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C OBBETT'S 



COMP LETE COLLECTION 



or 



State Trials. 



VOL. vin. 



f 



i- :/ 



I • 



COBBETT'S 

C O M P L E T? E e^ L L E C T I O N 

• - ••••- •• * 



A K . * K ^ V 



• • • • 
» - « ' 



• ••«•• • •• • 



• . • • 



• • • 



OF 



State Trials 



AND 

PROCEEDINGS FOR HIGH TREASON AND OTHER 

CRIMES AND MISDEMEANORS 

FROM THB 

L\RLIEST PERIOD TO THE PRESENT TIME. 



VOL. VIII. 

COMPRISING THE PERIOD 



FBOM THE THIRTY-SECOND YEAR OF THE REIGN OF 
KIXG CHARLES THE SECOND, A. D. I68O, TO THE 
THIRTY-FOURTH YEAR OF THE SAID REIGN, 

A. D. 1682. 



LONDON: 

PB11CTED BY T. C. HANSARD^ rSTERBOROUGH-COURT, Fl.fiET-STRBET. 

piLUHBD BT Ro BAOSHAW, BRYIIOB8-STRBET9 eOVBNT-OARDEN ; AND SOLD 
I IT J. BUDD, PALIcMALL; J. FAULDER, NEW-BOND-STREET; SHERWOOD, 
iBULT AMD JONE89 FATBR-N08TER-E0W ; BLACK, PARRY AND KINGSBURY, 

UDENUALL-STRBBT; bell and BRADFUTE, EDINBURGH; AND J. ARCHER, 

rBLlN. 

1810. 



• ■ • 



. ' • • 



HI"! ' 



1 .'^H.Sf >f; 



«i.i 



I • 



V . 



.•riif» • 



TABLE OF CONTENTS 



T* 



VOLUME Vllt 



STATE TRIALS IN THE REIGN OF 
KING CHARLES THE SECOND. 



* * 



Pagt 
Proceed! NOS tgainst Kicharb Tsompson* Clerk, for a High Misde- 
mcanor agaiott ihe Prifikge of Paiikment, a. d. 1680 ;N.]»..^ L 

tf75. Caae of Jamei SmiiE^ for treasonable Opinioiis and DecJarations, a» ». 

IMO [N.] i « 12» 

W*^. Case of Jotm Nivin, Ctt»tiiti of the SIlip t^eftulie of Loildoti, for LMftiug- 

makiag against James Duke of Albany and York^ a. d. 1680 [N.},.. 4i0 

175. Proceedings in PariiaiMnt agaim S^waaft ttsTttotiR, esq. a Mettber of 
the Honse of Commons and Treasurer of the Navy* upon an Impeach- 
oMnt of High Crimes^ Misdemeanors^ and OfTences, a, o. I(y60 187 

Mtii. Proceedings againu Lord Chief Justice Scaooos before the Priry Covn- 
cil ; and against the said Lord Chief Justice and other Judges in Par- 
Gament, a. d. 16M • •• ,,.. it% 

177. PhKeediags ia P^Uameni against Edwabd FiT»iABais» upon an Im- 

p o M i i wf la for High Treason, a. d. Ii08i «..«...oti.« SSI 

Proceedings agninit Edwabo FitsSAmaia in ihe King^s-Bcncfa, opwi 
hie Arraignment and Plea to an IndictmtBt for High IVmson, 
A.B.10SI1 •••••• Ml 



TABLE OF CONTENTS. 

Page 
A Naekatitb, being a true Relatioii of what Discoarse passed be- 
tween Br. Hawkins and Ebward FinHARRis, esq. late Prisoner 
in the Tower ; with the Manner of taking his Confession [N.] 500 

Truth Vindicated : or a Detection of the Aspersions and Scandals 
cast upon Sir Itobert Clayton and Sir Gearg^ Treby, Justices : 
and Sliiigsby Bethell and Henry Cornish^ esqrs. Sheriffs of * the 
City of London^ in a Paper published in the name of Dr. Francis 
Hawkins, Minister of the Tower» intituled ' The Confession of 
« Edward Fitaharris/esq.' fcc [N.] 411 

Remarks on Fitsharris's Trial, by Sir John Hawles, Solicitor Ge- 
neral to King William the Third 426 

S7S. The Trial of Dr. Olitsr Plunket, Titular Primate of Ireland, at the 

I^ng's-Bench, for High Treason, a.d. 1681 ; 447 

in9. The Trial of Sir Miles Stapleton^ bart. at York Assizes, for High Trea- 
son, A«D. 1081 ....'. • 508 



iBO. The Trial of George Birssr, isit Derby Assfaes, for High Tireason, being 

a Romish Priesty a.o. 1681, •f«* • 526 

981. The Trial of Stefhen Coixippx, at Pzfoni«.for High Treason, a. d. 

1681 550 

Remarks on Colledob's Trial, by Sir John Hawlbs, S61icit6r- 
General in the Reign of King William the Third 723 

2ifi, The Trial of Slingsby Bethel, esq. at the Bridge-House in Southwark, 
for an Assault and Battery on Robert Mason, at the Election of Mem- 
bers of Parliament for the Porongh of Southwark, A. o. 1681 747 

9B3. Proceedings at the Old Bailey, upon a Bill of Indictment for High Trea- 
son, against Anthony Earl of Shaftesbury, a. d. 1681 .>• 759 

Remarks on the Earl of Shaftesbury's Grand Jury. By Sir John 
Hawlbs, Solicitor General in the Reign of William HI 835 

284. The Trial of the Earl of Argylb, in Scotland, for Treason, a. d. i68 1 84S 

255. Proceedings before the King in Council, against Arthur Earl of Ancle- 
SEY, Lord Privy Seal, upon account of a Book reflecting on the Con- 
duct of James Dake of Ormond, Lord Lieutenant of Ireland, a. d. 

1682 [N.] , 990 

2^0. Proceedings against Tbmpbrancb Lloyd, Mary Trbmblbs, and Susanna 

BawARDs, for WitcfacnA; a.d: 1682 |,N.] ..••...;•.... 1018 



% ■ • ♦ 



«-. 



TABUB OF C0NTEN1& 

3B7. Proceeding! between the Kino and the Citt or Loin>oii« on en Informa- 
tion in nature of a Quo Warramto, in the King's Bench, a. n. 
1681 — 168S 1039 



M. The IVial of Nathaniel Thompson^ William Pain, and John Farwbll, 
at the Guildhall of London, for writing, printing, and publishing 
Letters, importing that Sir Edmundbury Godfrey murdered himself; 
as also for sereral Falsities relating to the said Matter printed in seve- 
ral Papers, called ** The Loyal Protestant Intelligence,'' a. d. 1682 ••• I3M 






COBBETTS 



, •. IV' 



COBBETT'S 

COMPLETE COLLECTION 



OF 



State Trials. 



272. Proceedings against Richard Thompson,* Clerk, for a 
High Misdemeanor against the Privilege of Parliament : 
32 Charles 11. a. d. 1680. 



HoisE or CoMMom, November 9, 1680. 

Ordered, That RkhardThompson,tclei^ 
he irot Ibr ia custody of the serfeaot at anns 
MfeD^Bg this UouWy to answer at the bar of 
Ab Hooise, for his high Misdemeanor against 
ik hivQege of this Honse.t 

* * I appoint Frsncts Smith, and Bemamin 

* &nw, to print this Report and Resomtion, 

* pnacd by me, according to the Order of the 

* msK ot' Commons : Aad that no other per- 

* «ft presome to print the same, December 24, 
' too. W. WiLUAMs, Spttker.* 

tOUoiixon calls this Thompson a " noisy, 
halEfl!. ienorant priest," and adds, ** I talce 
ikanv lILerty wiUi him because I Imew him." 
binean that the king soon after these pro- 
(Mm^s^ made him dean of Bristol. 

1 1 ha«e not foand In the Journals any ear- 
Ker fDtn' concerning this matter of Richard 
Thmpsun, nor does it appear so distinctly as 
■i^k be vrisbcd in what resjiects his ** high 
•rt nn eanur" was " against the privilege of 
Ac HoQiie.'* 

h if obs^nrable that Mr. Justice Blackstone, 
■, ipcaking of Privilege of Pariiament, seems to 
SKdK term in its more confined sense, of an 
■Boarty or exemption from such direct inter- 
i^faoQM and niokirtations, as obstruct the ezer- 
Ms ol' iha functions ot* nariiament, and from 
I Ai labUny to hare their medom of speech and 
tasa aoiil prrKMsedings in parliament impeach- 
^jlw^iKsbdoed in any coutt or ulace out of par- 
He docH inuped say, tnat to assault by 
I member of either House or his me- 
raut is a hicj^ contempt of pariiament, 
Mtti-nr punished with the utmost severity : 
[MviUi this exception, he seems to contem- 
afl tlieir pririWgcs,and especially when he 
b d'lhetr indefiniteness, (bee the note to tlie 
ttl>ihiriey aod Fag^g* anfff, toI. 6, p. 1 If 1.) 

VttL VIII, 



December 8. 

A Petition of Richard Thompson, clerk, in 
custody of the setjeant at arms, havinff been 
read, it vras ordered, That the consi&ntion 
thereof, as also of the matter oi* the complaint 

as possessed by them almost exdusivdy for the 
purpose of protection from attacks of preroga- 
tire. And of such privileges it may he tndy 
said, in the words of the i^monstrance and Pe- 
tition presented to Charies the First by both 
Houses on Dec. 17th, 1641, (Sec 1 Clarendo:i's 
Hist of the Rebellion, S28. 8vo ed. 2 Cobb. 
Pari. Hist 978.) that <' they are the Urth-right 
and inheritance not only of the two Houses of 
parliament but of the >vho1e kin^om, wherein 
erery one of the king's subjects is intcrei^ed ;** 
but it is by no means clear that this mrvy witli 
equal truth be said of an uncontmll^^l discre- 
tionary power in each House of parliament to 
imprison for whatever such House of ^liament 
shall adjudge to be a contempt towards itself: 
more particulariy if a like uncoiuroUed discre- 
tionary power in courts is to be supported bj 
analogy to this. 

Upon the whole matter it may, perhaps, ba 
safely said that whatever be the extent ot par- 
liamentary privileges, every patriotic member 
of parliament will concur in the sentiment ex- 
pressed by the learned and upright sir Robert 
Atkyns in the Case of lord Clarendon. (SkmwiA^ 
6 of this ColU.H:tion, p. 355). " Though privi' 
lege is much spoken of, I snail never faS fond of 
any privilege which shall intrench upon my li- 
berty as a subject :" and that every wise House 
of Commons, knowing that confidence and af- 
fection between them and the body of the peo- 
ple is the great foundation of their dignity and 
importance in the state, will be very abstemious 
in the oxercise of any power by ^* hich tliat oon- 
fidenc*e and aficctioii is liable to be diminished or 
impaired. 

B 



3] STATE TRIALS, 32 Charles II. l680. 

for \vhicli he stooil coniinilteil, shoulil hv rofi-ired ^ 
to a coiuniitlf-c to examine tiu' niattcT tlion'ot', 
antl to nport the same, vith their o|)iiiUMiii 
therein, to ihe House. 

Vtctnihtr 2S. 

Coloml Birch reports (Vom thi^ rommitlee to 
whom the e\amiiKition oi'ih<' eoinpluint o^iiist i 
Hielianl Thompson, elerk, was reierred, Tliat 
the eoiiiiiiitt("<.' havin;;^ taken ihe same into iheir ; 
ronsiikration, had directed hiin to make a sjie- ! 
ciai Report thereof to the H(»iise: \«hirh he 
read in hiN plaee, and ahen^ards deKvercd the ! 
samo in at the elerk*s table. ' 

Onlered, That the said Ke(K)rt be read at the 
table to-morrow moniiu!;. 

December 24. 

The Report fi(»m the Comniittee of the Com- 
mons in Parliament, appointed to consider 
the Petition «»f Itichanl Thomitson, atul to 
evamine the matter of the Complaint 
ag;aiiist him. 

Tn the iirst pluer, the committee read inito 
the said Tlioinp.si;n, the heads of the comolaints 
against him ; which (for the most part) he de- 
nying, desired to have hi^i accnsei*s brought 
tdce to face: wheitnipoii the committee pro- 
ceeded totlie examination of witnesses, to prove 
the said complaint. 

The first ^Vitness examined, saith, Tliat 
there being a gix'ut noise aiui rumour, that Mr. 
Tliompsonnacf preparctl a Kernion to be preach- 
ed on the .30th of January, 1679, the said 
witness went to tiie saiil sermon, antl did hear 
Mr. Thompson publicly declare, that the Pres- 
Nyteriaus weru suc:h persfins, as the very devil 
bhiflheil :it them ; and that tlie rillaiii Hamp- 
den gi*nd;^l, and maile it more scruple of c(Mi- 
9ci«)nre, to vfive twenty shillings to the king, for 
supplying his neressities by Ship-money and 
Loan, whit h was his right by law, than to raise 
rebeliivn u'^aiiist him. Aitd that the Presb^'te- 
riansure \for>-e (aiwl fur more iutohruble) than 
€i'iher pdesls or Jesuits. 

The second saitli, That hearing a fcveai talk 
and noise spriad nf a sermon to be preachiHl by 
Mr. Thomp.^in, on the ."Oth of January, 1670 ; 
be was niiml<*d io hiartlu^ same, and aeeoiding- 
ly did ; atMhich he urit some notes: amongst 
which, he siiith, that iMr. Thompson openly 
preached, that the dcy il blushed at the i*reAhy- 
terians ; and that thg villain Hampden grudge«l 
more to give the king tw4Mity shillings, which 
was his just thie by la\t (Ship-moiuy and I^an), 
tlian to i;^si^ CL'lK!lii(in against hiin ; and tiiat u 
Presbytenan brother, </w<« /«/«, was as gK.-jit a 
traitor by the statute, as any priec»t or Jesuit 
wlwil-socCer, That he lunir<l,*that Mr. Thomp- 
son said, t!iut ho luiped the Pria>byterians would 

In sir Edwin Sandys's Case, Mr. Chanct'llor 
of the Dutchy wisely observed, * It is an easier 
' matter to raise an* inflammation by tlie spe- 
* cious title of privib^'S than to allay it ogam.' 
See Proceedings ami Debates of tlie House of 
ConuuoDs ia 1620, and 1621, vol. S, p. 259. 



.'^Proceedings against R.ThompsOH'^ [ 

be pulletl out of their houses, and the gaols filh 
>vitn them : and wishuil their house's burnt. 

The third snith, lliat he was citetl to tl 
BishfipN (.'ouil, to riHvife the Stu'inment la 
Easter ; but being out of ti>un at that time, d 
ntceive it at a place caHe<l Purl in ^\'ilt5hirc 
and that a month ai^er he came htmie, wi 
again cited to the said Court, and lie did accon 
iiigly appear, ai:d told the Court, that he hopi 
his absence and biisini>ss might Ite accepted fi 
a lawful excuse ; upon \\hich Mr. Tliompsi 
innnediatcly said, that they would pi-oceed 
exconmiunicate hhn. Ujpon which, this ii 
formant produced his certificate, of which tl 
Chancellor approveil, and said it was lawfi 
Hei-eupon Mr. Thom^ison said, that his recei' 
ing the fekicrament from any otlier ministc 
than tbe mini.ster of the parish wherein 1 
dweUed, w\\% damnation to his soul ; and th 
he would maintain this doctrine. 

The ibiutli saith, That being at Brisl 
fair he heard a great talk and noise of 
Hatire -sermon pi-epared, and designcil to 1 

{ireached by Mr. Thompson against the Pre 
i^ierians, on the SOth of January, 1679 ; ai 
tfiat very many resnrtetl to hear bim : in wkii 
sennou the said Mr. Thom|Nion declared ai 
said, that there \«'a.s a great talk of a pk>t : b 
(says he) a Pi\!sbvterian is tlie man ; and iv 
ther added, that tfie villain Hampden scrupli 
to give the king 20j(. upon Ship-money ai 
Loan, which was due by law, l»ut did not scai 
pie to raise rebellion against him. 

The fifth saith. That Mr. Thompson, ia 
sermon preached tlie SOth of January, 167 
did say, Uiat the presbyteriaus did seem to M 
vie Mariana, and that Cah in was the flnl Ihi 
preai>hed the king- killing doctrine ; and A 
afU'r he had quoted Calvin oiten, said, if this I 
true then, a Presbyterian bnrthcr, qua taliiy 
as great a traitor as any ]n*iest or Jesuit : ai 
that then he condemned all the in'occedings 
[Hirliament. 

The sixth saith, Tliat he the said Mr. ThoiH 
son, had utteivil many scandalous wordu co 
corning the act tor burning in woollen ; aflSif 
ing, that the? makers of that law ^u-re a c«i 
pany of old foi»ls and fanatics, aiul tliat 1 
w<iuld bring a school-btty should make a beM 
ad than that, and construe it \%h«'n he hud doi 

The seventh saith. That Mr. Thom|i8on il 
SfTiuon by him preaelu^l (while petitions i 
sitting oi' this |iarliament weit^ on ttiot) spca 
ing of a second rebellion by the ^H.*otc:fa, w! 
ha<l frametl a formidable aimy, and oaiue 
far as Durham, to deliver a petition foraoolj 
and that they seemed ratlu'r to command fh 
petition their sovertign to grant ; and compi 
mg that i>etition with the then petition on fo 
greatly invciglied against it, and scoffed nm 
at it. 

