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being too nearly pressed by the Attorney-Ge- tention to pretend to the king, that he had inneral, he said, Fitzharris told him the use of tercepted a libel privately dispersed; and to the libels were to disperse them he knew how; make it more likely, it should be framed in the that they were to be drawn in the name of the Nonconformists names, to make his report the Nonconformists, and put upon them. And more credible (for of papists or church-men it Oates said, Everard said the libels were to be could not be believed), to get more money of printed, and sent abroad by the penny-post to the king; and that matter, by all his questions the protesting Lords, and leading men of the to the witnesses, he most drove at: and that House of Commons, and the persons seized would at most be but a cheat. with them in their pockets; which is all strong evidence that the libel was designed to trepan others; and that was all along the import of Fitzharris's questions, though cunningly not answered by some of the witnesses, and as cunningly omitted in summing up the evidence. It is true, the chief justice said, Everard said no such thing as Oates had said; but why was not Everard, who was then present, asked, whether he said what Oates had given in evi

dence?

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

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

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

ment.

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

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

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

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

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

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

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

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

more, for being framed by Fitzharris or Everard,' of the mischief, the bringing the Quo Warranto

or for being published by either of them, than if published by another person.

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

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

against the city, whereby the credit of the city was lost,and many orphans starved, and more impoverished, beyond the possibility of recovery? And it was yet heightened by the judgment given in the highest case that ever came into Westminster-hall, by two judges only, and that without one word of reason given at the pronouncing, according to the pattern of Fitzharris's case, and was the second mute judgment. Did it not fright all honest men from being on criminal juries, when Wilmer was so illegally prosecuted for not giving a verdict against his conscience, by an homine replegiando and information? And did not that make all merchants, who had transactions beyond sea, afraid to send their servants thither, for fear they might be laid by the heels till they fetched them back again? Did it not startle the Lords and the leading men of the House of Commons, mentioned so often in Fitzharris's trial, when the earl of Essex, lord Russel, colonel Sidney, Mr. Hampden and several others, were clapped up close prisoners in the Tower? Did it not deter an honest man from appearing to witness the truth, when sir Patience Ward was convicted of perjury; Did it not provoke two great and noble families, when the lord Russel and colonel Sidney were so illegally and unhandsomely dealt withal, as shall be hereafter declared? Did it not provoke all the nation, except the clergy and soldiery, when all the charters of England were seized, and not regranted, but at excessive rates, to the starving the poor, who should have been fed with the money which went to purchase the new charters, and reserving the disposition of all the places of profit and power, within the new corporations, to the king, but which indeed the confederates shared among themselves? Nay, the very election of burgesses, the freeness of which is the great fundamental of the To instance in some of many; did it not government, was monopolized, and put into a make a mighty heart-burning in the city few hands. Did not the unreasonable fines and against the government, and raised great jea- cruel punishments inflicted, oppress many, lousies between the king and people, when the terrify all, and consequently made the governsheriffs, North and Rich, were imposed on the ment odious to the subject? Did not the cruelcity? Did not the taking away the city's right ties acted in the West, enrage above a third of electing sheriffs, and the suspicions for what part of the nation? Did not the turning out end it was done, besides the illegalities that fol- many of the soldiery and clergy, without any lowed; if what sir Edward Herbert says in his reason; and for that purpose erecting arbitrary late Vindication, fol. 16. be law, as it hath an courts, and granting dispensations to persons aspect as if it were, that grand juries returned by law disabled, to enable them to have and by such as are sheriffs in fact, but not in right, enjoy the places and offices of such as were il are illegal, and convictions on their present-legally turned out, and of all who should be in ments are illegal and void, give great distur-like manner turned out? And was it not seen bance: and that opinion seems to be countenanced by my lord Coke's third Instit. fol. 32. in his comment on the 11th of Henry 4. and consequently my lord Russel's, and other attainders void? Did it not add to the heartburning, the punishing those citizens as rioters who were at Guildhall, innocently contesting their right of electing? Was it not an increase

No man will pretend that libel did any man mischief but the contriver; nor in probability could have done, if not used to the purpose Everard said to Oates. Yet other persons have been guilty of as illegal acts, of worse consequences in prospect, and much worse in effect, and it did not amount to treason. I dare say, the allegation, that they disturbed the kingdom by their acts, and war caused to be moved against the king, is true of them, and they are guilty of all the aggravations used in indictments of treason.

