as, by that distinction in Magna Charta, the offices of the jury, and of the court, one for fact, and the other for law, are kept distinct. And another objection was to be answered, which is that, by an impeachment and judgment of the Lords, a commoner is deprived of his legal challenges." Exam. 508. †

The differences of opinion which have prevailed respecting this matter strongly illustrate the unsettledness of the Lex et Consuetudo

Parliamenti,' (See the Case of Shirley and Fagg, vol. 6. p. 1121 of this Collection. See too Mr. Hatsell's uncertainty as to whether the

and of great danger to his majesty's person, and the Protestant Religion."

Resolved, "That for any inferior court to proceed against Edward Fitzharris, or any

Commons Journals are public records, Precedents, vol. S, c. 4.

Sir John Reresby, after noticing that the impeachment of Fitzharris was not done to destroy, but to serve him in opposition to the court, says,

other person lying under an Impeachment in parliament for the same crimes for which he or they stand impeached, is an high breach of the privilege of parliament."

Immediately after these proceedings, namely on Monday the 28th of March, the parliament was dissolved.

See

This last parliament of king Charles the Second, he dissolved at Oxford, on March 28th, "The Lords refused to receive Fitzharris's in Roger North's Examen, p. 104]. After 1681. [See the particulars of the dissolution impeachment; observing that, he being already which event he governed without a parliament, indicted at common law, and in a way of trial [See a note to the case of Richard Thompson, by his peers, as Magna Charta directed, they could not perceive how their House could take supra, p. 7.] during the remaining four years notice of his offence. The Commons hereupon abuse of the legal powers with which the conof his reign" with a sort of legal tyranny, or grew angry with the Lords, and voted that such stitution had invested him, employing his court their lordships proceeding was a delay of jus- of King's-bench, (as his father ad employed tice, a breach of the privilege of parliament, the court of Star-chamber) to persecute his suband a bar to the further discovery of the Popish jects under the forms of law, by taking away Plot; and that for any inferior court to pro-the Charter of the city of London, and procurceed therein, while an impeachment was depending, was an high breach of the privilege ing the surrenders of the Charters of several of parliament. The heats grew, in short, to an other corporations that sent members to parliaexcess in both Houses, both as to this, and the members of parliament less free and popular ment, and thereby making the elections of Bill of Exclusion. The Commons, however, than before; and by over-severe punishments, were of opinion, that the king would give way to them, he having already made such ad-mages, given in civil actions by corrupt juries, enormous fines, and verdicts for excessive davances towards their measures, and being in packed by the sheriffs for the purpose.' such thorough distress for money, besides that Mr. Baron Maseres's Preface to the Debates in many who were near the king, urged them to the year 1680, on the Exclusion Bill, edition of persist still in their endeavours.-I was at the king's couchée, as I was three times in one whole history of the remaining part of the 1807. Of this period Mr. Fox says, "The week; his discourse ran generally upon the reign exhibits an uninterrupted series of attacks impossibility of any thing like the Popish Plot, and the contradictions of which it was made upon the liberty, property, and lives of his subup: that he intended Fitzharris should come of this period, would be to enumerate every arjects. To give an account of all the oppression upon his trial immediately: that in all affairs, relating to himself, the laws should have their rest, every trial, every sentence, that took place in questions between the crown and the subregular course; and that, whatever his own private opinion might be, he would govern by jects." them, and by them only.-Fitzharris was arraigned at the King's-bench bar, where by his counsel he refused to plead; because he stood in parliament impeached for the crimes he there was to be indicted for; though the impeachment specified no particular treasons, which the indictment did. The counsel for the king said, his plea was evasive, it not appearing whether the same crimes were intended by the one, as by the other.

"This point was argued at the bar, but the case being quite extraordinary, both in its own nature, as well as because of the severe vote of the Commons at Oxford, the judges took time to consider of it, but two days afterwards pronounced judgment for the king; and in the end, Fitzharris received sentence of death, for his treason, and was executed accordingly."

Mr. Hatsell observes, That the period at which the instance happened of the Impeachment of Fitzharris, and the circumstances attending it, render any arguments or conclusions that may be drawn from that proceeding of very little weight.

VOL. VIII.