The eighth saith, That Mr. Thompson (wli 
the [lotition was on fi>ot tor the sitting if tl 
parliament) used at the funeml sermon of I 
Mr. Wharton these words {pointing at the A 
said), that he was no schismatical petitiaM 
rebel, aadtUit by his iogtigatioin tne gen 



STATE tHIALS, 32 Crahles II. leso.^Prhilege of Parliammt. [G 



Bristol made a pesentment of their 
on against petitioning for the sitting of 
uneat; that^e said Mr. Thompson 
him, that he was governor to Mr. 
vhcn he was beyond sea ; and said, 
had been vety often (and above one 
times) at mass in the great chiirch at 
d usually gave half a crown to get a 
bear a certain I>octor of that church, 
fie was like to be brought over to that 
and that when he went beyond sea, 
yvw but that he miffht be of that re- 
ore bis return. That ht is very ceu- 
ind frequently casts evil aspersions 
reral di^-ines at Bristol (»f great note, 
?hctwind, Mr. Standfost, Mr. Cros- 
. Palmer, and others, saying, that 
'eot to their lectures were the brats of 

nth saith. That Mr. Thompson in his 
r inveighed bitterly against subscrib- 
>ns for sitting of this parliament, say- 
it was the seed of rebellion, and like 
one ; and that the devil set them on 
id the devil would pay them their 
aying', that before he would set his 
iich petitions, he would cut it off, yea 
bem off. 

nth saith, Tliat about two years since, 
he chancel of 8t. Thomases church in 
"here queen Elizabeth's effigies is, Mr. 
n pointing his finger to it, said, that 
he worst of women, and a most lewd 
noos woman ; upon which this in- 
replied, he never neard any speak ill 
thereupon Mr. Thompson said, she 
ctter than a church-rubber, and that 
legun it, and that site fmished it. 
eventh, Howe, saith, That in the year 
waitcil on the mayor to church, and 
Thompson, who was there, railed at 
a^ing, he did more hurt in robbing the 
Dfis, than he did good by the refor- 
That afler dinner, Mr. Thompson 
this informant, and claps his hands on 
Iders, saying. Halt, boy, had queen 
I been living, you needed not to have 
rd- bearer of Bristol, llie said Howe 
why ? He rpp]ie<l, She loved such a 
oe (so wfrll) as he was ; and he would 
a very fit for her ihiidgery at IVliite- 

rdfth saith. That he heard a great 
a sermon tf> br; preached by Mr. 
• oothe SOth of Jaliuary, 1679, to 
d put of tlie same tune ; and that he 
ni 9X the same sermon, in which Mr. 
ft aaid, tliere was a gn>ut noise of a 
hi, but, sa^r-s he, here is nothing in it 
■Ajterian Plivt ; for here they art? 
■t to petition for the sitting of the |nir- 
^* ihft end of it will lie to bring the 
io the block, as they have done his 

audi laith, That in January last, 
if then was a petition going about 
( cCthis perhwnent^'whcn Mr. 



Thompson, in Retlcliff church, in his sermon 
said, it ^'as a seditious and rebellious petition, 
and rather than he woidd sign it, his hand 
should be cut of{l 

The fourteenth saith. The 8tli day of April, 
he ^iug to pay Mr. Thompson his dues, 
speucing i^onceniing the meetcrs in private ; 
Blr. Thomjison said, he would haul them out, 
and fill the gaols ^vith them, and hoped to seu 
their houses a fire about their ears m a shoit 
time ; and tliis he, the said I'hompson, dou- 
bled again and again. 

Tlie fifteenth saith, Tliat about December, 
1679, Mr. Tliompson came to visit his mother, 
being sick; and discoursing of religion, 
Tliompson said, if he were as welt satisfied of 
other thin^, as he was of justification, auricu- 
lar confession, penance, extreme unction, and 
chiism in Itaptism, he would not have been so 
loB^ separated from the Cutholic Church. 
And further affirmed, that the Church of 
Rome was tlie true Catholic Church. Ha 
further endeavoured to prove extreme unction, 
and auricular confession, as well as he could, 
ont of the Epistles. Further, he hath heard 
him say, the king was a person of a mean and 
soft tenii>er, and could be led easily to any 
thing, but yet a Solomon in vices ; but tliat the 
duke of \ ork was a prince of a brave spirit, 
would be faithful to his friends, and that it was 
our own faults tliat he was a Roman catholic, 
in that we forcetl him to fly into France, where 
he embi*aeed that religion. About the same 
time, he the said Thompson said the church 
would be militant ; but greatly commended the 
decency of solcumizing the mass in Fiance ; 
and that it was |)erformed with much more 
reverence and devotion than any other religion 
doth use. He further hoard him say, in a Sct- 
mon, about the time of petitioning, he would 
rather cut off his hand than sign it, and had 
many bad expinssions of it ; that it was the 
seeil of rebellion, and like forty and Ibrty-one. 
And further, the said Mr. Thompson, at one 
Sandfoi-d^s shop-diKir in Bristol, spoaking of 
Bedloc, said, that he wfis not to be believed, 
bcf^ause Bedloe had said he, meaning Mr. 
ThomjMon, was at St. Omer's, whom Mr. 
Thompson said he was not ; and that Bedloe 
was of a bad life, and in many Plots, and not 
to be credited in any thhig he said. And tliat 
in another discourse he ctmunended the Rom- 
ish clergy tor tlieir singk* hfe, and is him- 
self so ; and did at the same time vilify and 
rail at the English clert^y for mairying ; say- 
ing, it was bctler for u ch'rgynian to he gelt 
ihan to many ; and that tlie Calvinists in 
France were l^clierous fellows, and could scarce 
l)e two years a priest without a m lie. About 
the time, an<l af\er the election of sir Jolm 
Knight to this pavlianient, Mr. Tliompson 
said, he was not ht'to he iK-lioved, and as bad 
as any fanatic. He fultlH^r said in the pulpit 
at Mt. Thomases, that after excommunication 
by the bishop, witliout absolution from th6 
spiritual court, such a one was surely damned; 
and he would pawn las soul for tin' trutli of it. ' 



7] STATE TRIALS* 32 Charles il. iGso.^Proceedingi^gahut R. Thompson-^ | 

Evidence ended ; Mr. Tliompsonf afler tlie 
evid^ce given by every particular person, face 
to face, ^'us asked to crery one, if he had any 
micstioas to ask before tliey called another P 
Who answered, he should w»t say any thing' at 
|»iCM*iit. When tlie \%itiit»s.ses before-mention- 
<'(.! wei-c all exainini^, IVIr. Tliom|j5on being de- 
si reil to nuike his deteuce, and tleclare wnellier 
Iv.: were t^iilty of the niattem laid to his cliarge, 
did for tiie greatest {>art confess words spoken 
to that cftect ; and in other thiiics endeavoured 
to tnni the words with more favour towards 
himself; hut tlie witnesses being of great cre- 
4lit, and many more being ready to have made 
good the same tilings, the Committee Icxdicfl 
upon the business to be of a high nature ; and 
therefore ordered the matter to be reported 
fipet-ially, leaving it to the wisdom of the 



very justly odious as he was to the majority < 
his sulgects — ^without a House of Commons \ 
carry on his government during the four la 
3'earsof hislile. 

In his ' Declaration to all his loving subject 
touching the causes and reascins tlmt niov< 
him to dissolve the two last imrlianicnts* (whic 
Declaration, his majesU' in council, on the 81 
of April, 1681, ordered to be printed and pul 
lished, and read in all churches and cliapc 
throughout the kingdom, and which, as it a] 
pears, was drawn up by lord chief justii 
^iortlk) he specially mentions in the catalogi 
of the vicrious measures of the House of Con 
moiLs, < arbitrary' orders for taking our sul 
jects into custody, for matters that had no n 
lation to Privileges of Parliament.* 

The mention of this matter by two of tl 



House. contemporaneous historians, Roger Coke ai 

A A L.^^ • • • Ai TT Ai ^^ Jtoger S'orth, is curious and iierhaps instrai 

A debate arising m the House thereupon ; .-.J^, ' * '^ 



tive 



Resolvetl, neni. eon.. That Richard Thomp- 

majesty 

f^'4!*^^!-.J"iT"T ^•"''^7.' "Jj Tr^!J searching into the discovery of the "Popi 

popish pi ,ncii.les, decrying the Pop sh PK p,^^ J^ exasperated agaiiit the Tories,*^fi 

1«: IT"^ *'T'.'*'"k Tl\ '^n JT? ?™' ridicijing the Popish PlS^ and for abho;ri« 

nni^-iT'"'';-^""^^'^^^^^^ ptitionincr the king to le^ the parliament m 

perty of the subject, and the rights and pmi- 1^ ^^^^ ^^ prosecute and secure the natic 



fo^^tloii promoted Pope^v, by asserting :LSn;^r S^c^V o^t^^^^^^^^ 




Oiilered, Tliat a Committee l>e appointed to ters, and of the Coiniiious of this parliame 

pre[)are tlie said lin|>eachiiient. Anil it is re- against the Tories, should be taken for preo 

ferred to sir Win. Jones, and others : And the dents by any parliament in time to come. 

Maid Committee is imfiowered to receive further *Ml1ien parliaments met annually, or i 

informations a^^ainst ihe said Richanl Tliomp- lea-s-t fi-eqiioiitly, I think cnm])laint (^annot I 

sou: And to send for persons, papei's, and recortls. found against any man for Rre<ich tif PrivileiTi 

r r .-co« hut when there *were lonijiiitenals of parUi 

January 5, 1681, ^ ^ i *i ^ i 

^ ' ments, from whence the consequence resolve 

A Petition of Richard Thompson, clerk, in into lonr^ sittings of parliaments, which begs 

custody of the Srrjeiiut at Arms attending tliis in the n'igii of Henry B, then the inconvenieni 

Uousf*, was r(*ad. of privilege first began ; nor do I finil any Im 

Ordore<l, That the said Serjeant at Arms be fore the latter end of Henry 8, nor does 31! 

imp<iwerf^d to reeeivf suiiicient security for the Petit, in his Preceilents [of ftxemptions] froi 

forthcoming of the said Richard Hionipson, to arrests, and other privileges of parliament 

answer to tlie Impeachment of this House men, cite an} iK'fore Uie GUh of Henry 8, i 

against him. case of 'Mr. George Ferrers, bui^j^ess Vor tl 

The Parliament was soon aHmvanls Jis- l°„'i'l,f "yrL"*'';"*"*! "'^^i*"'".i'^'! 

■olve.1, an.l I havo not foun.l in the Journals ^^ """ '*"* *"'«'" *"' ""=''* "«»r".V. «l«t I 

„^„ 1 I ^ ,- ••*. .^ «iiii«ia takes up near seven naffes to recite the pre 

T^Tomn^n' P"^''"*;^* "«.-»"»' »''" ceding^ of th« <;onZn8 «,K.n it ; and L 

*^ * the king lieing advertised there(»f, called tl 

Chancellor, the Judges, the S|M«ak(M- of tl 

■ Commons, and the gravest |»erKons of tlieu 

wherein he commended the wisdom of tl 
Commons rn maintaining their privili'Sfi^, ai 

It should be noticed, tliat at the time when that the privileges of parliament extend to tl 

this Case occurred, the House of Commons servants of the Commons from arrests, as vn 

praetiseil commitments, as for Breach of Pri- as to the iiersoiis of the Commons. It is woi 

vilegc, with a frcqui^ncy and extent which seem thy observation with what solniety and justM 

to have excited much disgiist and discHnileiit ; the Commons proceeded herein : tlie^- orilen 

and it is not improbable that the prevalence of tiieir seneant forthwith to repair to t^e Conipt 

those feelings thus excited greatly contributed in Bread-street, wherein Mr. Ferrers was con 

to enable king Charlea the 8Mond — odious, and mitled, with his maoei to demand Ins deliver] 






STATK TRIALS, 32 Charles II. 16S0.— PWui/fjre of Parliament. [lo 

nh'.o'i tilt* scriear:t iliil lo the officers of the i pear before tlicin, to an-^wer for themselves 
('•>:.. ;•:• r. uho not%%iihstan(liii^ refused to do I itefbrc tlie House passed any eensure ii|mu 
II, .:r. 1 U'ai and hurl some of the serjeaiii's ihenf. 3. That in none of those ceiismvs tlicv 
i«r;iir>.. aad hiuke liis mace; and dunn^* the enj«>imd lh'? '.!« !iiH)i!ei\t to pay their fees to 



b?sM{. ihi- sheriifs of Lonilon eatiic in, Mho 
r*M:itrii:uK-e<l the otricers of the (Jfiinpter, and 
iri"»if**l to deliver 3Ir. Ferrers, and <;ave tlie 
KTJj^nt proud lanf;ua<re, and c^iitemp^uoiiNly 
irjrtltti his mesNa^^e : 1 lerciijion the Commons 
nKLinandt-l the <^rieani to ve<;i!ive the sheritrs 
U Uinduii to deliviT 31 r. Fe.rers hy shewing 
iImu hn ma4*e, which >vn.s his wnrrant fiir so 
dfitsg. W ber«*upoti the sheriiis de1ivei*ed him 
ictiTiitD'^ly ; but then the :»oi;i;-ant havini^f fur- 
iW (vuiniaoil from the (.'onniions, chars|^?ri 
(fieshmlii t(i ap|iear iH;rs<»naU3' on the r.iorrovv 
ir turfit of the cioek, hei«i*e the Speaker, in 
tlie BeiiMrr House, to briiiij: thither the Clerks 
«l tiK Omifter, and such other of their otiieers 



tlii'ir :i(T|": lit, f<»r the si'rjeant is tin* Ling's; 
oiii.rr; i-u-: i»;. tiu* ^tith \\ eM. l,nootiieer of 
th< ki{»«f\ «^;.i'li tuke air, fte or nnanl for 
diiinij liis ( 'l.'i' .", hut what l:e n eeives from the 
kinjf, urM.n p**r'li> of ren',ierii:i;' douMe to the 
plai.'iti.I, ai'.iil!.' ;':.iih«'r puniNlud at t!u' will of 
thckip.^'". /i.il ^'.r Edv.ard Coke in his first 
fnst. III). 3. set. V'M, til. Kxtoitioiu-rs, says, 
this wasUi;*a!:1ii'iU eor.nnon law, and llie yn*' 
nnllios rdiK.j'. hy thj statutes ; and that, thoucrh 
some Minutes siiur*' hti>e alioncnl the ki'.iir's 
oflieers in soniii eases to lake ft'es for exeeutii-ji^ 
their <»H'*e ..':;, y-t none otiivr can be taken but 
what sueh statutes allow ; and that all olfieers 
of tli<' kiiijf, who take li'es olhr-rwise, arey^uilty 



t» ^ere |iarti€» in the fray, and to take into t>f j)erjiiry. I would know by what law the 
ri>ii«iy one White, who had wiltinjrjy prf>- I ('ommons^ sevjennt take>;his fet.'S, uiid how the 
OTk^i Uw said aiTC'St in contempt of the privi- Couunons <'an abi>olve huu from pcijury lur 



k^oi parliament. 

'* Next <la\' the two sheriffs, with one of the 
drfis and \Vbite, apiiearefl in the Commons 
Uiiue ; where the Si>€alie»' cliaq;inc«; them 
vitii tbi:ir CfHitempt and mi«lcnneauor, they 
»«7e cuiiipeUcd to make hnmediate answer, 
vtbiNit beinsT ailmitted to council [qu. to have 
oiJAsel] ; and in conclusion the sheriflv and 
Hiuie werecoiuraittedto the Tower, and the 
Ml (nhich was the ocoaKion of the fray) to a 
ffact i-aUed Little £ase, and the officer which 
^ the arrestf called Taylor, with four other 
Mficcn, to Newgate, wherc^ they remained 
limn the 23lli to the 3 1st 31aix*h, and then were 
Lriiteretl at the bumble suit of the mayor and 
t!<sr ocijer friends. 

- Tbe nevt breach of privile«fe reported by 

Km. k eight ycuirs after, >iz. tlie 4th af Ed- 

nnl6. by oneWithrin^on, who made an as- 

ftuit upon tb«; pc-rson of t>ne Bnuidlin^, liur- 

psiof Nc%vc:i.st'c ; hut the parliament dra\\in^ 

tiFvsjkii aa eniK the Commons sent W ithrinti^. 

t'-bMth<^ pri^y council, but the comicil would 

L'4 zne^dU' in it, and sent the bill of Mr. Brand- 

luif '« ci'inphiint back a|^in to the Commons 

Mt^.rdin£; to the antieni custom of tliC House ; 

vliereupon the bjl was sent to the Lords from 

ikt Commrcns, %% ben Withrinffton eonfess^l he 

k^faa the fray upon Dr. Brandlint^, upon w liieh 

Imt Has comrnitted to tlie Tower. This was in 

ibe >c£r 1660. 

^**Mr. Petit finds net another breach of privi- 
ligetiU the 14th i»f Elizabeth which was done 
hf oat Arthur Hall, for siyidrv lewd 6|)eechcs 
■a well in the Commons House, as abroad ; 
was warned by the serfeant to appear be- 
tbe bar of the Conmious to answer tor the 
, Slid uf^n his knees, u|)on the humble 
or lus Mly, he was remitted w ith a 

Ccsbortatiofi given him by the Hpeaker. 
I obserre them three particuUu^: 1. 
of these breaches ofprivileii^ of 
Ib finmer times. 2. Tbejustii*e of 
in their proceedintjfs of breach of 
>, lo cite the puraou or pcrs««Ds to ap- 





takin<jf such tlH.s. 

** Whereas in tliis pnrliat;u»nt rarely a iliiy 
|)as.sed wherein men U|)on bare sii^i^estioos, 
and absent, were not jn:'i^*d, and e\ccii»i'i:i 
ordered for hiufli and niitorious breach^ of th:* 
Conmtons' privile|ift!S, vet. most of these not 
foreknown, and ofdercnl to Ik» taken into cu.-^- 
tody, tlioujrli in Northundierland and York- 
shire : and rarely 1 think any of them were 
dis4^har(^efl without payings their fees ; nay, 
they oiitnni nil that was ever iluMii^ht of before : 
for on the 14th of December, havinjj^ \oted one 
3Ir. Herbert Ilerrino- to be tak^n into custody, 
and Herrin*;:^ altscomliniv-, the Housf> resohed, 

* That if he did not render himself by a ccr- 

* tain day they would proci^'d n;^alnst lum 

* bv bill in parliament for endeavouring; by 

* his absconding' to avoid tlu; justice of the 

* House.' 