1721.

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

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

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

actions.

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

But though neither Fitzharris's crime, taken in the last sense, nor the above crimes, were high-treason by any statute; and the judges have not power to punish any other treasons: yet in all times the parliaments have practised, and it is necessarily incident to all supreme powers, in all governments, to enact or declare extravagant crimes to be greater than by the established law they are declared to be, not by virtue of the clause in the statute of Edward the third, whereby some have by mistake thought that a power was reserved to the parliament to declare other matters treason than what is therein expressed: For admit that clause had been admitted, there are none can doubt, but in point of power, the parliament could (how far in justice they might, is another question) have declared any other matter to be treason; and the words of that clause are very improper expressions, either to vest or serve a power in the parliament; for the words are only prohibitory to the judges to adjudge any other matters treason than those expressed in the act, though they were somewhat like those expressed; and therefore might be supposed treasons; and it is a sort of monition to offenders, that they should not presume to be guilty of enormous crimes, upon presumption that they were not treasons within that act. For in the preamble it is said, because many other like cases of treason (which in sense are cases like treason declared in that act) may happen in time to come, which could not be thought of or declared at that present; therefore if any such should happen before any justice, the justice should tarry, and not proceed to give judgment of treason on it, till it should be judged in parliament treason or felony. How well the judges, in late days, have observed this prohibitory law, let the world judge; and most certainly the parliament might have declared in Fitzharris's case, as they may in those other, that the crimes were treason, felony, misprision of treason, trespass, or what other crime known in the law, and inflict what punishment they thought fit: and it is no injustice for the supreme power to punish a fact in a higher manner than by law established, if the fact in its nature is a crime, and the circumstances make it much inore heinous than For profit in some cases, revenge in others, ordinarily such crimes are. It was not injustice the endeavouring means to escape punishment, in the parliament of the second and third of and a natural propensity to cruelty in many, Philip and Mary to enact, that Smith and were the true ends driven at; and not the others, who were supposed to be guilty, as bringing their prince into the hatred of his sub-accessaries to a barbarous murder, and were jects, though that was a necessary consequent of all recited, and of many more matters omitted. And let Fitzharris's crime, and those recited, be but examined, his was but a peccadillo to the least of those; though this was acted by an Irish papist, and these by English protestants, sons of the church of England as by law established, as they call themselves;

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

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

equally, if not more guilty than the principal, to enact, as they did, that if they should be found guilty as accessaries, they should not have their clergies, which at the time of committing the fact accessaries to murder were allowed to have. It is true, to declare or enact a fact, after it is committed, to be a crime, which when committed was in itself none, such

as transporting wool beyond sea, and the like, judges, have no law to direct them but their would be high injustice.

of an House of Commons?' If this be true, what benefit do we derive from the exchange? Tyranny, my lords, is detestable in every shape; but in none so formidable as when it is assumed and exercised by a number of tyrants. But, my lords, this is not the fact, this is not the constitution; we have a law of parliament, we have a code in which every honest inan may find it. We have Magna Charta, we have the Statute Book, and the Bill of Rights. If a case should arise, unknown to these great authorities, we have still that plain English reason left, which is the foundation of all our English jurisprudence. That reason tells us, that every judicial court, and every political society, must be vested with those powers and privileges which are necessary for performing the office to which they are appointed. It tells us also, that no court of justice can have a power inconsistent with or paramount to, the known laws of the land: that the people, when they choose their representatives, never mean to convey to them a power of invading the rights, or trampling upon the liberties of those whom they represent. What security would they have for their rights, if once they admitted that a court of judicature might determine every question that came before it, not by any