And Blackstone speaks thus: "The point the theoretical perfection of our public law is of time at which I would choose to fix the year 1679, after the Habeas Corpus act was passed; and that for licensing the press had exfollowed it were times of great practical opprespired though the years which immediately sion."" It is far from my intention to palliate or defend many very iniquitous proceedings, contrary to all law, in that reign, through the artifice of wicked politicians, both in and out of that by the law, as it then stood, (notwithstandemployment. What seems incontestable is this; ing some invidious, nay dangerous branches of the prerogative have since been lopped off, and the rest more clearly defined) the people had as large a portion of real liberty, as is consistent with a state of society; and sufficient power, residing in their own hands, to assert and preserve that liberty, if invaded by the royal prerogative. For which I need but appeal to the memorable catastrophe of the next reign. For when king Charles's deluded brother attempted to enslave the nation, he found it was beyond his power: the people both could, and did, reR

sist him; and, in consequence of such resistance, obliged him to quit his enterprize and his throne together." B. Comm. B. 4, c. 33, s. 5. Upon this Mr. Fox exc'aims:

best moment of the best constitution that ever human wisdom framed. What follows? A time of oppression and misery, not arising from external or accidental causes, such as war, pestilence, or famine, nor even from any such alteration of the laws as might be supposed to impair this boasted perfection, but from a corrupt and wicked administration, which all the so much admired checks of the constitution were not able to prevent. How vain then, how

"What a field for meditation does this short observation, from such a man, furnish! What reflections does it not suggest to a thinking mind, upon the inefficacy of human laws, and the imperfections of human constitutions! We are called from the contemplation of the pro-idle, how presumptuous, is the opinion, that gress of our constitution, and our attention fixed with the most minute accuracy to a particular point, when it is said to have risen to its utmost perfection. Here we are then at the

laws can do every thing! and how weak and pernicious the maxim founded upon it, that measures, not men, are to be attended to.". Fox's Hist. of the Reign of James 2, p. 21.

1

Proceedings against EDWARD FITZHARRIS in the King's-Bench, upon his Arraignment and Plea* to an Indictment for High Treason: 33 CHARLES II. A. D. 1681.

ON Wednesday April 27, 1681, the Grand- | bert Sawyer) desired, That some of that Grandjuries for the county of Middlesex were sworn;jury which served for the hundreds of Edmonand after the Charge delivered by Mr. Justice ton and Gore (that for Ossulston hundred beJones, his majesty's Attorney-General (sir Ro-ing immediately adjourned for a week) might

* I do appoint Francis Tyton and Thomas only copied by himself: but he had no sort of "Basset to print the Arraignment and Plea of proof to support this. Cornish the sheriff goEdward Fitzharris, with the Arguments and ing to see him, he desired he would bring him 'Proceedings thereupon, and that no others a justice of peace; for he could make a great presume to print the same. F. PEMBERTON.' discovery of the plot, far beyond all that was In Macpherson's "Life of King James," heart went and acquainted the king with this: ,, yet known. Cornish in the simplicity of his written by himself, (see Introduction to lord for which he was much blamed; for it was Clarendon's Case, vol. 6, p. 291, of this Col-said, by this means that discovery might have lection), is the following passage: "April 27, 1681, Fitzharris's indictment before the GrandJury to-morrow. The king was confident it would be found; and though all the practices imaginable were used to pack a petty jury, yet the proofs were so clear against him, that they would hardly find twelve men so wicked, as to perjure themselves so impudently, against law and justice in the face of the world.'

been stopt: but his going first with it to the to himself and to many others. The secretaries court proved afterwards a great happiness both and some privy counsellors were upon that sent to examine Fitzharris; to whom he gave which the duke was concerned, with many a long relation of a practice to kill the king, in other particulars which need not be mentioned;

for it was all a fiction. The secretaries came to him a second time to examine him farther: he boldly stood to all he had said: and he desired that some justices of the city might be brought to him. So Clayton and Treby went to him: and he made the same pretended discovery to them over again; and insinuated, that he was glad it was now in safe hands that would not stifle it. The king was highly offended with this, since it plainly shewed a distrust of his ministers: and so Fitzharris was

"A few days before the king went to Oxford, Fitzharris, an Irish Papist, was taken up for framing a malicious and treasonable libel against the king and his whole family. He had met with one Everard, who pretended to make discoveries, and as was thought had mixed a great deal of falsehood with some truth but he held himself in general terms, and did not descend to so many particulars as the witnesses had done. Fitzharris and he had been acquainted in France: so on that con-removed to the Tower; which the court refidence he shewed him his libel: and he made solved to make the prison for all offenders, till an appointment to come to Everard's chamber, there should be sheriffs chosen more at the who thought he intended to trepan him, and so king's devotion. Yet the deposition made to had placed witnesses to overhear all that past. Clayton and Treby was in all points the same Fitzharris left the libel with him, all writ in his that he had made to the secretaries: so that own hand: Everard went with the paper and there was no colour for the pretence afterward with his witnesses and informed against Fitz-put on this, as if they had practised on him. harris, who upon that was committed. But seeing the proof against him was like to be full, he said, the libel was drawn by Everard, and