** It was «traTic:e methong^ht that the r<mi- 
mons shoubl be so zealous aii-ainst any aroi- 
Irary |K>wer in the kin*^, and l.iko such a lati- 
tude to theiUbelves, which puts n:e in mind of a 
story I have heard of an old usurer, who had a 
nepncw who had i^ot a lici-nce to preach, ami 
the uncle havinsf ui-vit ilone an^ thinjj for his 
nephew, lieresol\Hl i^ W. re\i-n;je«l npon his 
uncle hi a si-rnion which he Wiudd priMch be- 
fiii-e his uncic in the parish wheif^ he li^t^l : 
he made a most invective sermon a<^ait;>t 
usur}' and usurers ; but alter ihi* scrmtm was 
4lone, the uncle thanks his nephe*.) (or his jvond 
sermon, and •ra\e hiiu two '.iOx. picc«'s : the 
nephew was confouciU'd at tbi.^:, and lH'«;i^etl his 
itncle\ [Kirdon for v«Iiaih>'lnd done, for he 
thoii;;ht he had !;iwi! him ;;fical oifence : * \o,' 
said the uncli , ' Nrplii-w, tro <»n and preach 

* other folds oat of the conceit of usury, and I 
^ shall have the bi.1l(Y o|i|Mirtunity <;t'puttins^ 

* out my money.' " 'iti'oke's Detection, p. 'S.'io. 

" Afterwaiils he" [KenntU") " comes to the 
pfrcat work of morlltyii'^i" thr^e AMiorrers, and 
there he is full as copi«»us and honest ; ft»r he 
tells only of nine or ten, in a naked li.st of gen- 



1 1 ] STATE TRTALS, 52 Charlks II. l6^0.'^Proee§dingi agmnti jR. Thompion 



tlCTien, sent for by the scrjeant at arms, and 
committed by the llonae of Ckimmons, without 
any distinction of caRen or chtmmstanccM, but 
only for detesting and abkorrinc uctiiioiiing for 
the sitting of the parliament. That is his tunc 
upon all occasions. And here he is forced to 
cnrad in by the by, that it was a breach of the 
privilec^ of parliament; which vote did indeed 
come forth at last, otherwise this committinsf 
folks had gone with less colour. But, withal, 
that the proceeding raised a great cHunour in 
the country ; for it had not been usual to send 
for gfentlemen in custody for what thry did 
upon ^prand juries, and in way of duty, as well 
in giv'iug testimony of their loyalty to the king, 
as in resisting a tumuhuous trade of lioud 
gathering in the country, to the yery great dis- 
turbance of the neighbourhood and tlie public 
peace, only because they hapnened to be mis- 
midcrstood in the House or Commons. It 
certainly was prejudicial to the authority of &e 
House of Commons, and added to the dispo- 
sition in the kingtlom of relying upon the king's 
good government ; and many said. Shall 
uiey take away the liberties of the king's ])eo- 
ple^ whp are entrusted to defend tliem against 
all arbitrary powers whatsoever ? And it gave 
occasion to toe king to justify the dissolving, 
saying, as in his declaration, — * That they re- 

* tumcfl arbitrary orders for taking our subjects 

* into custody for matters that hafl no relation 
' to privileges of jmrliamcnt. — Strange illegal 

* rotes ! — declaring divers persons to be ene- 

* mics to the king and kingdom, without any 

* order or process of law, any hearing of thcv 

* offence, or any proof so much as offered 

* against them.' 

«* Tlie effect of tUe«?c harsh proceedings ap- 
peared in the case of one iMr.StavcKor Stowel,* 
a gentleman of a good family in Devonshire. 
He was foreman of a grand jury at Exeter, and 

• Commons Journal, ** Sabbati, 4to die Oe- 
Cembris, 1680, p. m. The House being in- 
formed that 3Ir. William StawcU, in custody 
of the Seijeant at Arms attending this House 
is sick, and not able to appear before this House, 
Ordered, That Mr. Stawell have a month's time 
given him for such his appearance." It sccnis 
probable that this entry relates to the person 
mentioned h^ North. Mr. Hnme, indeed, 8 
Hist. 131. Ed. of ]80r. tells us, that '< the 
vigour and courage of one Stowel, of Exeter, 
an AbhoiTer, put an end to the practice" [of ar- 
bitarj' and capricious connnitntents]. *• He re- 
fused to obey the Serjeant at anns, stood upon 
his defence, and said, that he knew of no law 
bv which they pretended tu c'i»inmit him. The 
llouse finding it eouaily dangerous to proceed 
or to recede, got off by an evasion ; thev insert- 
ed in their votes that Stowel was inJisposefl, 
and that a month time was allowed iiim for 
the recovery of liis healtli." He quotes no 
authority ; so that he *' stood upon his defence," 
mnd ** got dear off by an evasion," (no very 
dignified historical phraseology'), may perhaps 
ht Mcre inrmtiTe decoration. 



presented to the judge of assize the gran< 

Address to his majesty in the tenor of an 

rence. Upon naming him in the H( 

Commons, for the leader of this Abhorre 

was ordered to be taken into custody 

Serjeant at arms. And the Serjeant sen 

his deputy to bring the gentleman up ; 

would not submit to the arrest, the 

might take his course. For which he a] 

that he knew no law for the taking av 

liberty on account of wliat he did as a 

jni-y man, in a court of justice, swoni, 

some such effect; whereupon the ofli< 

turned without his prey. Hiis was a < 

cold water, and took down tlie ferment 

whole business. And the matter was I 

op, some saving that he was indisposed, 

that he could not be found ; an<l so ii 

was fartlier done agaiast him. And ni 

men of any sort were sent for into c 

upon this account ; for the wisest of tl 

tion b^nr^an to perceive there had bet 

many sent for already. I remember w( 

the name of this Mr.* Stowell was famoi 

cried uu in and about London, ami a 

England, and celebrated in healths of < 

as of a geneml afler victory, or rather a i 

assertor of the people's liberty. 1 never 

the like in the case of a private person, 

that of Dr. Sacheverel ; the latter run L 

but the difference was only in * majus et n 

It was impossible a faction (without 

should rage and tyrannise, as the par 

about the beginning of this parliamen' 

not lose the hold they had of the people, 

tliey had led into a tolerable opinion of 

There was scarce a day past, but tlie^ 

gratified with hearing some |>enon wa 

lor in custody fur abhorring. Sir C 

Treby said, they (meaning the House of 

noons) kept an hawk, (which was tliei 

jeant at anns) and they must every du; 

vide flesh for their hawk. 1 can better * 

this fen* truth, because it was spoke to ir 

The Serjeant's name was Topham, an 

much work he had upon his hands, r 

time, * ad terrorem populi Regis,' hail 

it proverhial, on all discourse of perert 

commitments, to say ' take him Topi 

which, for ought I know to the con 

may, from that authentic original, coi 

a proverb at this day. Whatever the 

mitinetits were, the dread was almost 

versal; for after the vote, that tnul 

petitioning should be punislje<l as a 11 

of Privilege, who could say his liliertji 

his own? For, bein"* named in the 1 

for an Abhorrer, <take him Topham.' 

the consequence of this proceedin*/, as 1 

hinted it, may be a lesson ti» all [>owci 

whatsoever foot they are erected, that 

take care to perform their dnty acronii 

the intent of their institntion, thereby m 

themselves useful, and not a terror to the 

pie under them ; for if, instead of that, < 

privite mards, Aey grow uitemperate, 

gnlar, ana injurioas, they wiO lose groum 



i 3) STATE TRIALS, 32 Charles II. iGSO.-^Privilvge ef Parliament. [U 



u Im^h be humbled, if not wholly lost." 
North ';» Examen, p. 560. 

S>, too, Burnet, 1 Own Times, 484, fol. ed. 
of 1724 : 

" Hie House did likewise send their serjeant 
la Bio> parts of Enghind, to briim^ up ahlior- 
rm u ilelinquents : ufion whicli the right that 
ihiy had to imprison any besides their own 
maJbtvi came to be nuieh questioned, since 
tii^i ct'uki not receive an information upon 
oitL. iMir |>roceeil against sucfi' as refusctl to 
Kf^ia behire th«Mii. " In many places, those for 
vkMOiihe}' sent tiieir serjeant refusetl to come 
up It was found that such practice's were 
ptRHirird on no law, and wcTe no elder than 
fata Elizahetli's time. While the Hmise' of 
ranaK'Ob usi^i that power gently it was sub- 
miOMl to in res|ie€<t to it ; hut now it grew to 
he 10 much extended, tliat many resolved not 
tuMibraitto it." [Query, as to what Burnet 
■i<>of the Ht«i»e"of Commons not proceeding 
•CUKt Mich as rei'used to appear before tliem, 
•it tlk: Proceedings in the Case of Jiiv and 
Ttfibau. A. D. 1689, infra,"] 8ec, too, Kalph, 
ill»,J17. 

Mach anention has been lately (1 write in 
uv BioDth of June 1810) directed to the topic 
«f caaminneffii hy the House of Commons, 
ia coBiequeiicc of the publication of a Letter, 
h**n '' Sir Francis lUirdett to his Constituents 
iiM>inictlie power of the House of Commons 
In iai|>rMm iLe people al' Engkind." And in 
iMibon M the copious discussion of the sub- 
jfcct in {larlianient, it has been ventilated from 
tlirpcsft with m^K'b erudition. Mr. WilliTuns 
^}vi hns piiltlished a learned '* ArGfumeiit u|>on 
thk|aRidictiiHi<it* the House of Commons to 
riiMmir a% caNen of Breach f»f Privih^ge," and 
ajwveriul writer, (Mr.Efans) uruler the sigiia- 
tmt ut * Piihliffda* hiu niiblished *^ Six liCtters 
6aia« lilierty of tlie Sunjecf and the Prinleges 
i*f ttir HfMine of C'ooimons." So lik«*wise have 
been ^li<4ied, ** TIm* Spcf*ch of Mr. Ponsoubv 
fin tbt- question relative to tlie Privileges of the 
Houpttr •A' ir<inMiionM as connected with the 
o4' Sir Fnuieis Bunlett and (iaie 
;" '^Sper'ch<tf U'iliiant4(him,'t>sq. Sec.;" 
** 4 i'^MiciHe Aecmmt of the Origin of i\w two 
Hoi!i«n of PaHiameut, with an impartial State- 
■tfM 'f the FVtvileges of the Iloiisf* of Com- 
umitMk. aiid of the lilierty of tlu- Suhjei't, by 
fcflward Cln-i««tiuo, cm). Vc.*' ; ** The Imw and 
ot Par!ianiiri«t in eases of Pri« ilegi'S and 
V*'. hy Fram-is Ludlow Ifiilt, es4|. ;'- 
**A %*indi«*ation of llie Privileges of the Houso 
rf CovMnfjnfs >ec. by Henry Miuluf^k, jun. 
** The QneMtion cimsidercd : 11ns* the 
of Commoii«i a riglit of counnittnl to 
He. by K. A. Bunialiy, eM). ;'' and an 
mis ^'^.Sh«*rt Examination into tlic power 
Hoi!ae t4' Commons to cnnnmit, in a Let- 
Hr FraiMfLH Burdett, bait.** Tlie House 
« also liaa, by Votes of 1 ith and 93d 
1810, caused to be ptiuted the following 
fits: 



These Ri-jwrts are as follows : 

REPOirLS from the Skllct CoMMrrxEE ap- 
pointed to consiiler of the 1^'ocecdinga 
had, and to bf.> hiul, witli reference to 
the several P»|iei-s signed ** Fiuncis Bur- 
df.1t;" the Contents of which relate to 
his being apprehended, and committed to 
tlie Tower of lymdon. Together with an 
AiTENoix. [As amended on Recommit- 
ment.] 

FIRST REPORT. 

It appears to your Committee, afler referring 
to the Onler of the House of the 5tli day of 
April last, for the cfuumitment of sir Francis 
BunleU to the Tower ; the Warrants of the 
Speaker t«r that purpfise ; the Ix^tter of sir 
trancis Burdett to the Sjieaker, dated the 17th 
day of April List ; the Report and Examination 
of the Serjeant at Arms, touching his proceed- 
ings in the execution of such warrants ; the 
notices to the Speaker referred to your Com- 
mittCH* ; tlie demand made upon the Serjeant 
at Arms of a copy of tlie warrant under which 
he arrested sir Francis Bunlett; tlie writ 
served upon the SiTJcaut, and the summons 
serve<l u|Kin the SjM'ukcr, and the notice of De- 
claration filed against the Serjeant ; which said 
notices, demand, writ luul summons, are all at 
tlio suit or on behalf of tlie saiil sir Francis Bur- 
dett, and all bear the name of the same solicitor, 
John Ellis ; That the said procccniiugs liavo 
liecn brought against the S|ieaker, and the Ser- 
jeant, on accfmnt of what was done hy them 
respectively in ol>fdieni'e to the Onler of tho 
House ; and for the purpose of bringing into 
ouesti'fTi, liefoix' a court of hw, the legality of 
the proceetlings of the House in ordering' tlio 
conimitiiu-ut of >ir Francis Burdett, and of the 
conduct «»f tlic Speaker, and the Seijeant, in 
(»lietlience til that Order. 

1. ^ our (.'ommittee, not in consequence of 
anvflouht upon the question so intcnikHl to be 
raised, but inr the purfMise of collecting into 
one vii'W such Preccilents of the jiroceeilings 
ol'the House upon cases of Breach of Privilege 
as might afluril light upon this inqxirtant sub- 
j»i t, ha\ (• in the lirst place examincfl the Jour- 
nals, with relation to the practice of the House 
in commitnient 4»f persiins, whether meniliei'S 
or others, lor Bivaclii:s of Privilegi*, hy <dfeii- 
si\t' v.urds ur writint;^ dentg;it<>ry io the honour 
j and churactiT of the House, or of any of its 
iiiiiubt.'is; und tlii'V have found nuuierous in- 
stances, in the history oi' Parliament, so far as 
the Journals extend, of the frt*«|uciit, unifoim, 
and uuinterriqitcil practice of the House of 
Coninioiis to commit to diflerent custiHlies, 
pers<iiis whom tliev have iidjudged guilty of a 
Breach of their Prn iK-gcs li\ s<i oHending. 

The slafciiiem oi' tli<s«* *PriT.<Hleiits, which 
CKtid)lish llif I^iw of Parliament upon this point 
by the usai^c oi Parliament: the utilitv of such 
law, and the necessity uliich cvists for its con* 
tiimance, iu order to maintain the ihgnity and 



I 

1 



15] STATE TRIALS, 32 Chahles II. l660.^Prceef dings againit /?. ThompsoH— [ 

indeitcndencc of the Hoii>c of Commons ; its 
Aiialotry to i\w. acknowliMltrcMl powers of courts 
«>f justice, aiid the reros^ition of such ri^it in 
\iinoas instances, bv Ic^l aiitlioritieri, by judi- 
cial decisions, anil Ihy tiic other branch of the 
Icpslaturc ; as well as the invariable assertion 
and maintenance of it by the House of Com- 
mons, are topics which nia^' he reserved lor a 
f\irthcr Reiiort. And althoujo^li there are some 
instances in which the House has thougfht 
proper to direct prosecutions for such ofTcnocs, 
yet the Connuittee confidently state that the 
more fre<picnt practice of tlie House, at all 
times, has l)cen to vindicate its own Privileges 
by its own authority. 

2. Tlie subject which appears to your Com- 
mittee to pross most urpnently for an immediate 
report, is, The state of the law and the prac- 
tice of the House in cases either of criminal 
prosecution or civil action a^nst any of its 
members, for any thing spokni or done in the 
House of Commons ; or for any proceeding 
against anv of its officers or other persons act- 
ing under its authority. 

The princii»a1 instances to be found under 
this head arose out of those proceedings, which, 
in the time of Charles the Ist, Charles the 2nd, 
and James the 2nd, were instituted by the of- 
ficers of the crown, in derogation of tlie Rights 
and Privileges of the Commons of England. 
Tlioso proceedincfs wei-e resisted, and resented 
by the House of Commons; were condemned 
by the whole legislature, as utterly and di- 
rciilv contrary to the known laws and statutes 
and IVeedom of this i^alm ; and led directly to 
the Declaration of the Bill of Rights, " TImt 
the freedom of speech, and debates or proceed- 
ings in Parliament, ought not to be impeach- 
ed or questioned in any court or place out of 
Parliament;" and your Committee have no 
hesitation in stating, that this article in the Hill 

of Rights extends as clearly to Actions or Tii^ 

dictments brougflit, or prosecutions by indivi- 
duals, as to Informations or other prf)rep<linGfs 

directly instituted by the authority of the 

cro^vn. 
The Law of Parliament on tliis subject, so 

far as relates to words spoken in Parliament, 

was legislatively <lecl:ired in a statute to be 

found in the Parliament R^dl of the 4th of II. , 

8 : By that act, the ricfhts and privilc^ros of I 

free speech in Parliament an» e«itablished, and j 

a special action is ^iven in favour of the pnrty > 

Injured by any action brought ajjainst him for ' 

words spoV'-'n' in ParliainfTit. And. from tliis , 

statute, it appears that Pailiainent at that time, j 

whi'h tlu' case occurrrd which smncd to shew 

the eYiurdit^ncv of lo^rislativf provi>in!i to nriyo 

fuller foi-ci' ;>n<t protrr-tion to its ]»ri\ ilrn^es, made 

it the subject of su'.*h provision. 

In the .5(h of Charles 1, an Infonn^tion w:ls 

filed aifaiuNt sir J. lilliot, IVn/el Hollcfi, esfj. 

and Benjamin Valentine, for thfir speeches and 

conduct in the House of Commons ; Judgment 

was given uirainst them in the King's- Bench, 

thev wen» sentenced to imprisonutent, and 

t fined : hi the Parliament which met in 

3 



1610, the House of Commons, after a Repc 
made of the state of the cases of Mr. Holl 
and the rest of the imprisoned meraibera, in tl 
3ni of C*harles, came to several Resolution 
by which they resolved, That these prucc^ini 
w ere against the law and privik»gp of Parlii 
luent ; and condemned tlie authors and acto 
in them as persons guilty of a breach of ti 
privilege of Pariiament. [ii. Com. Jour. Jul 
6 and 8, 1641. State Trials, vol. 3, p. 310, 
this Collection.]. 