own wisdom; that their decision is law; and if they determine wrong the subject has no apIt has already (in a Note to p. 236) been inti- peal but to Heaven. What then, my lords, mated, that this Case of Fitzharris presents ano- are all the generous efforts of our ancestors, ther proof of the unsettledness and irregularity are all those glorious contentions, by which of the Lex et Consuetudo Parliamenti.' In they meant to secure to themselves, and to the dispute which occurred in the year 1671, transmit to their posterity, a known law, a concerning the right of the Lords to alter certain rule of living, reduced to this concluMoney-Bills, they required to see the "charter sion, that instead of the arbitrary power of a or contract by which they had divested them-king, we must submit to the arbitrary power selves of that right, and appropriated it to the Commons with an exclusion of themselves;" to which requisition the Commons prayed they might "answer by another question, Where is that record or contract by which the Commons submitted that Judicature should be appropriated to the Lords in exclusion of themselves? Wherever your lordships find the last record, they will shew the first indorsed upon the back of the same Roll." It may be questioned whether this conceit was worthy of introduction into a solemn debate between two great legislative bodies concerning some of their most important rights: and, after all, the jest possessed not the indispensible requisite, novelty it was merely a repetition of the old jocular call upon the Pope to produce Constantine's Grant of the Papal Patrimony. Mr. Hatsell's four volumes (but especially the 2nd and 3rd) of" Precedents" abound in proofs of the unsettledness and irregularity of this Lex et Consuetudo,' with respect even to matters of most essential import, such, for instances, as whether and to what extent the House of Commons is a Court of Record (see vol. 3, c. 4), whether the House of Commons can administer an oath (see vol. 2, c. 10). His observations upon this last subject, he concludes with a very salutary and memorable re-known, positive law, but by the vague, undeflection: "I trust," says he, "that the House of Commons having desisted now for so great a length of time from taking any even the most solemn examinations upon oath, it will never be proposed to recur to that measure again, as it is highly essential in this, as well as in every other part of their conduct, that the House of Commons should not appear desirous of exceeding the limits of their acknowledged authority; or of going beyond those bounds which are set to their power by the law and constitution of the country."

terminate, arbitrary rule, of what the noble lord is pleased to call the wisdom of the court? With respect to the decision of the courts of justice, I am far from denying them their due weight and authority; yet placing them in the most respectable view, I still consider them, not as law, but as an evidence of the law, and before they can arrive even at that degree of authority, it must appear, that they are founded in, and confirmed by reason: that they are supported by precedents taken from good and moderate times; that they do not contradict The first earl of Chatham very indignantly without reluctance, by the people; that they any positive law; that they are submitted to repelled the doctrine of the indefiniteness of what is called Privilege of Parliament. In reare unquestioned by the legislature (which is plying to a Speech of the first earl of Mans-equivalent to a tacit confirmation); and what, field, he said:

in my judgment, is by far the most important, that they do not violate the spirit of the con"The principles of the English laws are stitution. My lords, this is not a vague or sufficiently clear: they are founded in reason, loose expression: we all know what the conand are the master-piece of the human under-stitution is; we all know, that the first prinstanding; but it is in the text that I would look ciple of it is, that the subject shall not be gofor a direction to my judgment, not in the com-verned by the arbitrium of any one man, or mentaries of modern professors. The noble lord assures us, that he knows not in what code the law of parliament is to be found; that the House of Commons, when they act as

body of men (less than the whole legislature), but by certain laws, to which he has virtually given his consent, which are open to him to examine, and not beyond his ability to understand."

278. The Trial* of Dr. OLIVER PLUNKET,† Titular Primate of Ireland, at the King's-Bench, for High Treason: 33 CHARLES II.

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A. D. 1681.