"The parliament met at Oxford in March: the king opened it with severe reflections on the proceedings of the former parliament. He

in the Tower of London, which was granted; but the Grand-jury being under some scruples against receiving of the bill, desired the opinion court that I might be ordered to come to him, upon what reason I could never imagine: a rule was made that I might speak to him in the

be present at the swearing of the witnesses upon an Indictment for High Treason, to be preferred against Edward Fitzharris, prisoner said, he was resolved to maintain the succession of the crown in the right line: but for quieting his people's fears he was willing to put the administration of the government into Pro-presence of the lieutenant of the Tower. I testant hands. This was explained by Ernley went to him, and pressed him vehemently to and Littleton to be meant of a prince regent, tell the truth, and not to deceive himself with with whom the regal prerogative should be false hopes. I charged him with the improlodged during the duke's life. Jones and Lit-babilities of his discovery; and laid home to tleton managed the debate on the grounds for merly mentioned: but in the end the proposition was rejected; and they resolved to go again to the Bill of Exclusion, to the great joy of the duke's party, who declared themselves more against this than against the exclusion itself. The Commons resolved likewise to take the management of Fitzharris's affair out of the hands of the court: so they carried to the Lords bar an impeachment against him, which was rejected by the Lords upon a pretence with which lord Nottingham furnished them. It was this: Edward the third had got some commoners to be condemned by the Lords; of which when the House of Commons complained, an order was made, that no such thing should be done for the future. Now that related only to proceedings at the king's suit: but it could not be meant, that an impeachment from the Commons did not lie against a commoner. Judges, Secretaries of State, and the Lord Keeper were often commoners: so if this was good law, here was a certain method offered to the court, to be troubled no more with impeachments, by employing only commoners. In short, the peers saw the design of this impeachment, and were resolved not to receive it: and so made use of this colour to reject it. Upon that the Commons past a vote, that justice was denied them by the Lords: and they also voted, that all those who concurred in any sort in trying Fitzharris in any other court were betrayers of the liberties of their country. "Fitzharris's trial came on in Easter Term: Scroggs was turned out, and Pemberton was made chief justice. His rise was so particular, that it is worth the being remembered: in his youth he mixed with such lewd company that he quickly spent all he had; and ran so deep in debt that he was cast into a jail, where he lay many years: but he followed his studies so close in the jail, that he became one of the ablest men of his profession. He was not wholly for the court: he had been a judge before, and was turned out by Scroggs's means: and now he was raised again, and was afterwards made chief justice of the other bench: but not being compliant enough, he was turned out a second time, when the court would be served by none but by men of a thorough paced obsequiousness. Fitzharris pleaded the impeachment in parliament: but since the Lords had thrown that out it was over-ruled.

"Fitzharris was tried next: and the proof was so full that he was cast. He moved in

him the sin of perjury, chiefly in matters of blood, so fully, that the lieutenant of the Tower made a very just report of it to the king, as the king himself told me afterwards. When he saw there was no hope, he said the lord How. ard was the author of the libel. Howard was so ill thought of, that, it being known that there was a familiarity between Fitzharris and him, it was apprehended from the beginning that he was concerned in it. I had seen him in lord Howard's company, and had told him how indecent it was to have such a man about him he said he was in want, and was as honest as his religion would suffer him to be. I found out afterwards, that he was a spy of the lady Portsmouth's: and that he had carried lord Howard to her: and, as lord Howard himself told me, she brought the king to talk with him twice or thrice. The king, as he said, entered into a particular scheme with him of the new frame of his ministry in case of an agreement, which seemed to him to be very near. As soon as I saw the libel I was satisfied that lord Howard was not concerned in it: it was so ill drawn, and so little disguised in the treasonable part, that none but a man of the lowest form could be capable of making it. The report of lord Howard's being charged with this was over the whole town a day before any warrant was sent out against him; which made it appear, that the court had a mind to give him time to go out of the way. He came to me, and solemnly vowed he was not at all concerned in that matter: so I advised him not to stir from home. He was committed that night: I had no liking to the man's temper: yet he insinuated himself so into me, that without being rude to him it was not possible to avoid him. He was a man of a pleasant conversation: but he railed so indecently both at the king and the clergy, that I was very uneasy in his company: yet now, during his imprisonment, I did him all the service I could. But Algernoon Sidney took his concerns and his family so to heart, and managed every thing relating to him with that zeal, and that care, that none but a monster of ingratitude could have made him the return that he did afterwards. When the bill against lord Howard was brought to the Grand-Jury, Fitzharris's wife and maid were the two witnesses against him: but they did so evidently forswear themselves, that the Attorney-General withdrew it. Lord Howard lay in the Tower till the Michaelmas term; and came out by the Habeas Corpus. I went

of the court therein; which Mr. Justice Jonos alone thought not fit to give, but ordered them to attend next day when the court was full.