In tlie reign oif Charles 2, these procce<lin( 
were again taken into consideration ; and tl 
House of Commons came to sevc^ral Resoh 
tions. On the 12th of November, 1667, the 
resolved. That the act of Parliament in the 41 
year of the reign of Henrj- 8, above refem 
to, is a declaratory law of the ancient and ru 
cessary riffhti and privik>ges of I^rliamen 
On the 23rd of November, 1667, they resolve 
That the JiHlgment above referred to again 
sir J. Elliot, D. Holies, and B. Vakiitine, e 

3uires, in the King's-Bench, was an iUpg 
udgment ; and on the 7th of l>eccmbcr, 166; 
they desired the concurrence of the I.iord 
Tlic Lords on the I2th of December agiec 
with llic Commons in these Votes. 

Your Committee next refer to the case < 
sir William Winiams ; the detail of which the 
proceed to unert from the Report of a fonin 

Coimnittee of this House. [27 Mar. 1771. ii 
Com. Rep. p. il.] 

« The Case of su- William Williams, again! 

* wlmm after the dissolution of the Parlianiei 
' hekl at Oxford, an Information was hrougl 

* by the Attorney General, in the King'i 

* Bench, in Trin. Term 36 Car. 2, for a niii 
' demeanor, for liaving printed the Infomiatio 

* against Thomas Dangerfield, which he ho 

* onlered to lie printed when he was 8|>eiik0 

* by Order of the House. Judgment passe 

* against him on tliis Information, in the 2ii 

* >ear of king James the 2nd. This procee<l 

* nig the Convention Parliament deemed t 

* great a mievance, and so high an infringi 
» nient of tlic rights of Pariiament, that it ai 

* jwars to your Committee to be the principn 
< if not the sole object of the first ]mrt of tli 

* eighth head of the means use<l by king Jani< 

* t> sub^ cj I the laws and lil)ertif>s of this king 

* d.ini, as set forth in the DtH-lai-atinn of tl 

* tv>o lloiises ; which will ap|K^ar i^idont froi 

* the account gi\en in the Journal, Htli of Fei 

* 108K, of the rornsiiig of that Declanition, tl 

* L-i^liiii head of whi*h was at first concein 
' i!i th'.'s.' woids ; viz. "By causing It 
** foniiaiions to |je brought aucl pniwviitcd I 
** t.'jc Court of Kinir's- Bench, for untters ai 
»• ri.u>:«s founiza!.!;' only in Parliament, and li 
** diMTS other :irbifnny ami ille«r;il rtmrsi-s," 

nth Febniary 165J». '* To this Article tl 
" Lonls (lisngif 4m1 ; and gave tor n n^imMi Hi 
" caiLse they do not fuHv a'.jiri'luuid w Imt 
** meant by it, nor what instancc-H then* ha^ 
" l)ceii of It; which theretore they itcMre ma 
>< Ik; explained, it the Hoube Khali think, tit ' 
'* insist funht;r on it." 



STATE TRI AL9, 32 Charles II. 1 £80 Privilege of Parliament. [ 1 8 



I Febnary 1688. " The House disagrce 
the Lords ia their amendment of leaving 
Jie r^hth Article. But in respect of the 
hf giren by tlie liords in explaining that 
tr ; resolved. That the words do stand 
his manner; By prosecutions in the 
t of Kinsf^s-bench for matters and 
a cof^nizable only in pai-Uament, and bv 
; oihir arbitrary and i1l^;al courses. ' 
hii'h Anieiidmeut, your Committee ob- 
s that the House adapted the Article 
rorredly to the case tliey bad in view ; 
e luliMrniatiun was filed hi king Charles 
KQnd\ lime ; but the prosecution was 
d Ml, and judgment obtained, in the 
il virur of king James.' 
iltbe meaning of tlie House sliould be 
ofeoni k^y idem to the I^rds, the House 
d, <*Thai sir William WUliams be 
I lo the managers of the Conference ;" 
r IVilUaiD W lUianis tlie same day rc- 
the Conterence with the Lonls ; and, 
thtv lordships had adopted the Article 
:iror(l:4 as amended by the Commons." 
iim:spondin^ to this Article of Griev- 
ts tlie arisertion of the Ri^ht of the Sub- 
1 ihe niuth Article of the Declaratory 
f the BUI of Kighta ; viz. *' lliat the 
nn and debates or proceedings in par- 
flt, ou^ht not to be impeachfS or ques- 
J in any court or place out of parlia- 

which may be added, the latter part of 
oh Resolution of the Exceptions to be 
in the Bill of Indemnity, Journal, vol. x. 
J, wherein, after reciting the surrender 
arters, and the violating the rights and 
IBM of elections, ^cc. it proceeds in these 
b: ** And the questioning the proceed- 

i>f parliament, out of parliament, by 
hntioas, Informations or othcnvisc, are 
w for wliich some persons nia}^ lie justly 
sled out of tlie Bill of Indemnity." 
ne tith of June 1689, the House or- 
** That the Records of tlie Court of 
f t-bench, relathig to the proceedings 
ist William Williams, esq. now sir Wil- 

Williams, knight and baronet, late 
ker of this House, be brought into this 
V, by the Custos Brevium of the said 
t, ooThuraday morning next." [x Com. 

I. irr.] 

the 13th of July, <« The Record was 
; and the House thereupon resolved, 
1 the Judgment given in the Court oi' 
^s-bench, in E&nIit term 2 Jac. 2(1, 
■I Williflira Williamsji eso. Speaker of 
isose cf Commons in tne {larlinnieiit 
tt Westminster 25th October dC? (^^ar. 
br HMtter done by Order of tin; House of 
ami as Speaker thereof, is in ilU'- 
it, and aguiiLst the frtvdiiiii of 

I, That a hill be broui^ht in to rc- 

Hud Judgment." [Ibid. p. '215.] 

was twice read, but weiit no f ur- 

•esVion :'^ A similar Bill was hi 

• Vllf. 




the following session ordered to 1)6 brought in ; 
and a third Bill passed the Commons in 1695, 
and was sent up to the House of Lords, but 
did not proceed there to a second reading. 

It app«irs further, tliat on the nh June 1689, 
^*- A Pctiiion of John Tophani, esq. was read ; 
*< setting forth. That he, being a Serjeant at 
*' Arms, and attending the House in the years 
" 1679 and 1600, when several onlers were 
** maile, anti directed to the jietitioner, for the 
*' takin«^ into his custody the several persons of 
^' sir Charles Ncal, 9cc. &c. and others, for 
'* several misdemeanors by them committed in 
" breach of tlie piivilqje of the House ; and 
^' aller that the Commons were dissolved, thtt 
" said persons being resolved to ruin the peti- 
'* tioner, did, in IlUary term, the S3d or 34tli 
" of king Charles, sue the petitioner in the 
'* KingVbench in several actions of trespass, 
*' battery and fak«e imprisonment, for taxing 
^* and detaining them \xa aforesaid : to which 
** actions the petitioner pleaded to the juris- 
** diction of the Court, the said several orders ; 
'* but such his plea \f as over-ruled ; the then 
*' judges ruling the petitioner to plead in cliief, 
^^ and thereupon he pleaded the orders in bar to 
** the actions : notnithstandiug \«hich pica and 
** orders, the tlien judges gave judgment 
*< against him, &c." fx Com. Jouru. p. 164.] 

" U|ion the Report from the Committee oc 
" Privileges and Elections, to whom this peti-' 
" tion of J. Topham was referred, the House 
*' Resolved, That this House doth agree with 
<* the Committee, Tliat the Judgment given by 
" the Court of King's -bench, Easter term 
** 34 Car. 2, Re^s, upon the plea of JohnTop- 
** ham, at the suit of John Jay, to tlie juris- 
** diction of that Court ; and also tlie judg* 
" ments given against the said Mr. Topham, al 
'* tlie suit of Samuel Verdon, &c. are illegal, 
** and a violation of the privilqr^ of parliament, 
** and pernicious to the rights of parliament.^ 
Whereupon it was ordered, ** That sir Francis 
" Pemberton, sir Thomas Jones, and sir Fran- 
*' cis .Wythens, do attend this House on 
" Wednesday morning next." [x. Com. Jour* 
p. 209. 

" In consequence of this order, sir Francis 
*' Pemberton and sir Tliomas Jones, who liad 
" been two of the judges of the Court of 
** King's-bench at the time \ihen the judgment 
" was passed, were? heard in their dcleiu'e ; 
** and afterwards committeil to the Scrieuut at 
** Anns, for their breach «;fthc priviu;gi»s of 
" this Ilousi?, hy «Tuinjyjn,l;^in(.'iit to over- rule 
" the pica t-) tliv jiirisUii'tifm t>f the Court of 
" King's IxMich.*' [\. Coin. Jour. p. 227.] 

Your Coiiiniitlco ttunk it proper to state,^ 
Tliat sir Francis Pemberton i.nd sir Thomas 
Jones, in defending thfuisehes at the biir of 
this Mouse for their conduct in over-rnlintr tha 
p!(;a to thoir jurisdiction in the actions of Jay 
r. Topham, Vc. dirfcndcd the Judgment they 
had givtM), l)v resting upon the iiaturt* of the 
p1u<tdtiig, and ndl b\ lienying thir juri^diftiun 
or nnthority of tliis M(»u«»i' ; ami sir Francis 
Poiiibcrtan expre^ly admitted, that for any 

C 



1!)] STATE TRIALS, 32 Charles II. \6%tS.^Proefeding9again$t R.Tkampaim: [! 

thing transacted in this House, no other Court 
halt any jurisdiction to hear and determine it. 
[Htate Trials.] 

Your Committee in the next place think it 
expedient to state to the House, that there are 
various instances in which persons committed 
by the House of Commons nave been brouj^ht 
up by Habeas Corpus before the jufU|;es and 
courts of common law ; and in these cases, 
upon its appearing by the return to the Habeas 
Cforpns that they were committed under the 
Speaker's warrant, they have been invariably 
remanded. 

3.^ Having statetl these instances of the 
manner in which the Ads and Commitments of 
this House have been brought into judgment in 
«ther courts, and the consequences of such 
proceedings ; your Committee further think it 
pm|>er, and in some degree connected with tliis 
subject, to advert to the course which was adopted 
for stnying proceedings in suits brought against 
members and their servants, while they were 
protected from such suits during the sitting of 
parliament. 

The Roll of Parliament 8 Ed. 2, affords the 
earliest trace which your Committee has found 
upon this subject. It is a writ from the king 
coufiniiatory of the privilege of being free from 
■nits in time of pariiameut, and is in the follow- 
ing words : * Rex mandavit Justiciaries suis ad 

* assisas, iurat : Vc. capiend. assignat : quod 
*- supersedeant Cajitioni corandem ubi comites 

* barones et alii summonati ad Pari' rp<;is sunt 

* partes quamdiu dictum Parliamentum dura- 
« verit.' [4 Co. Inst. 24.] 

There have been various modes of procecil- 
ing to^enforre this privilege. Tn lX^w(«*s 
Journal, pa. 436,31 Eliz. 1.^88—1589, Friday 
SI St of February, your Conmiittre find the 
following entry : *''lTpon a motion made by 
** Mr. Harris, that divers members of this 
** House having writs of Nisi Prius brought 
«< against them to be tried at the assizes in 
** sundry places of this realm to be holden and 
** kept in the circuits of this present vacation, 
" and that writs of Supersedeas might be 
" ai«-arded in those cases in res{>ect of the pri- 
'* vilege of this House due and appertaining to 
*' the members of the same ; it is agreed, that 
** those of this House which shall have occa- 
** sion to reouire such benefit of privilege in 
** that behalf, may repair unto Mr. Speaker, 
" to declare unto him the state of their cases, 
<* and that he, uyon his discretion (if the cases 
•• shall so i-equire) may direct the warrant of 
** this House to the Lord Chancellor of Eng- 
^ land, for the awarding of such writs of Su- 
" persedeas accordingly." 

But the House used' to stay also proceedings 
-by its own authority ; sntiictimes oy standing 
tfi<> Si'rjeunt at arms to deliver the person ar- 
rested out of custody ; and sometimes by letter 
trom tlie S|Mniker to the Ju<lges before whom 
the cn»ise was to be tried. Of this latter mode 
of proceeding, your Committee find many in- 
■taiices previous to tlie "Srd of Charies I. Yonr 
Committee find a decision [Hodges v. Moor. 

a 



Trin. S Car. I.] against the authority of and 
letter, in the court of King's bench, which 
reported in the maig. of Dyer's reports, p. t 
and in I^tch, pp. 48 and 160. And snoit 
afW the refusal by the Court of King's ben 
to notice this letter from the Speaker, the paiH 
meut was dissolved. There are, howevi 
many other instances of this course of prooec 
iiig after the Restoration ; and in the mstan 
oflord Newburgli (23 February 1 669) the Hon 
ordered the proceedings to outlawry to be sta 
during the sessions, and the record of the a 
gents to be vacated and taken off the file, [i 
Com. Jour. p. 1^6]. 

The last instance which your Committee 11 
of such letters having beai written, occurs 
the lord Bulkeley's case in 1691, in which t 
Speaker is directed to write a letter to the prodi 
notary that he do not make out, anu to t 
sheriff of the county of Pembroke that he 
not execute any writ, whereby the lord Bull 
ley's possessions may be disturbed, until B 
Speaker shall have examined and reported 1 
matter to the House, and this House li 
further order thereon, [x. Com. Jour. p. 53' 
By the 19 and 13 W. S. c. 3. this Privilege ¥ 
curtailed ; and further by Stat. 2 and 3 Ann, 
18.-11 Geo. 2. c. 24.— 10 Geo. 3. c. 50. 

liord chief justice l>e Grey says in Crosb 
case, " If a member was arrested before 1 
<« l?and 13 W. 3. the method in Westmina 
" hall was to dischaive him by writ of privik 
** under the great setu, which was in thenati 
'* of a Supersedeas to the proceeding. 1 
'* statute of William has now altered uiis, a 
** there is no necessity to plead tlie privilege 
'* a member of parhament." £3 nib. H 
201.1 

AU these acts merely apply to procei 
ings against Members in respect of tl 
debts and actions as individuals, and i 
in res|>ect of their conduct as nufmbers of pi 
liament ; and tlierefore they do not in any h 
abridge the ancient law and privilege of p 
liament so far as they respect the freedom i 
conduct of members of paniament as such, 
the protection which the House may give 
penious actinir under its authority. 

4 . — I^n the whde, it appears to your Co 
mittee, Tliat the bringing tnese actions ngad 
the Speaker, and the Serjeant, for acts dune 
obedience to the orders of this House, ii 
breach of the privileges of this House. 

And it appears, that in the several instan 
of actions commenced in breach of the pri 
legos of tliis Flouse, the House luis procee 
by commitment, not only against the l>arty, 
against the soUcitor and other persons conven 
in briiigiug such actions ; but your Commit 
I think it right to observe, that tne commitrn 
I of Kuch (larty, solicitor, or other persons, wo 
I not necessarily stop the proceedings in a 
action. 

Tliat as the particular ground of action d 
not necessarily appear upon the writ or u] 
the deolaration, the court orfbre which sudi 
tion is brought cannot stay the suit or | 



STATE TRIALS, 32 Charles II. Iffsa— PWvtfrg'^ of Pitrliamtnt. [CS 



againit the pb^ntifT, till it is iuforiutrd 
ow of legal proo6«diiiff that such ac- 
ogfat for a thing done by order of the 

li aefim e appears to your Committee, 
thoi^i^ the House should think fit to 
a sohcitor or other person nuncemed 
Bcinff these actions; yet it uill still 
at t£al the House shoidd give leave 
aker, and the Seijeant, to appMur to 
tkiiiis and to plead to the same ; ti)r 
i of bnnging under the knowledj^e of 
the authority under which they 
if the House should agree with Uiat 
or CcHnmittee submits to the House, 
would not be proper tlrnt directions 
pven by this Honse, fur defending 
r, and tne Serjeant, against the said 



SECOND REPORT. 



resuming the considera- 
primcipal niaitera reserred in tlieir 
lort, do not thiidi it necessary to 
le vaiious Pkrecedents which are to 
' the exercise of the power oi' Com- 
»y the House of Comuiohs for 
; Privilege and Contempt in gene- 
'mg that to be a power too clear to- 
i qurstioo, and proved, if proof were 
>y Ibe same Preci-dcnts, which they 
ted with a view to the point to 
y have more immediately directed 
doo, and which Precedents are sub- 
icir R^oit. (Appendix A.) 
ies which your Committee nave se- 
KMt directly conneoled with the sub- 
si to them, are those for Connnit- 
Libel, an offence which tends to 
«lar misapprehension and disaffec- 
tters the m«edom of tlie debates 
lugs in parliament, and requires the 
i|it interposition and restraint. The 
nmcdiate uunisliment and example is 
I prevent tne ev'ds necessarily arising 
imnoe, which evil it is obvious would 
efls effectually guarded against by 
lilatoty proceeding's of the ordinary 
aw ; nevertheless upon some occa- 

1 loose of Commons have pro- 
vinst persons committing such of- 
' directing prosecutioiis, ur by ad- 
is Buyesty to direct them, as aiJjRars 
secdents collected in Apitendix (U.) 
le series <d precedents which your 
e And on your Journals, it will munt 
paar that the Hnuse of Cfimuions 
id Lfteh as contempts ; that they 
cHllj ponished tlie authors and pub 

Aem by coininitmcut, wlietiier 
in and publishers were or were ni^t 
if Ike House ; and tliat inis jiower 
■■ciKd at all times, sa far liack as 
fe aflbrd an op|H>rtunuy of tracing 
1^ Committee cannot Ibi bear ob- 
it f^ VmoedniB^ subjoined to their 



Report establish this Law of Parliament, upon 
the ground and evidence of an immemorisl 
usaffe, as strong and satisfactory as would be 
held sufficient in a court of law, tor the estab- 
lishment of any legal right. (Appendix A.) 

Your Committee also bejg leave to observa, 
that the general power ot Commitment was 
solemn^ asserted by the House of Common^ 
in 1676, and in their Resolutions of 1701 ; and 
was also claimed by the House of Commona, 
and admitted by the House of Lords in the 
most exdUcit lenns, in the conference between 
the two Houses, in the Case of Ashby and 
White, in 1704 ; althougli other points aiising 
in that case were strongly controverted between 
the two Houses. (Appemlix C.) 