THE 3rd of May, 1681, in Easter, 33 Car. Dr. Oliver Plunket was arraigned at the King's Bench bar for high-treason, for endeavouring and compassing the king's death, and to levy war in Ireland, and to alter the true religion there, and to introduce a foreign power: and at his arraignment, before his plea he urged for himself, that he was indicted of the same high-treason in Ireland and arraigned, and at the day for his trial, the witnesses against him did not appear; and therefore he desired to know if he could be tried here for the same fact. The Court told him, that by a statute

made in this kingdom, he might be tried in the court of King's-Bench, or by Commission of Oyer and Terminer in any part of England, for facts arising in Ireland; and that this arraignment there (he being never tried upon it) was not sufficient to exempt him from being tried here; because till a trial be passed, and there be a conviction or acquittal thereupon, an arraignment, barely, is no plea: for in such cases the party is put twice in danger of his life, which only is the thing the law in such cases looks after to prevent.* He then desired time for his witnesses, which they told him he could not do till after plea pleaded; whereupon he pleaded Not Guilty, and put himself upon the country for his trial. And after some consideration had about time to be allowed him to bring his witnesses from Ireland, the court appointed the day for his trial, to be the first Wednesday in next term, which was full five weeks time.

Cl. of Cr. Oliver Plunket, hold up thy hand, those good men which thou shalt hear, called, and personally appear, are to pass between, &c.

Plunket. May it, please your lordship, I have been kept close prisoner for a long time, a year and an half in prison: when I came from Ireland hither, I was told by persons of good repute, and a counselor at law, that I could not be tried here; and the reasons they gave me were, that first the statute of Henry 8, and all other statutes made here were not re

* I do appoint Francis Tyton and Thomas Basset to print the Trials of Edward FitzHarris and Oliver Plunket, and that no others presume to print the same. F. PEMBERTON.' | "Plunket, the Popish Primate of Armagh, was at this time brought to his trial. Some lewd Irish priests, and others of that nation, hearing that England was at that time-disposed And accordingly on Wednesday the 8th of to hearken to good swearers, thought them-June, in Trinity-Term, he was brought to his selves well qualified for the employment: so trial; and proclamation, as in such cases s they came over to swear, that there was a usual, being made, it proceeded thus: great plot in Ireland, to bring over a French army, and to massacre all the English. The witnesses were brutal and profligate men: yet the earl of Shaftsbury cherished them much: they were examined by the parliament at Westminster and what they said was believed. Upon that encouragement it was reckoned that we should have witnesses come over in whole companies. Lord Essex told me, that this Plunket was a wise and sober man, who was always in a different interest from the two Talbots; the one of these being the titular archbishop of Dublin, and the other raised after-ceived in Ireland, unless they were an express wards to be duke of Tirconnell. These were mention made of Ireland in them: so that none meddling and factious men; whereas Plunket were received there but such as were before was for their living quietly, and in due sub- Poyning's act. So I came with that persua mission to the government, without engaging sion that I could not be tried here, till at my into intrigues of state. Some of these priests arraignment your lordships told me it was not had been censured by him for their lewdness: so, and that I must be tried here, though there and they drew others to swear as they directed was no express mention made of Ireland. Now, them. They had appeared the winter before my lord, upon that, whereas my witnesses upon a bill offered to the grand jury: but as were in Ireland, and I knew nothing of it, and the foreman of the jury, who was a zealous the Records upon which I very much rely Protestant, told me, they contradicted one ano- were in Ireland, your lordship was pleased to ther so evidently, that they would not find the give me time from the 4th of the last month to bill. But now they laid their story better to- this day; and in the mean time, as your lordgether; and swore against Plunket, that he ship had the affidavit here yesterday, and as had got a great bank of money to be prepared, captain Richardson can testify, I have not disand that he had an army listed, and was in a patched only one, but two to Ireland, into the correspondence with France to bring over a counties of Armagh, Dublin, &c. and where fleet from thence. He had nothing to say in there were records very material to my dehis own defence, but to deny all so he was fence; but the clerk of the crown would not condemned; and suffered very decently, ex-give me any copy of any record at all, unless pressing himself in many particulars as became a bishop. He died denying every thing that had been sworn against him.". Burnet, 502.

* See the Case of Whitebread and others in this Collection, vol. 7, pp. 79, 311.

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