And accordingly on Thursday, April 28, the said grand jury came to the bar, and Mr. Michael Godfrey (brother to sir Edmundbury Godfrey), who was their foreman, addressed himself thus to the Court:

Mr. Godfrey. My lord, I have an humble request to make to the Court on the behalf of myself, and another on the behalf of the grand jury for the county of Middlesex, of which I am foreman. This gentleman, Mr. Ward, I did beg of when I was sworn, to chuse another man that was fitter for the service, as being more experienced, but he would not; and I beg your pardon, if I should commit any failure for want of experience. But I desire, before we proceed upon this Indictment before us, that this same Fitzharris may be examined about my brother's death, of which I suppose he may know much, because in the printed Narrative he does speak of one De Puy, who was a very active man about that murder; and how ill a man soever he hath been, we do hope he hath so much truth in him, as to tell what he knows of that horrid murder. Therefore I pray your lordship, that you would grant an Habeas Corpus to fetch him before your lordship to be examined upon that point before we do proceed; that is all as to myself. My lord, as to the Jury, we do all of us humbly present this Paper, and desire it may be read in Court. L. C. Justice. (Sir Francis Pemberton.) What is it? a petition?

Cl. of Crown. It is not subscribed by any

body.
Jurors. But we do all own it, my lord.

L. C. J. What is it? Read it.

Cl. of Crown. "We Michael Godfrey, &c. being sworn to serve in the grand inquest for the hundreds of Edmonton and Gore, in this county of Middlesex, &c. and being yesterday sent for into the Court of King's-bench, by a messenger from the said Court, to be present at the swearing of several witnesses produced 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 Fitzharris, 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, &c. 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, &c. (in case an Indictment of the said Fitzharris should be brought before us) to proceed to examine any witnesses in reference to the said Indictment, or any way to meddle with it, or proceed upon it, notwithstanding the said Impeachment, and Votes pursuant to it by the said honourable House of Commons? And this being a great point in law, and of so great a consequence for us to undertake in a point of right not settled by conference, and remaining yet undetermined in the high Court of Parliament.-We therefore humbly desire the opinion of this Court upon the whole matter, Whether legally and safely we may proceed to find the indictment of Fitzharris, or no."

Mr. Godfrey. My lord, we do humbly desire the resolution of the Court in this matter, as a thing of weight; for we are between two millstones, as we apprehend it, and shall be ground between them.

L. C. J. Look you, gentlemen of the jury, we do not apprehend so.

no more to Fitzharris: but Hawkins the minister of the Tower took him into his management; and prevailed with him not only to deny all his former discovery, but to lay it on Clayton, Treby, and the sheriffs, as a subornation of theirs, though it was evident that was impossible to be true. Yet at the same time he writ letters to his wife, who was not then admitted to him, which I saw and read, in which he told her, how he was practised upon with the hopes of life. He charged her to swear falsely against none: one of these was writ Attorney General. (Sir Robert Sawyer.) My that very morning in which he suffered and lord, be pleased to spare me one word: this Inyet before he was led out he signed a new dictment was tendered to this grand jury yespaper containing the former charge of subor-terday, and this gentleman was against acceptnation, and put it in Hawkins's hands. Anding the bill, till he had your judgment, and so at Tyburn he referred all he had to say to that paper, which was immediately published: but the falsehood of it was so very notorious, that it shewed what a sort of man Hawkins was: yet he was soon after rewarded for this with the deanry of Chichester. But when the court heard what letters Fitzharris had writ to his wife they were confounded: and all further discourse about him was stifled. But the court practised on her by the promise of a pension so far, that she delivered up her husband's letters to them. But so many had seen them before that, that this base practice turned much to the reproach of all their proceedings." 1 Burnet, 497, 502, 503,

were two more; but for all that, the body of them carried it, (all but these three) to hear the Evidence: whereupon Mr. Solicitor and myself did go on upon the evidence, and spent some time in opening it to them, and it was all given to them; and truly the gentlemen did seem to be abundantly satisfied what an horrid villainy it was, and we did think they would have found the bill: but it seems they have prevailed to put these scruples into the others heads.

L. C. J. Look you, Mr. Attorney, we will now enquire into that. Gentlemen of the jury you seem dissatisfied in this matter, and desire the opinion of the Court in it, whether you