Your Committee further state, that it hat 
been recognized by legal authority, and by the 
most solemn decisions of the courts of law on 
various occasions, whenever any question u|K»i 
it has been brought before them : 

By eleven of Sie Judges— in the Case of the 
Aylesbury men. 2 Lord Raym. p. 1105. 
3 Wils. p. 205. 

By the Court of King's-Bench— in Mur- 
ray's Case. 1 Wils. p. 299. 1751. 

By the Court of Common Pleas— in the 
Case of Brass Crosby. 3 Wils. p. 203. 1771. 

By the Court of Exchequer— m tlie Case of 
Oliver. 1771. 

And that this power of romniitment by 
either House of Paniament, was further rec<^- . 
iiized by the court of King's Bench in the 
Case of 'Benjamin Flower, 8 Term Ucnorts, p. 
323, who had been committed by tlic 11 ou^ of 
Lords. And your committee have not found 
the authority of a single decision to the con- 
trary in any court whate%'er. (Appendix D.) 

I our Connnittee also beg leave to state, that 
die Judges of the Common Law have consider- 
ed Libels upon th<^ courts or the proct^edings 
in juf iicature as contempts and lia>e frequenUy 

Eunislied the authors and publishers of them 
y summary commitment. This appears from 
various instances stated in tlie Appeiidix (£.) 
which liave occurred both in courts of law and 
equity. 

Amongst the Judges who have concurred in 
those decijiions, u|M)n the power of |»arliaineut 
and of the courts of law and e^iuity to commit 
for such contempts, are to be luand lawyers 
the most distLugtiislied for their zi'alous re- 
gard for thelibeny of tlie subject, and the 
most upright, able and enlighteueil mi-u that 
ever ailomed the seal of justice ; and the 
doctrines hiid down by theui all coincide uith 
the ii|»iiftiou solemnly delivered by L«rd Chief 
Juhtlce De (in>y in < rusby's ume, that the 
}iower of couiimtment is ^* inlK-rfUt in the 
** llousi' of Commons from the vi-r^ natcn^of 
^* its iustitutiun, and tlwt tliey i-uii e ititiiiit 
«( geueially for ali coiiteni|»ts." 3 W iU. |>. i^Q. 
Uufler all these circumstances, Your lom- 
mittoe can liave no hetdtatioii in subinittiutf ilieir 
ilecidH opinion, that the |Hiwer of (xiiuiiiiuiient 
for a liljel upon the House, or uimiu its membcrH, 
tor or ndative to any thing said or done thecciut 



is] STATE TRIALS^ 32 Charles U. leso.'^Proeeedimgt ^gatnii IL Titow pw 



if eflsential to the Freedom ofDebate, to the In- 
dependence of Parliament, to the gecurity of the 
liberty of the Subject, and to .the general pre- 
servatuNi of the $^te. 

. This power iis in truth part of the fundamental 
Law f»f Parliament ; the Law of Parliament is 
.the Law of tiie LAnd ; part of the Lex Terree, 
mentioned in Magna dharta, where it is de- 
clared, that, " no Freeman shall be taken or 
" imprisoned but by lawful judgment of his 
*' Peers, or by the Law of the Land ;" and it 
is as much within the meaning of these words, 
" the Law of the Land," as the uniyersally ac- 
knowledge power of Commitment for con- 
tempt by the Courts of Justice in Westminster- 
hall, wluch courts have inherent in them the 
summary power of punishing such contempts 
by 6ommitmcnt of the offenders, without tne 
intervention of a Jury. 

Your Committee therefore are of opinion. 
That tliis power is founded on the clearest prin- 
dples of expediency and right, proved by im- 
memorial usage, rectiffdized and sanctioned 
by the highest legal aumorities; and analogous 
to the power exercised without dispute by 
courts or Justice ; that it fin^ew up with our 
constitution ; that it is established ana confirmed 
'as clearly and incontroVertibly as any part of 
the Law of the Land, and is one of the most 
hnportant safeguards of the Rights and' Liber- 
ties of the People. 

APPENDIX. 



Appendix (A.) 

Paecedents of Coif MiTMENTS for Wofds and 
Publications, Speeches, &c. reflecting on 
the Proceedings of the House. 

I. — From the beginning of ihe Joumalif to the 

CommonweaUh. 

1559. — ^TaowER. — For contumelious words 
against the Jlouse. — ^To the Serjeant — i Jour. 
59. 

1580. — Hall, a Member. — For publishing a 
book against the authority of the House.— 

. To the Tower, also fined and expelled^ — 
i Jour. 193, 194, 125, 126, 1S2. 

1625. — Montague. — For a great contempt 
against the House for publishing a book 
traducing persons for petitioning the House. 
—To the Serjeant — i Jour. 805, 806. 

1628.— Lewes. — For words spoken against the 
last Parliament— To the Serjeant— i Jour. 
^2. 

3(638. — Aleyn. — For a libel on last Parlia- 
ment. — To the Serjeant — i Jour. 925. 

1640. — Piers. — Archdeacon of Bath^ for abus- 
ing tbe last Parliament.- To the Serjeant— 
ii Jour. 63. 

1640. — Prestok. — Scandnlous words against 
this H:>use.— To the Gatehouse— ii^or. 71. 

N. B.— Tbe King did not leave London till tbe 
10th of January 1641. In tlie year pre* 
ceding iliere are very many cases ofstranEers 
cofjimitted for conremptuoof words spci«en 
against the Parliamentt 






II. — Preeedentt of the like nature, fr 
Restoration to the Revolutioiu 

1660. — Lentuall, a Member. — For w< 
the House againtt tlie preceding Parliai 
To the Serjeant — viii Jour. 84. 

— Drake. — For a pamphlet reflectii 
the Parliament ; and impeached. — ^' 
Serjeant^viii Juur. 183. 185, 186. 

— Crakford. DittOy Ditto, viii Joui 

1661.— Gregory and Withers. — Foj 
phlets reflecting on tbe justice of the 
—To the Tower— viii Jour. 368.- 
were prisoners in Newgate, and wer 
mitted to the Tower, and ordered inl 
custody. 

1662— Greek. Ditto, To the Serjeant 
446. 

1670 — Woodward.— For a breach of P 
against a Member, and speaking co 
tuous words against this House. — 
Serjeant — ix Jour. 147. 

1675. — Howard. — For a scimdalous 
and a breach of the Privilege of the 
— To the Tower— ix Jour. 864. 

1680.— Sir RoREAT Cann, a Membei 
words in the House, reflecting on a Bfl 
brouEbt to the bar, and received a 
mand from the Speaker: — And for 
spoken out of the Houie — commiib 
expelled. — To the Tower — ix Jour. 6^ 

1680. — Yarington and Groob^. — For 
phlet again&t a Member.— To the S 
— ix Jour. 654, 656. 

1685. — CooKE, a Member.— For wordt 
House. — ^To the Tower^ — ix Jour. 760 

ni. — Precedents f SfC. from the Revolw 
the end of King Wdliam. 

1689. — Christopher Smelt. — Spreac 
false and scandalous report of sir Pete 
a Member.— To the Serjeant, 29th J 
Jour. 844. 

1690.— W. Briggs. — Contemptuous wo 
behaviour, and scandalous reflection 
the House and upon Sir Jonathan Jei 
a Member thereof.— To tbe Serjean 
Dec. — X Jour 512. 

1691. — Richard Baldwin. — Printer 
pamphlet entitled, '* Mercurius Reforo 
reflecting on the proceedings of the '. 
— To the Serjeant, 9th and 2l8t ] 
X Jour. 548, 558. 

1693. — William Soader. — Affirming i 
porting that Sir Francis Massam, a M 
was a pensioner. — ^Tu the Serjean 
Mar.— xi Jour. 123. 

1695. — Sir George Meggot.— Havin| 
dalixed the House, in declaring that i 
being duly chosen be had friends enc 
the House to bring him into the He 
To the Serjeant, 27ih Dec. — xi Joui. 

1696. — JoHH Marlrt. — A Member, foi 
in the House.— To tlie Tower, 9rl: 
xi Jour. 581. 

1690.— Francis DuKCOnkE. — Haring • 
ed before two wiiucs>c» that he had 



f5] STATE TRIALS, 32 Chablss IL l6S0.— Privilege of P€rliamm^. [2£ 



kned Bonej to several Members of the 
Boose^ and afterwards denied it before a 
ONDiDittec of the Hoose.— To the Serjeaoty 
5th Jan.-*ai Jour. 651. 

16M.— Joair Rte. — Haying caused a libel, 
fdkcting OD a Member of the House, to be 
snaied and delivered at tbe door.— -To the 
S^eulv 11th Jan. — xi Jour. 656. 

lfi|J--JoBV Hath E9.^For being the occasion 
«f a letter being written, r«ectiog upon 
dK booour of tbe House, and of a Commit* 
iKj— To the Serjeant, S4tk Jan. — xiii Jour. 
Ul. 

im.— TiaMAS CoLEPEPB a.— Reflections up- 
• chf last House of Commons. — ^To New- 
lili; Feb. 7. — miii Jour. 735.— And Attorney 
Gcami ordered to prosecute him for his 



Vff^Pneedentg of the like nature, from 1701 

to 1809. 

inip-Jtfaji TuTcniN, Joun How, Benjamin 
Btoifl. -As Author, Printer, and Publisher 
tf ■ minted paper, entitled, *' Tbe Observa- 
iBi;* reflecting uoon the Proceedings of the 
Hmk.— To tlie Serjeant, 3d Jan. — «iv Jour. 

no. 

0M.— JamesMellot. — False and scandalous 
flflections upon two Members.— To the Ser- 
jtsat, (Kb Mar.— xir Jour. 565. 
-HEawAaD Theobalds. — Scandalous reflec- 
boas apon a Member. — ^To the Serjeant, 
td Mar. — aiT Jour. 557. 
ms^— Samusl Bc7Cklet. — As Printer of a 
Mended MemohiJ printed in the *' Daily 
Coafant," reflecting upon the Resolutions (»f 
lbs House.— To the Serjeant, llth Apr.— 
EviiJoar. 189. 
t715.— £. BcaaiNGTON, J. Morphen.— As 
Pinivmd Publisher of a pamphlet, entitled, 
*7bi Evening Post,** reflecting on His Ma- 
JM and the two Houses of Parliament. — 
To the Serjeant, 1st July — xviii Jour. 195. 
f7f9.r-RjcBAaD Corbet. — Reflecting upon 
the Proc e eding and tlie authority of a Com- 
■ince.— To the Serjeant, 31st Mar. — xxi 
Jam*. 307. 
173S. — William Noble. — Asserting that a 
Member received a pension for his voting in 
Pkriiaincnt.— To the Serjeant, 19th Feb.— 
tail Joor. 945. 
174a — William Coolet, John Meres, John 
flccBES. — As Author, Printer, and Publisher 
•f papers reflecting upon His Majesty's 
Gevemment, and the Proceediugs of both 
of Parliament. Cooley to Newgate, 
Dec. ; Meres and Hashes, To the Ser- 
Sd Deoember^-xxiii Jour. 545, 546, 

• •if. 

lMfel Johns.- -Author of a printed 
containing impudent reflections on 
I P^ncet dings of the House. — ^To the Ser- 
M, IStb Mav— REV Jour. 154. 
^Dsxvjs SBADE.-^ticking up a pnper 
iiflame tbe minds of the people against 
I Hoase.-'To tbe Serjcmot, 9tb of Decem- 
p— nsix Joor. 9r. 




1768— Joseph Juornton. — Giving directions 
for sticking up the above-mentioned paper. 
— To Newgate, 10th Dec. 

1771.— Henry Baldwin, Thomas Wright. 
—Printing the Debates, and misrepresent- 
ing the Speeches of Members. — ^To the Ser- 
jeant, 14th March— xxxiii Jour. 258, 359. 

1774.— H. S, WooDFALL. — For publishing a 
Letter highly reflecting on the character of 
the Speaker. — ^To the Serjeant, 14th Febru- 
ary — xxxiv. Jour. 456. 

1805.— Peter Stuart. — For printing in his 
Paper libellous reflections on the character 
and conduct uf the House. — ^To the Serjeant, 
^Gth April— Ix Jour. 917. 

Appendix (B.) 

Cases since 1697, of Prosecutions at Law 
aeainst Persons for Libels, &c. upon the 
House of Commons or any of its Members; 
and whether by Order ur Address. 

1699. — Edward Stephen. — Libel on the 
House, and on an individual Member.— By 
Order, S7th February — xiii Jour. S30. 
1701. — ^I'uoMAS CoLEPXPER. — A Letter to the 
Freeholders and Freemen of England, as« 
persingthe House. — By Order, 7th February 
— xiii Jour. 735. 
1702. — Mr. Lloyd. — Aspersing the character 
of a Meml)er. — ^By Older, 18tb November 
— xiv Jour. 37. 

1709. — Dyer. — Misrepresenting the Proceed- 
ings of the House.— By Order, 26th Febru- 
ary — xiv Jour. 807, 208. 

1740.— John Meres.— «* The Daily Post."— 
Highly and injuriously reflecting upon an 
act of Government, and the Proceedings 
of both Houses of Parliament.— By Ad^ 
dress, 3d Dec. — xxiii Jour. 546. 

1750 — Author, Printer and Publisher. — Pub- 
lishing paper, entitled, " Constitutional Que* 
ries,'' grossly reflecting on the House. — By 
Address, 2Sd Jan. — xxvi Jour. 9. 

1751. — Authors, Printers and Publishers. — ^The 
case of the Honourable Alexander Murray. 
—Aspersing the Proceedings of the House, 
and tending to create misapprehensions of 
the same in the minds of the people.— By 
Address, 20th Nov. — xxvi Jour. 304. 

1774. — Author, Printers and Pnblishers.— Pub- 
lishing paper called the ** South Briton/' 
reflecting on the House. — By Order, 16tb 
February — xxxiv Jour. 461. 

1788. — Authors, Printers and Publisbers.— 
*' The Morning Herald, Tiie Gazetteer, and 
New Daily Advertiser.'' — Grossly reflecting 
on the House and the Members, and tending 
to prejudice the defence of a person answer- 
ing at the.Bar.— By Address, 8th February— 
xliii Jour. 213. 

1788.-^ Authors, Printers and Publishers.-*- 
** Review of the Principal Charges against 
Warren Hastings,'' &c. — Highly disrespect- 
ful to His Majesty, and the House ; and 
indecent Observations reflecting on the mo- 
tives which indoced the House to prelar the 



/ 



^ vr ATETtlAl.^ i/l(MJkMi.iA XL ;i^ 



M^ ;t/1iWm. :5»i ••-.r ■•••'» — uii .'-wr ifli. 
JI'W — r'-'\tfr %ii«t *ir,: r:Ar— * Tut "* •-rit'' 

K>S V, «n-;-;*— . a* 'rut t^t>:;ciA t' ^ir r*« 

1V4 teceatc^^^ j-.i/. ::>, ^:> 



Ci^ni md Ret '/cynryM </ dK PKn^c^.u r?* 
pAftUAiCbiT. af^ tfat Power of C'.vxn- 




11 R>h. t. Rcc Fwl. vol n. S4t 

£a jTCArt foij^iment, twrz Im Sjisn'rs s* 

bitn eapntelft ry^ntt tcxoprir^ ai*iri pr»«ntz m%Tb:«: ^x- rvccymd. — A C'«*jk Bdi Lrr 

Sv/««% « «iitr.» f«ri«m«iitz « lu»i(« a .^,u-. ••>-'3 -Com. Juoni. roi. i. p. Sft9. 

totiMfiU PWrei <Ji! b Terr*-, a^rroMfit tie- The CoB.ziin» tefi t^ LaHn «• tta tW 

OManez, w^\mpfnz^ ^ dnciM uf !#• f»an 4e par- doiAciiM. bin tbe ComsMDi Hook ka C^Hl 

knttflt, 4c ti0sm\'^. (AT U L//V Crvi]«, wt par and a Court of Record.'* 

antral pLia ban cfcKirte. du R^Sme: qa*U l^^—Cam. Joum. roL 1. p. 545. 

daym, iitifrti:, ie fraochiM: le K/iv lour be- . '■> ^.'^'^^ *^ PreccdcBto br sr £d«^i 
AiffMsneot afloua ^ ottrviia «n yCtin parle- Coke, d b amed, - The Hour of Caa» 
tamL : mooa, alone, hath a power 01' pnaialiaKil; 

«o u^ ^ »^ n^-i . and that judicial "—HaU'.taae 43 li»uu,«ii 

39 Htn. 6. If«t. Pkri. rol. r. p. «39.— Lonr*! CaK 5 EHz cit«i 

Thorp's Ca«r. 1^-^ 1 ^-e ;» ««. craa. 

The Hariri I^ordea Hpiritu«4z and Teroporelx ^^"' •'****^ 4th.-Coni. Jouni. toL ix. p. 854 
not eiit»Yii1yin(p u» emu^^hp or hurt the LiWr- i ^ ^« matter of the appellant juriadictiQn 4 
U-tm and yrtir'i\t^(^*rH of thf\-ni that were c«>me'n ' ^^ House of Lords, the CoianHNw aasot thdi 
for the rrommiine of thin fande to tf 'n present ' "^^^ ^* to punish b^' •— pT-^nnrnT n 1 nmninti 
parierii#^it, but «i(aily nfUrr the imin of (awe tf> ! ^^ >s I^T^y <^' tudatuig ibeir phvil^cs, tfag 
myiiv<itnr jiMtiff, snd to harf^ knowlef(i|;e what , 'm^ui^ aoconling' to the known hws and ciutofl 
th«! lawc; wilt wi-y in tliat liclwkf, ofiened and '• ^ i^iriiainent and the right of their pnvilega 
flef:lan;d tothcjuHtiri'H the jinrriiifMez, and axed ' ^'^cl'uvd ^y <^e kiug« m%al preiectaiaiinji 
of Uieni whHlHT till: wrid Thtnnas oii^t to be [ fcMmer Pkriiamenu and by huuself ui tUi;'* 
delivemi fnuii yrvtim^ by force and vertue of *^. ." ^^ neither the Great Charter, tiM 
thir pn¥v\t'^* of iMirii'nMiit or nofi. To the , ^^^^ of Kight, nor any other laws, do tab 
whirh r|iif-Htiori thi; rliff« yt^^n, in the nam^ ' ^^y ^^ ^^ and custom of Parliament, or ti 
nf all till* juHtiff/, aftfT maddi* oominufiicatioii ^^^ ilomr oi Parliauient." 

and maturi- d.^lt«.n.ti.n, hadibr ani.nijr theein, 1701.-V0I. »ii. p. 7C7.-Kentidi F^stitMo. 
auimwin-d and Hiiid» that thfy miifht n<it to . f •*" »«mw. * «■•••«. 

aiiniiW4<n; to tliat ipii-Hf inn, fur it hath not be Kawdved, Thai it is the opinion of tlyi 
iiMfl afon* lyiuc iliat tin- just irvx slioubl in euy | coiuuiittfe, thai to assert the House of Con* 
w^wdi'ii'nnini* thi*|irivilrtf;^M>fthiNlrighe<iiirt nMfB** ha>e no power of commitmeut, hut a( 
or |iarli*iiiriit. tlieir own meniben, tends to the suliveniioii d 

^ II... a Tu - • -•. I i« ji • ^1 •• the constitutiouofthc House of Comniuns. 

4 Hra. 8. }^'^riKitw^ lUAl in Uie pariia- k«ioIto.I, That it is the opinion of itt 
mi^it ofllre. -Htroude»s Case. coiumitlee. That In print and puSLih any boofti 

or libeb redecting upon Ike procMdiuga ol Ih 



i« Ilia aoi c«iiie*nytig Kiokard fitroude 



f9] STATE TRIALS, 32 Charles II. iGSO.^FrMlege of Partkimeni. [39 

** barons of the Exchequer, are assistant? totha- 
" Lords to inibmi tlieni of the ctnnmoii law, 
" and thereunto are called severally by virit : ' 
*' neither doth it belong- to theni (as^hath been 
" said) to ^udse of any law, custom, or pri- 
" vilecfe of paflianient : An<i to say the truth, 
** the laws, customs, liberties, and 'privilegies of 
*< parliament, arc better to be learned out of tiie 
** rolls of parliament, and other records, and by 
** precedents and continued experience, than 
'* can be expressed by any one man's pen/' 



Htaie of ComnMm, or any member thereof, 
fersr rdatinfr to his serrioe therein, is a hiffh 
fiMoB ol' the ri^ts and privileges of the 
H«K flf Commooii. 

Ashby and White. 

Cflnftreneps between the two Houses. 

1W Oommoiis at the second conference with 
dtt Lwdi ne amert their Resolution of 1701 : 

** For it b the ancient and undoubted rif^ht of 
** dtt Hsmeof Commons to commit for breach 
* tfpiii^ve ; and the instances of their commit- 
** B^ fVMNK (not membern of the House) for 
**MMh of pririlege, and that to any her 
**B|pH^'s prisons, are ancient, so many, and 
**■ v« Blown to yom lordships, that the 
think it needless to produce them." 
. vol. xyii. p. 709. 

Ijords Joum. vol. ^i^P- 714. 

Ik Lords in answer say, — " The Lonls 

'^Mffcr disputed the Commons power of com- 

*^ ittsi^ for breach of privilege, as well per- 

an; not of tlie House of Commons 

who an.%" iSec. 




Appendix (D.) 

KKOttmoN of the Law and Privilc^ of 
IWianieni, and of tlie Power of the 
HoiKe of Commons to commit for Con- 
ttvpt^ by Leind Authorities, and by the 
lu^..: — f^f i^Qoxt% of Justice. 



Coke, 4 Inst. fo. 15. 

Lord Coke observes, upon the chum of the 
hn6i^ ID 11 of Rich. 9. sanctioned by the 
ks^ (as naled in the first paragraph of Appen- 
da C.) oftler the head of ' Lex et Consuetudo 
"^ "i mrsi i;' as followeth — ^*And as every 
:sf justice hath kws and customs tor its 
lioQ, some by the oommon law, some by 
** ihe cifil bw and common law, some by po- 
"caiar bws and customs, &c^ so the*hi}j>;U 
of Parliament ^suis proprijs le^ibus et 
subsistit— 'It is lex et oonsue- 



I 



hriianenti, that all weip^ty nuitters 
^ m any Parfiament, moved concerning the 
•IVus of the realm, or CommooN in Pnr- 
* iimmt assembled, ouf^it to he determined, 
"adpi^ipd, and diseussed by the «oune of 
** ftrfiMncnt, and not by civO law, nor yet by 
** the oommon laws of this realm used in infe- 
" liar eourta ; whieh was so declared to be— 
"a rti do m legem et consuetudinem Parha- 
** mmti— oonosniing the Peers of this realm, 
** by tkr VtJBgt «m1 all the Lords sphritual and 
** iHipiral : And the like, pari ratione^ is for 
" ftt Commons for any thiufr moved or done 
'■^ House of Commons.*' 

Coke, 4 Inst. fo. 50. 

And OB another occasion, in treatii^ of the 
GHStoms, libertiea and privilei(es of the 
nn 9i FaHiiunait, whidi he saith, «« hath 
Jjbmmuch deaired, and are the very heart- 
'^MagBoT tlie oommonweahh :" Lord Coke 
■yi^-^All the jnstioes of England and 



26 Car. S.— 1674.— State Trials, Soame's 

Case. 

Lord Chief Justice North said, — *< I can see 
'* no other way to avoid consequences deroga- 
** tory to the honour of tlie parliament, but to 
*< reject the action ; and all others that shall 
'^ relate either to the (irooeedinffs or privilege' 
*' of parliament, as our pretfecessors have 
" done." 

^' For if we should admit general remedies in 
<^ matters relating to the parliament, we must 
*' set bounds how far they Shall go, which is a 
" dangerous province ; for if we eft, privilege 
** of parliament will be invaded, which we ought 
'* not in any way to endamage*." 

1675.— State Tria1s,^Earl of Shaftesbury's 

Case.* 

In the caso of the earl of Shaftesbury, who 
was committed liy the Housi; of L(Mrds, 
** for high contempts committed against the 
'* House," on being brought up to the King's- 
liench on the return of an Habeas Corpus, 
the court unanini«)UHly determined against en- 
tertaining tlie case; wlien Raiasford, Chiefs 
Justice, said, '^ This court has no iurisdiction 
*' of the cause, and therefore tlie form of the 
'* retum is not considerable. We onglit not to 
*' extend our jurisdiction beyond its limits, and 
*' the actions of our ancestors wiii not warrant 
*' such an attempt. 

'^ Hie iM)usequenee would be very mischiev- 
'* ous, if this court should deliver a member of 
*♦ the House of Peers and ("oramons who an? 
** committed, for tlierehy the business of par 
** liament may be retarJed ; for it may be thp 
** commitment was for evil behaviour,* or inde 
** cent reflections on other membo^ to the dis< 
" turbanre of the affairs of parliament. 

" The commitment in this case is not for safe 
*' custody ; but he is in execution of the judg- 
*< meat given by the Lonls for contempt ; and 
** tlierefore, if he should lie bailed, he would 
" be delivered out of execution ; for a contempt 
^^ infuciecuridB there is no otlier judgment or 
** pxivntion. 

" Tliis court has no jurisdiction, and tlicre- 
** fore he ought to be reniandeil. I deliver no 
*' opinioii whether it would be otherv^ise in case 
" of a prerogative." 

1751, Feb. 7th.— 1 Wilson, p. 200.-«Marray's 

Case. 

Wlien he was brought up to the King's- 
* See vol. 6, p. 1270 of this Collectioo. 



"- recsn of Qts 








^ To t^ I aisfvpr. tbax a kis hMa detpr- 



vTccfrfTJoc -^-u r;r 






- CHC 



^ A 



!n %y 3c Hii)«k» CorcGfw tee cvort .-v- 

bun : jkCii 30 r::?e bx; b«ea ci^ 

- cnnrx la tis jnmrriar : tai« i.r^iT'. •l^uuhm 

-baiL- 
I>£nniiwiL. Jusnof. — ■- TLs •.■*j«;-:': fc» &? 

•- *h« Hiii«ntf T'lrvm*. inc V&yv*^ wine the 

- ci''rxautxni?s£ wts : War iii-w 3 aprenr* w ^t? 

- «f C*iiiiiiii]ai« : «tut ■.;»*?•«*• »irT^*.!ie;£i» •/£' ■*!- 

- W«! \.rL=ntiC Hlif|£i! «IC z : i>»r 1 XUrSC 0-4u LS.S 

- cwixr: nfcmr ib the Hoosp or C'Ms Ji<}i» ^rt.i 

- <noapii!;33£ruiBictii^m. I £TT«mTi*h»«,r:i:«;ri 

- «> iriiiiieiiiT. thwaiBit 1 think :t a cieiu cube. 
"* shI rafBRS BO tune Ar cmskfriraQon. " 

»•' m part otf the Iw nf ihe hod : in^i there 
«» wmU be aa cad olf aA bw. if die H rase ot 
«« ConDBnos iwJJ aoC eommit lw a confieoipc. 
■* AD cimrti «f reeonl ievoi the Eq««st: cuy 
•* CA^qi* fiir a cvntempc ; iml lori H'liL 
'* thon^ he JUKend with the odier jmJ^««. y*si 
"ks Huuse anchc cumiwc turicua- 




«t A 



SI] STATE TRULS. S«Chul£s1I. UiO.-^PfwcudmgwtgsuuilLTUMtft&m: [n 

hT a Hdhefti C«cpK. aad the com * Lotd Navw. «ho ns CRUBined 10 the Temr 
!>> ^Hcharse him. Mr. bir ondEr'ti^T tbcf Hook, nader the Spc aiia^ 
L - It affean cpM the "*" 
[ibek» C'crrKS. thai Mr. 
T tf aic::2«!c«i u> New^e Vr the 
cf C<«=i=33f». ^jr aa hf^ im dan- ar^imL a^i. bj 
ccesnciK «C tbe pcirui^npf •:< i^u tive Oxrt. he 

s»BCv iB»Geii«Gaz taebar. The LcHCtBClfJi 

the «piBA «c' ibe Cost. 
'- p.iwcr.Ttr. «t CI 
-* D :be HtiOHe ^ C- 

*- o(' ;he Sav 'f the uad. 

~ Kr ot e»!«Ouce. die v 
" Dk&yiics. 

- j^rcVeii. thai 
*' ^ ivaumpci.. Jl2 

t!aeC:«rt 

H<Qse. 

•■" Tkf Stu. "f' Janaes X. capL 15. 

" po>re» Ufci: ii>*yjiftTi? paver b» 
•• ;iiese wvfti* ~ 
•■ .%tft or aay 

" 1-^ be I^fnrazw br cvawue m 
" di^t«il awe inj'vitrsiivt which 

- oaakff «>r pc«?oirv to Qe 
" M aJN^cesLii :' «> tSais r. si dmhc ct wr ihfll ihi 
-' bfz^:«&tcsre have r^xv^Tuzcii :aa» f t p m u ef Af 
*- H*Mse oc ComiSi'ci. I2 the case ef dM 
-* Vvi^fsbarT ram. the o?<uBwi ^frn in e d , Lni 

- i'Wt' Jisitxe H«ilc -var^Mii. anrf iSie H«aMd 

* Ldrb arfciwwMsr^'. cue the H«Mr d 
-* C4KM3MK had pMwvr v» 

- tRB^ ttr bnnch gr 
*- ieuiu» coey jB}£tt h«i«^ pi 
•* aay cn.Tie. H b«*ii the Hi 
'• 1:*;-*^:*; isy iIiiD«|C •»» ■")e a 

- :».r:'Ti.t:i>ii. loit a»"ir i.i)aLaiit!ueiis i 
•• ;;i»:cce la «.Y^**jz:i>n :- vni »> O 
-* 'ijichurisr? 'IT inid A Dvrson thu is m 
" t»Mi 3v die iiir?:rM«fnt -k* law icher Coart.' 

Vn: !itf cjnotuiieiL 2a juii^mein a thw 

■' I ani lertmi;)! sics.'M that df bird Hal 

-* Sfiwefar' w*:i-^ :.j jiiv>^ <ieteniiJiutd x. the lisn 
•- >Liy»?»- w'cii i:i-.;; Sitsi reiaannVtl. la tb 

• cise •» Mr M'ir-iy, !*e jvivv^ o««U bo 
oJaofr::iii:£ ue uimaniipc hv a aai 

- wae Knew! so ri-.'wvf. '^^ seneence 'it a ^go- 

- per 'K^san ; iJ :*bf iiitj^n i;;i?«ed. that b 
~ must be r«ii:aai(K*i. be^noiw be 
■■ Bur?!*! *)¥ A CoiiTt larju; 





n 



ffi 
u 
u 

It 




a the fiee of the Hook. JL» lur the * htsxxx 

DO nutxe <Mf it. 



ailio 



138. 
177 U 



Cpqhow 




eA|. the 

hetaaAer in this CoQecciin. 

tfaac aiitice if the 

vtJaaBfm tfani Cotlecnim. h. 



t 



I 



Vent. If. WIS 1 C«iiuiuirsieiit -ji 
jou thervpife -<: was le^.-ewam it diat 
scue the <vitift:a«.*v. ver lur^ Cuiiftieti in 
HoiHfu Curuiai Caae% u 3. ir;sS« a this Col- 
leetwu. 



53} STATE TRIALS 39 Charles II. iGSC-^Privikge of Purliamad. {Sl 



" UBce of tlie acts of the Houses of Parlia- 
" BcnCy hecause they belong ud aU*td ejcaNiCn. 
** I hive the most perfect satisfaction in my 
** ova mind in thai determination. Sir Mar- 
«* lia Wfwhl, who feh a generous and distin- 
** ggyieawarmth for the liberty of the sub- 
*<ject; Mr. Justice Dcnison, who was so free 
** fitm conaedJons and ambitiou of etery kind ; 
* ad Ur. Jostioe Foster, who may be truly 
■* cdkd the Alagna Charta of liberty, of per- 
'MMai weO as fortune; all these revered 
'■■ifBi concurred in this point. lamthere- 
•* ma dsttiy and with full satislaction of opi- 
thit the Lord Mayor must be rc- 



u 



OobH Just — *' I entirely concur in opinion 
"wik my Lord Chief Justice, that this Court 
" Ml no oognizance of contempt or breach of 
" privilege ot' the House of Commons ; they 
** m the only judges of their own privileges ; 
" ad diat they may be properly called ju&es, 
"ifpamia 4 Inst. 47, where my lord Coke 
** mjgg an alien cannot be elected of the par- 
** fioMBL because such a person can hold nu 
"ifaee Off judicature. Much stress has been 
■^ludi^oo aa objection, that the Warrant of 
u tko fioMlrMi is not conformable to the order 



■'flf the Hoinae; and yet no such thing ap- 
*iHn 19011 the return, as has been pretended. 
"ihe Older says, that the Lord Mayor sliall 

* be tslDOi into the custody of the scrjeant or 

* \uM deputy ; it does not say, by the serjeaut 
^ ff his depnty . This Court cannot know the 

* utaae and pofwer of the proce^ings of the 
' Hoose of Cfommons : it is founded on a dif- 

* ftrnt law ; the ' lex et consuetudo parlia- 
' * iBcati,* is known to uarliaroent men only. 
»TicivyHniard'aCase, Dier, 59, 60. When 
** wnai of priTilege come incidentally betbru 
^ the Govt, It is obm^ to determine them, to 
" pRffCBt a Allure injustice. It is ixwi this 
" esnrC did, in Uie instance alluded to by the 
' eooBsel at the bar, [Wilkes's Case, 9 WiU. 

* 151.] determine upon the privilege of parlia- 
''aaitin the case of a Liljel ; but then that 
'privilege was promulged and known; it 

exirtea in recoru and law books, and was al- 
lowed hy parliament itself. But even in that 
eue, we now know that we were mistaken ; 
for the House of Commons have simie deter- 
■ined, that urivilt^ does not extend to mat- 
tm of libel. Tte cases produced respect- 
iag Ae lligh Commission Cuurt, &c. are 
■ot to the present purpose, because those 
' aoarli had not a legal authority, llie reso- 
' klioB of the House of Commons is an adju- 
' Aniion, and every court must judge of its 
" nrn oontempts." 
Bbcksloiie, Justice. — " I concur in opinion, 

* Att we caimot discharge the Lord Mayor. 
' He present case is of great importance, bc- 
« «n.^ the-liberty of the subject is materially 

Tm Hoose of Commons is a 
e court, and they are judges of their 
*«WB prinlegcs and contempts, more espe- 

* cidly with respect to their own members. — 
■ Here is a mmber couuoitted in cxevation 

vou VIXI, 



(( 
i» 
u 

(C 
(C 
C( 
(C 

u 



by the judgment of his own house. AH 
courts, by which I mean to include the two 
Houses of parliament and the courts of West- 
minster-Hall, can have no control in matters 
of contempt. * The sole adjudication of con* 
tempts, and the punishment thereof, in any 
mmmer, belongs exclusively, and without 
intedering, to each respective court. In- 
finite contusion and disorder woidd t>ilow, if 
courts could by writ of Habeas Corpus exa- 
mine and determine the contempts ot other8.t 



* Here is a laxity of expression which might 
not have been ex'pected from the learned au« 
thor of tlie * Commentaries.* llie meaning 
seems to be, tiiat the two Houses of Par- 
liament and the courts of Westminster- hall, 
are not subject to control in matters of con- 
tempt, but that other courts arc subject to 
control ill such matters. 8ee Clarke's case, 
Tremaiiie's Pleas of the Crown, 442. 2 Le- 
vinz. 200. 1 Vent. 302. 327. 3 Keb. 704. 799. 
an. Dr. Bentlcv's case 8 Motl. U8* 
Fortescue 202. 2 Lord Ra}iii. 133 1. Strange 
567. 2 Kydon Corporations 70. In Murray's 
case Mr. Justice Foster says, that, '^ all courts 
of Record, even the lowest," [as the Court 
of Piepoudre we may suppose] ** have p<nvcr to 
imprison lor contempts.^' And as tu contempts 
* in facie curiar,' which obstruct the proceciliiigs 
of the court, it seems that they nmst of neces- 
sity liave power to remove ihe cb^^truction ; to 
abate the nuisance, and so is Moor 247. * Si 
*■ uu dit al Judge, Magistrate, uu auter officer 
' jNiroles que lu}' disable delaire son office ou 
' fiiitautor contempt, il |ientluy imprison." So 
too Dean's case, Cnike, KHz. Gl\9. '* A man 
may be imprisoned for a contempt done in 
court but not for a contempt out of court." 

So, too, is Sparkes, and otiiers, r Martin, 1 
Vent. 1. " The Court of Admiralty may 
punish one tliat resists the pn)ccss of their 
court, and may fine and im|)risou for a con- 
tempt to their court acted in the face of it." 

So, too. sir George Newman says, (Proceed* 
ings and Debates of the House of Commons in 
1621, p. 109.) ** The Judges have oft-times 
cause to commit for contempt in the Court." 

If there he any principles of law whereby tha 
sufficiency of a commitment for contempt may 
be judged ot* in the case of one court, it is not 
very apparent why the same principles sboidd 
not be applied to the judging of the suf- 
ficiency of commitments for contempts by 
any other court. That courts of Westmin- 
sU^r-hall will take conusance of each others 
commitments for contempts, see the aign* 
ment of Chief Justice Vaughan in Bushdl'a 
case in this Collection, vol. (>, p. 999, and the 
cases of Astwick, Apslcy, and Mihon, cited in 
that Case, pp. i()04, 1022. 

t Loi*d Mansfield, in the case of Hassells 
and another against Simpson (9.H Doiigl. Rep. 
in note 2d edit.), 8|)eaking of 3Ir. Justice Black- 
stone, warned nis hearers ngainst impUcit re- 
liance on great names. It would ha^e been 
more sat^mctory if Mr. Justice BlacJuitonc 

D 



is] STATE TRIALS, 32 Charles II. \6SO.^Proceeding8agahisi R.1%ompson: [: 



'* Thw power to commit results from the first 
'•« principles of justice ; for if they have power 
** to decide, they ought to hare power to pu- 

'Bad specified some particulars of the * infinite 

* contusion arM disorder* which, he hiys it 
down * woitWft)Hoif, if courts could hy writ of 
*" Habeas Corpus examine and determine the 

* contelmpts of others;' and had also mven 
some proof thai this * infinite confusion and dis- 
order must follow, to«;ther i«ith some account 
of the way in which it would follow. For 
there appears not to he any absurdity in sup- 
posing that the examinability of conimitnionts 
for contempts, might tend to render those who 
'should order such commitments more circum- 
gpect and cautions in the exercise of that power 
tnan othervi'ise they might be ; that it would 
'tend to render their respective courses of pro- 
ceedings les3 capricious, more consistent, and 
more uniform, tlian they othcr\rise might be ; 
that in consequence or those tendencies it 
might probably by desp'ecs produce an iiitcUi- 
gmle detinite practical code, respecting con- 
tempts and the punishments for toeiii ; that if . 
these consequences should ensue, < confusion and 
disorder' would be prcrentcd rather than pro- . 
moted ; and that, it from the operation of com- ' 
petitions for pre-eminence, or erroneous no- 1 
tions of dignity, or of any other cause, ' con- ' 

* funon and disorder' should in fact arise, such ' 
' confusion and disorder' probably would not ! 
be Infinite, but might be speedily, easily and I 
completely suppressed by a legislative cfcfmi- 
tion of at least the limits of contempts, and of 
the punishments applicable to them. Predic- 
tions of * confusion, disonler,* and other mischief 
to ensue from intcrmption of tlie exercise of 
irregular powers, have not always been verified. 
Wlwn tlie powers of issuing general warrants 
and warrants for seizure or papers, which had 
been sanctionctl by numerous precedents, were 
ouestioned (See the cases in this CfilliKMion of 
Leach v. Money, and others, a. d. 1765, and of 
£ntick V. Carrlnston, and others, in the same 
yea#), many such predictions were made, but 
since the exercise of those |K)wcrs has Ihh'U an- 
nulled, 1 have nut met with any complaint (except 
indeed one wliirh occurs in sir J(»hu Hawkins's 
life of Dr. Johnson, but which is tix) frivolous 
to deseiTC noticv ; it relates to the detention 
of artizaos who attempt to mii^ifntte) that this 
annulment has pnxliK'cd a single bad conse- 
quence. In like manner while the j'.ul^es 
claimed the rf 1:^1 it of droiding two (pK>stiuus of 
fiict (f«)r such thc*>' are), viz. tlnisc of ' inten- 
tion' and of * tcnilmcy* in criminal prostra- 
tions for HIkjIs, wliicli claim was buppDitod by 
liie pn'cedi-nts ut' Clarke's case, before l<*rd 
liaymond, <»f Frani'klJTi's casi? licfurc the same 
judlfu (in tliis Collecliou, a. o. 17151.) and of 

' numerous other cases, it t^ns renenteiHy siHtcd 

' liymagistrates of tranNoei:dant talents, learning, 

' experience and authority (such, tor instances, 

av lord MansfWld, lord llimloWt'lord Kenyon, 

and Mr. Justice BulIer,).that'frtiiui(cdLHonler 

iu>d ronfusiun wouM mf^/ifjvau3B had the 



** nish. No other court shall scan the jud 
" ment of a superior court, or the princi) 
^* 0cat of justice. As I said before, it woi 

richt to determine in such prosecutions a 
omer matters, than the mere tact of publicati< 
and the application of tlic inuucRdoes. T 
declaratory statute 3^ Geo. .S, c. CO, has fu] 
eslabliiSheu the right of juries in such cases 

* give a general verdict of Guilty or Not Guil 

* upon the whole matter put to issue on the i 

* dictment or inibnnation.' This statute ori| 

nated in the House of Commons, where 1 

motion for the UU was. made by l^Ir. Fox ■ 

seconded by Mr. Krskine. Most undoubtei 

the success of the bill is in a very high degi 

to be attributed to the inflexible constancy i 

unremitted zeal, with which the latter of th 

two ffreat men had exerteil the \'ast powers 

his eloquence in maintenance of those rights 

juries, which the statute asserts. And a m 

striking illustration it is of the fallibtlitvof tv 

predictions, as that of Mr. Justice BladuUme 

Crosby's case, that whereas, previously to i 

passing- of the act of 3'i Geo. 3, c. 60, disagn 

ments and altercations between the court and 1 

counsel, and the jury, took place in a great pi 

portion of the trials which w ere had on cm 

nal prosecutions for UUpIj ; and notwithstai 

ing It had been declared as we have seen 

magistrates of the CTeatest learning, that I 

establishment of sucn a system would prodi 

infinite confusion and disorder ; nevertheless 

it is, that since the indisputable (*stablishiBi 

of this system, no confusion whatever has < 

curred, the functions of judges and juries hi 

been eicecuted M'ithin their respective limi 

without any competition for jurisdiction ; to 

advancement of justice, and to the dimity 

its ailministration. The change which I 

been operated by the statute rannot be m 

perspicuously stat<?d, nor can its benefw 

effects be more hnppilv illustratetl than in 

following passage, whicti I extract from a n 

on the * subject of the trial of the dean of 

* .4saph' in the * SpcechcH of the honoun 

* Thomas Krskine' (now loni Erskine), &c. ^ 
l,p. 332. 

" The venoraWe ami learned Chief Jus 

Elord Mansfield] nndoul)t(>dly cstablislied 
[is argument, that the doctrine so sixm af 
wards condemncil by the unanimous sense 
the Legislature when it jkasscd the I/ihel i 
did not originate with himself; and thai 
only pronounced the law as he found it, esl 
I lisheti by a train of nio<l<Tn decisions. ] 
I supportcti us we now are.by this jndgmen 
I Parliament, we nuisl vontm*e humbly to dj 
I from so truly givat an authority. ^Tlie L 
: Bill does not cnnfrr upon the Jury any jii 
; diction over thi^ luw, inconsistent with 
general principle of the ootuiitutiuu : Imt i 
bidering that tlvc finest ion of libel or no lib 



frequently a questinn of fact rather than of I 
andf in many cases (»f fiu^ and law almoat ii 
pfffably MeiMled togtsther ; it directs the Ju 
as in other umcs, to deli?er hit opinioii to 



57} STATE TRIALS, Q2 Charles II. l6S0.^Prhilege of Parliament. [38 



*- QOOMon the otiiKMt oonfunon, if every court I 
*' «f this Hall sbouM have power to examine 
" the eoBimkinents uf the other courts ot' the 
** HaB for oonterapts ; so that the jud^neiit 
** tad cmnmitinent uf each respective court as 
** to contempts, must be final and without con- 
^tnH. It is a confidence that may, with per- 
■^ftd SM&ty and security, be rejiosetl in tlie 
■< JQ%a aiMl the Houses of Parliament* The 

Jaiy upon the whole matter, inchuling' of 
eoone oe question of libel or no libel, leaving 
Aem at the same time to found their verdicts 
vmi such whole matter, so brought bc-fore 
nen m ia all other rriminai cases. The betit 
to the apprehensions of the great and 
Chief Justice, regarding tliis course of 
pneeediDe, as then contended tor by Mr. Er- 
Aine, ana now established by the Libel Art, is 
Ibe experience if seFenteen years since that a(!t 



" legislature since the revolution (see 9 ftnd 10 • 
*' W. 3, c. 15,) have created many new con- 
*' teiiiiits. The ol)jectiuns which are brought, • 
'* of aousivc consct|ueut'ts, prove too much, be- 
** cause they- are applicable to all coui-ts of 
*' dernier resort : * et ab abusu ad usum non 
** ' valcnt consequoiitia,* is a maxim of law as 
<* well as of logic. General convenience must 
'* always outweigh partial inconvenience ; even 

of divers mischiefs b«>tli of slate and common- 
wealth." 




" Before the statute it was not difficult for 
fc MoA abandoned and profligate libeller, 
frills eren of the most mali^ant slander upon 
prrrale men^ to connect his cause with tlie 
gnat privileges of the Jury, to protect iniio- 
i. Upon the Judge directing the Jury, 
" to the ukl system, to tincTa verdict uf 



^aky npon the fact of publication ; shutting 
iitf altogether from their consideration the 
fnlity of the matter published, ingenious 
eooBiel used to seize that occasion to shelter a 
goihr indiridnal under the mask of supporting 
great public right ; and Juries, to show that 
any were aot implicitly bound to fmd verdicts 
tf Gnitv upon auch evidence alone, were too 
wnoeKfully incited to find improper verdicts of 
■e^iaaal : bat anoe the paasmg of the Libel 
iAt whea the whole matter has been brought 
vwkr fiicir eoosideration ; when the quality of 
the matter published has been exposed when 
criouBai, add defended when just or iimoccnt, 
paries hare listened to the .nid|^ with atteu- 
tioD and rev e rence, without being bound in 
Aeir consciences (except in matters of abstract 
hw), to fellow his opiniou, and instead of that 
aaeeitainty anticipated by lord Mansfield, the 
admioistnitiim of justice has been in general 
■ait . satisfactory, anil the public uutburitv 
been vindicated against unjust attacks, with 
■oeh gineater security and more supported by 
pdific opinion, than when Juries were instni- 
K9lB in the hands of the fixed magistrates ; 
whibt at the same time public liberty has beeu 
Mnred by leaving the whole matter in all pub- 
iefibek to thejudgment and consideration of 
[he people. This reforraeil state of the law, as 
iti|^anb the liberty of tlie press, is noiv so 
Mivmany acknowledged, . tnat the highest 
aipiti atiB have deelared in the House of 
Lonh, that no new laws are necessary either to 
Mpport the state, or protect the p •»ple." 

ar Eilward Coke (Proceedings and Debates 
tf the Honae of Commons, in 1620 and IG^I, 
ViL «, p. 109) predicted that <« if the mittinius 
iftha riny'Cdimcil most contain the cause of 
"■ "^ ""Jt .^wnld hinder the finding out 



* It seems generally to happen, that persons, 
who either {>oskcsk or lay claim tu power of any . 
kind, arc strongly diKposcHl to be of opinion 
that tlicy may be safely entrusted with such 
po^ er. l^us in our own liistorr, to omit the 
various instances of claims on tbe part of the 
crown to exorbitant power, and to confine 
oursclv(^ to a few judicial cases, it is not un^ 
reasonable to believe that privy-counsellors of 
old thought they might be safely intnisted with 
the vast power which they so mischievously 
and oppressively assumed in the ancient * Court 
of Uequestx ;* that the council in James the. 
first's time thought they might be satcly in- . 
trusted with the power to suunuon bciure theiil 
membcis of the Ilouse o^' Commons, to com- 
mand them to burn the notes, arguments and 
collections which they had made tor preparing 
themselves to a conference with tlie Lords upon 
a most momentous constitutional question, 
and aAerwards to imprison and otherviise to 

Imnisli them fur no other cause but that they 
lad been assigned by the House of Commons 
tu be agents in such conference (see Hargrave's 
Preface to lord Hale's Treatise on the Jurisf fic- 
tion of tlie Lords House or parliament, p. ix. 
Note.) ;- that lord Bacon thought he might safely 
be intrustetl with the power by arbitrary in- 
junctions to protect debtors Yrom pa^^'ment of 
their just debt*; (see Proceedings and IJebates of 
the House of Commons in lO'JOand lo<21, &c. 
Oxford 1766 vol. I. p. 157 et seq.) ; that arch- 
bishop Lautl and his coailjutors thought they 
might safely be iutnisted with the arbitrary 
power whicn they so cruelly exercised in the 
Courts of Star Chamber and High Commis- 
sion ; that Chief Justice Kelyng and other 
judges thought they might be safely in-> 
trusted with the ariiitrary power of fining 
H.w\ imprisoning jurors (as to which see the 
<^ases of Penn and 1^1 ead, and of Bushcll, 
ai/f, vol. 6, p. 951, 999, and the notes to those 
cases :) and that Jefferies, Crew, Cartwright« 
W.right, HerlxTt, and Jenner, thouglit tliey 
m *glit be safely intrusted with the power wliicu 
as ' Conmiisionei-s of Ecclesiastical AfiiBdrs'they 
employed for the purpose of subverting the 
protcstant religion. It is to be regretted, that 
the learniMl judge did not adduce any proofs of 
his assertion, that, " this ct>nfidence may with 
|ierfect safety and security be reposed in the 
Judges and the H«mses of Parliament ;" for 
indee<l the tnith of the assertion is by no mean5 
self-evident. It is >udicieut]y obvious that thft 



991 Bl'ATE TRIALS. 32 CharlrsIT. iSSO.'-^Proceedingi against R.Thomp90t 



'' lAiroonng (wlucli in mj oonscienoe, I am 
^ fiur from soppoaitt^) (ha^ in the present case 
** the House has abused its power. 1 know, 

CMes in which discretionary uncontrouM 
power is moat likely to be abused, and in whidi 
con«e<|aem!y it is most dangiproas, are thoae in 
which tlie intereata or the personal feelingB of 
the parU; exercising such power are conoamed. 
Now, ir it be so indisputable, as the learned 
jini^e appears to haye thought it was, that each 
ot* the Houses ot Parliament and that courts 
may safely be intrusted with a discretionary 
nnconts-ouied power of imprisonment for what- 
ever it may please them respectirdy to adjudge 
to be a contempt towards themsefres, in most 
jof which cases their personal feelings at least 
frill be concerned; it may not perhaps be 
fbund rery easy to ahew why they mignt not 
aforiiorihe still more safely intrusted with the 
like discretionary uncontrouled power of im- 
prisonment in other cases, in wnich their m- 
tcrcsts and their feelings are not concerned. 
But I apDrchcnd the learned judge would 
acarccly have maintained that in such other 
cases they might be safely intrusted with dis- 
cretionary uiK'ontrouled power of imprison- 
ment : seeing that, in the first Tohime of his 
Commentaries, p. i:^5, when illwitrating " the 
great importance to the public of the preser- 
vation of perKonal liberty," he says, and with 
great tnith, that " If once it were left in the 
power of any, the highest, magistrate to un- 
prison arbitrarily whomever he or his officers 
thought proper, there would soon be an end of ' 
all other rigfits and immunities." Yet indeed 
it is very easily discoverable that if a vote or an 
adjudication of contempt by a House of Parlia- 
ment or a court be unexaminable elsewhere, and 
if the power of imprisonment ujion such vote or 
fdjwlication be discretionary and uncontrouled ; 
each Hoiwe of P^liamcnt and each court pos- 
sesoes a discretionary and uncontrouled power 
of imprisonment for every action and every 
(Mnission of a man's Itfe ; naj^, for the bare un- 
proved imputation of any action or omission ; 
nay even without the nnputation of any speci- 
fic actor omission. «< If" as Mr. Haigrare 
p Jurid. Aig. and CoQ. 16)Tery forcibly states 
it^ '* the doctrine of contempts be thus wide ; 
if the House of Lords or Commons or the 
Court of Chancery, or any of the great Courts 
of Westminster IJall, may construe what they 
please into contempts, and may under that de- 
nomination without trmhby jur}' convict all per- 
■ons of crime, and have also an indefinite power 
of punishing by fine and imprisonment, and if 
aB this when done be thus unajipealableand thus 
vnexaminable, what is there out their own wis- 
dom and moderation, and the danger of ubusing 
80 afhitrary a imiwct, to prevent the House of 
Ijords «r the House of Commons, or any court 
of Westminster Hall, under she'ter of the law 
'of contempts, from practising all the monstrous 
tjrcanny which first diKgraced and at laigth 
•Ifarwhdmed the i^tar-Chambcr ?" 



I 



<* and am sure that the House of Coi 
'' are both able and weD inclined to do j 
<* How prspostsrout ia the present m 

Indeed the Homae of CommoDs hai 
manifyted a very laudable iealousy of 
comnutaenta by others. While tne e 
16Car.<l, o. lOy waa in its passage 
House reaolrodf (see hird Camden's jud 
in the Caae of Entick asainst Carringt 
others, a.d. 1765, in tSa Collection), 
the body of the Lords of the Council, n 
one of tnem in particular, as a privy coui 
has any power to nnpriaon any treehoi 
ject, except in auch cases aa they are 
rized by the statutes of the realm.'' 
all one," says lord Hale (Jurisdiction 
Lords Houseor Parliament, p. 10?), '' t 
a law, and to have an authoritative po 
judge according to that which the judge 
fit siionld be law, though in truth there 
law extant for it." 

How far the condusion against the tr 
the learned judge's tiiftum^ to which th 
ceding considerations appear to lead, hi 
fortified by experience l cannot under 
affinn, because I have not been able to e^ 
so extensively as that would require i 
precedents upon the subject : but if thi 
cise of* this discretionary power ahall \n 
to have been at all analogous to the exei 
other sorts of uncontroul^ discretionary 
as recorded in our history, the prccedei 
certainly not corroborate sir William 
stone's gratuitous assertion. I will n 
a few cases. And first au action of t 
brought in parliament in 18 £d. t. 

*Mnan action of trespass brought i 
liament in 18 £d. 1. (as was then the pi 
by the king, the king's steward 6of his 
YvM) Peter de Chanet, the king's mars 
his household) Walter de Fanecourt, the 
Cornwall and the abbot of Westminster \ 
the prior of the Holy Trinity in Londi 
Bo^ de Clare, (or, as the record express 
which the two latter persons were attac 
ans>ver the five former) for that tlie sai 
served an eoclesiostical citation upon the 
Cornwall as he was going through Westi 
Hall to attend the parliament according 
writ of summons he had received, by 
citation tlic earl was oomnumded to ap| 
such a day at such a place before the 
bishop of Canterbury, and the said Ik 
Clare procured the said prior to serve t 
citation, which serving the laid citation 
to have been in contenii»t of the lord thi 
and to his disgpraco of 10,000/. ; also t 
been to the prejudice of the ecclesiastics 
cbise of the abbut of Westminster grant 
by the court of Rome, by which Westi 
Hiill, as being within the jurisdiction > 
abbot of Wei^iinster, is cxem|vted Ir 
jurisdiction episcopal or archiepiscopal, 
the abbot's danmge thereby of 1,000/. 
hare been to the preindioe of the office 
atewird and mamal (of the king'a hoQi 



u] STATE TRIALS, SSCilABLls II. l6W>.—Pririlegt t^ ParUamtnt. [iS 



'tat Mtm^uDt! Hm Hoom of ComiiMwa 
'■ knc litis pnwer only in caminoB whli all tike 
"MMtorWatmiiuter-IbU; andifBiiytKr- 



tM M the (bnwoc of llw «rl of Comwall 

tmUte bet, urf pat thansdrei npoa the 
la^n^c]'. And jndgincBtM gi*en ■ninit 
it w it utitey be commiaed to tbe Tower 
^nftbelunff's pkanre. AAenranIi Bogo 
ttOM m tmeA to die kmg in 9,000 marin, 
(ipMHBi BOW, in thoae 4lm«airor~— 
mi)a4tfne»ta gay ijOOS3l. damagm 
■frfCnnwaU ftr the tmpMi comi . _ 
fma Iwn. which the eeri of Contrail it the 
iMaceof the biahopa of Ely and Diafaan, 
■<wh«r gT P Wt men, afterward* remitted ox- 

m^ 100/." 

IMWT eariy caK ia tbu ef John deNorth- 
■^ rdencd to id the Appendix (E.) (An*- 
%)B dte Report heforc lu- Th« man waa 
''^fney of the Court of Kiiic'a B<acb, (to 
■M CKumatanee attentiaB tbooU be given 
'»ttaaltnaf[ the eaae aa an aothnrity), anil 
tewetinea of the judget of Uiat court, that | 
^UiadepcDdenreenou^iDal tOMBWa^ed i 
^Njal nmunaniU, he nrmi ailjndg«d in 10 doing 
■*bu«beeB|(uih}-of a contempt of the court. 



' KMu may be aafely tnwted with Ihii power, 

■ tli«y muat sarcly be the Commopa, who ara 

■ chi»en by the people ; for their privilege 



paased upon Fioytle may be seca at vol. 3, p, 
11.^3 of Uiiit ColleL-tion, m a brief report of hia 
caae, wliich appears to have boon tliroughout 
a tlMue of irreKularit)-, luurpation, and op- 
pteanao. In iUmtrattuu of tlie tupic noir 
under eonuderation I will subjoin, at the end 
of this Cue, aome pauaues respecting 
Ployd which occnmil in ihe House ot Com' 
aaona, together with lord Oxford'i rcprobalkni 
of (he mmwodinga in the case. 

JnHidiai'a Caae, 1631, (aee a bctef re. 
port of it, vol. 9, p. 1131, of tbia Collection,) 



the Uouae of Commons took 



upon tl 



into imiloily, 
■■i was oUig«d to find nainpemer*. Itord 
Me Am rdalea tliecaae, with Huie eonfu- 
Mtof JahBiodHobert. 

ICr. 18 £. 3, ronm rtgt Jtot. 151. LUtlUm. 
Ma de NonhamptoD, an attorney of the 

KiagVBMch, wrote a letter to John Ferrers 

Mfrfihekiw'Aeounael, that neither sir Wra. 

tecMrfjuUcc, nor hii fetlowsthe kinggjus- 
■n^ ear their cletka, any great thing would 
di t^ tte eonmuuidiDeDt oTour lord £c lung-, 
^■f^wes PUlipi ia that place, more then of 
MT nv of the rcabn i which nid John being 
oM. enfcsaed the eaid letter by him to be 



^ per se acr^tam Roberto dc 

Ffnm, ya 4< <k concilia regis, qiuc litera 

— = — ■ — ■■ — — ^*"-in: pnetextu 

etjuatidarioa 




r prineev to be a brcBoh 
Mir Men prrvflems, or a contempt Iawai4 
■*as Wl *• Mnk •Mlcwe «Urii Ihey 



•■ IW he abmiU be h^ onwmthy to be • 
jnatice of the peace ; and be dedarml dimUe 
and nnworthy to be of that eommisitoo, or any 
other w^Mtaoercr. To be lent at two of (be 
clock in the aftenooi to tiie Tower Ihroi^ 
the Hreel on foot."— He wa* pardimed to hare 
•ay forthcr punisbment, in respect of hia 
&iher's worth, who was aecretary to Walstngf- 
ham, and sutfered much for religion in queen 
Mary's time, and wiis then held to be » very 
honest, reli^iu gentleman \ And so MicheU 
was railed tii the hw to h«ar Ills sentence on hia 
knee.— ADer uaitcncc oaaced he desired to bn 
heard, but it was denied. 

Mr. ChanceUor of tlie Dulcby. That b« 
might be heard oAcr juilgmpnt, so as it he ai> 
bumble suit ; or any thing not concerning the 
sentence given by lUc Huuke. 

Sir Edaiard Cookf. Tliat he ought not \a 
be heard afW judgment : And so it was agreed 
by the Vole of the whole House. 

In the same year the House of Lords sen> 
fenced John Blount (tliis, Mr. Hargrave, Juri- 
dical Arguments mid Collections, 197, tells ui 
is the first privilege precedent he flod* fiir im- 
priNonment for a ti-rin rertnb by Ihe Lords) (o 
the pillury, and to imuriionment and labour in 
Bridewell for life. His offence was ROunter- 

It, 

the Lord. 

Keeper (thia, Mr, Margrave, ub. tup. tells u* is 
the nisi privilege pnM^ent of a line l^ iha 
Lords) (o a fine of 1,000/. and the pillm}'. 
Two olher cases I will n![iort in the words of 
Mr. Hnrgrave, (Prefiire to lord Hale's Tmct 
on the Juiisdir.tioiiof the Lords' House or Par> 
liament.) 

" Another case, in which judicature aa be< 
twcen the two Hoiihch became the tubjeet of 
eoiisitle'ation, ocrurrcil soon aAer the impeach, 
mcnt of lord Clarenilon. It arose on petition 
to the Common* from a BIr. Fitton, oomplain. 
ing of some eierwc of jiirisdirtinn by thtt 
Lords : and on a report of ihe case from a ootn. 
mittee that the matter nf jurisdiction was flt ta 
be aivued at tliu bar of the House of Commonf, 
the House ^luuinteil a day to hear it accord. 
in^y, andat tnesame time appointed a oan> 
nuncoto iwiuire into prcoedents in casea af « 



43] STATE TRIALS, 32 Charles II. ^SsO^^Proceedmgt agamai R. Thomptcn: [44 



** and powers are the privile^speR and powers of 
" the peoj^e. There is a threat lallacy in my 
«* brottier Glynn's whole arf^ument, wlien he 
" makes the question to bi*, Wliether the 

like kind ; and amongst the C<»mmittee were 
nani^d, solicitor j^reneitil Finch, aftcrwanls lord 
eliancetlor Nottiiifjfliain, Mr. Serjeant Maynard, 
Mr. Vauyfhan, atWwanls loi-d chief justice, 
and Mr. Pr\'nne ; and tlie thi'ce latter were de- 
sired to tiike s^iecial care in the business. 
What was the prf^ci^. nature of this case of 
Mr. Fitlon, is not Rtaled in the Journal of the 
Commons or in the piiiitcd account of the de- 
hate. Dut from various entries in the Journal 
•f the Lc»rds tlie substance of the case appears 
on the whole to have been to thi!« (^tfect. Mr. 
Fitton and three others had been fornierly pm- 
ceede«l a<^ainst l>cforc the li<»rds for contriviiijcf 
and publish ins^ a libel upon lonl Gerrai'd of 
Brandon ; and the 1 jonls in July 1063 had sen- 
lencc<l Fitton in a fine of 500/. to imprisonment 
in the Kinuf*H-Ik?ncli prison till he should pro- 
duce AbraTiain (j ranger, whose name was to 
the libel, and to fuid securities for gfood bclui« 
▼iour during* life, with direction to the chief 
justiire of the Kinjif^s- Bench to take such secu- 
rities. Uufler this sentence in a case at least 
mixeil with privilege, Fitton, noiwitlistanding 
a pronigation of parliament, which confcsserlly 
terminates imprisonment by the House of Com- 
mons in privilege ceases, still continued in pri- 
son ; and one ^Villiam Carr, on his owning the 
lame libel and his having dispersed it, liad been 
recently ailjudgcd by the Lonls to pay a fine of 
1,000/. and to iuiprisonment in tlic> Fleet during 
the king's pleasm*e, and to the pillory. Being 
Wh thus imprisone<l by the I/onls, Fitton and 
Carr resorted by several jielitions to the C'om- 
mons for reliefs. A Committee was appointed 
upon Carr*s petition as well as upon Fitton's. 
However no report appears to have been ever 
made u{)on the [letition of Carr, and what Ik.*- 
camc of his case is not mentioned, except that 
three years afU^rwards he published a relation 
of it and of his sufferings, with a plea against 
the jurisdiction of the Hcuise of Lords. But 
Fitton's |H'tition wsls re[)oi1ed u|Mm as fit for 
solemn arginneut at the bar of tbe IIoiLse of 
ComuKKis as to the jurisdiction of the House of 
Lords, and >vas ordercil to be argued accord- 
ingly in the manner before mentioned. It ap- 
|Mears also, that the oiLie was argued at the bar 
of the Coumions by Fitton*s counsel Mr. Offley, 
who said some strong things against the juris- 
diction oftlie Ijords, but is reproa(*hi>d with hav- 
ing so closely lM)rn)we<l from a prior argument 
of the solicitor general Fincli, afterwards lord 
chancellor Nottioghuni, at th<' bar of the Lords, 
though in what ease is n<<t nu^ntioiied, as to 
havemdueeil the latter to leiive tlie Conunons. 
When the argument was <iver, the del>ate was 
ai\joumed for a week, liut the Journal of the 
Commons is silent as to any further pnK'ce^ling 
ui)on the case, i^nibablv ibis ejise became ab- 
Borbetl in the consideratum of tlur great case, 
which aimobt immediately ioUowcd, and 



" House hive acted according' to their right or 
'* not ? Can any good man diink of involvii^ 
" the judges in a i*ontest with either House sf 
" parliament, or with one another ? And yet 

^ ■ 

brought the two Houses to a direct issue on one 
great branch of the jurisdiction claimed by the 
Lords but ilenied by the Commons : or perhaps- 
tlie Commons thought this case of Fitton aii4i 
that of Carr too much mixed with contempt' 
and breach of privilege to be convenient casH 
to make their stand ujion. However these twa: 
cases should not be foi'gotten. Eitlier they< 
were cases of breach of privilege and contempt, 
or they wei-e not. If they were, the contion-' 
ance ot' imprisonment af\er the prorogation af 
parliament, the fining, and every other part afi 
the sentence in both cases, became disputaUar 
for it may be aske<l, how on breach of privilCiM' 
are the Lords warranted to do moretlian can la 
done by the Commons in a like case ? On tfaa 
other hand, if they were not cases of privily 
and contempt, then the proceedings of tneLoirii 
ajgainst Fitt(»n and Carr were oiten to the objee*' 
tion of an exercise by. the Lonls of an original 
jurisdiction^ over crime, of having ailjudged a 
coniiuoner for misdemeanor without impeach- 
ment of the Commons or the verdict or jury, 
and of having so expressed the imprisomnaal 
|>ai't of their stintence in both cases as to make 
It imprisonment for life, that is, in Fitton's mi* 
less they should interirase to declare it termiB* 
ated, and in Can's iwless the king should pleaaa 
to determine it. To some of these objecikNii 
Mr. Offley did in effect advert in argiung Fifr^ 
ton's cas-e. In remarking also upon the coo- 
sequence of such an exercise of criminal jun^ 
diction by t!ie peers, he nointedly said, * tha 

* juri.s<liction of the Star-Chamber is now trans- 

* JTormed into the House of Lords, but some- 

* what in a nobler way.* It did not occur tn 
him to add, that the jurisdiction of the Star- 
Chamber, though justly odious both for tkic 
mode of trial and the excessive punishments il 
had inflicted, and therefore wisely diolished, 
was in some degree sanctionefl by the 8ta*atei 
of the realm : but tliat it remained to explain, 
how the House of Lords had obtained the Ufa 
or any other sufficient sanction for exercising 
the same jurisdiction ; and how it could U 
proptT to tolerate that in an hereditary kind o 
Star-Chaml>cr, without the sanction of statute 
and without any other limitation than such ai 
their own moderation should prescribe, whu4 
the legislature had so indignantly abolished, ii 
the case of a court sanctioned by statute am 
not pretending to adjudge crime of a highei 
oifler than misdemeanor." 

It may be (|ucstioiied, whether in answer 
to what has been stated, it will be Uiought suifi< 
cient to alledge, in support of Mr. J ustice Black 
stone's assertion, that the moderation, tlie up: 
rightness, the intcgiity, the regard to jiistici 
and to rational lil)erty,Vhich now character«< 
the procfx.'dings of our Houses of Pariiameq 
and of our Courts affoixl us security, that siniifau 
proceedings will not hcrcailer occur. . WluU Im 



n'ATE TOIALS. 32 Cbablbs II. \6s6.~Priviltge of Parlianimt. 



bee Mtb i 

mnm ii the only judge uf i1 



mtv be. Lmws Are nrovideil, uU the insti- 
iviateirty are establinbod, nnt upon con- 
c of tlu eoud vhtch we hope men will du, 
naporeb^nuEnortbecTil, which we know 
nj Jo. True il ii, llierc is no immediate 
ti upteheniriuD tlmt mrn will be net 
far pUurv and (.-oDdeniiipd to liord labour 
('■ ftgaot.fur couaterfcltinif aliOrd'spro- 
D : bat that most [mwerfuf ad^ot-ate fbr 
Mk ronsiitullonal ii;uvcTincnt, Sir. Burke 
ftaioalbeCausesofthel'resentDin^ou- 
, bu left lU most whnlesoTDc wan]in|r, 
tpiUc liberty will be among ua, ns ainou|r 
Mefton, obooxiuui to «ome )i«rson or 
; udilut opiMjrtunitiesMillbelumiiilied, 
efting U KBEt, Bomc ultcralion to the 
Eee of uar eouBtttutitni. These attcmjitii 
MnHjr Tsiy in their mode, acconling tu 
■4 rirrmiislaiKes. Forambition, though 
mr the same yvneral vIeivE, has nut at 
wtbe taiae means, nortlic sanieparticu- 
fKCt. A (Treat deal of the lumlltire of 
nnnnnv la worn to rai^ ; tlie rest is en- 
Mt <if ttihioB. Besides, there are lew 
■tofo T«ry clumsy and awkward in their 
!« ulo rail into the identiisl snare whii'h 
!vi*d fatal to their preOec(»Bora. 
fben ao aHiitrary imnosition is attempted 
the Mibject, undoubtedly it will tot uear 
ferelKad thenaraeurSbiii-monev. There 
tot(er that an extension of the forest 
rinold be the cboten mode of opprea- 
■ttil Igv. And when we hear any in- 
•rf miniMerial rapncitv, to the prejiidiec 
mn^tuaf private lite, It will rertahilynot 
• oacnoD ut' two luimlred [iiiHRtu I'ruui a 
■ •Tfaslii'iii, for lisiTe lu lie witli her own 
ad." r L'siir HuironiM de Nerit dot Domino 



Domino Sim llii)^ 



iij^iiG d 



cSlcvill. 
I de Snnlnn) At- <viituiii jinllinis 
c Hnip> de eeiituin {faliinlK ndile^idifi 
caput Ua»dra;rcsima> ; etsiquie ilbirmu 
t wl tune reddendo, redduitur ud pruxl- 

Paseh. Rut. fin. 6. J. m. S. dorsu.] 
'.Ttrr KXc has it mm uiBitners and its po- 
Irpeadi-nt upon them ; and the some al- 
1 will not be made against a conslilution 
farmed and matured, tliut weri- useit to 
y il in tlie cradle, ur to resist its yrnwtli 
f itiiDraDey. 

Igainst the being of parliament I am sa- 
il* irwa» bare bceu ever I'niertaiiied 
Aaicvounian- Every uiut must 
^MkbalmiiiHv the interest of tlic 
MM^ HMMrid etuue interposed between 
SI and the people. The i^entlemen 
■■e of Conmitn*' have an interest 
^n( in aiutaining the part of that 
It caiiM. However they may hire 
iftan of their voices, they Dtver iviJ 
hi Sm uid inlrenmnce. 



"judges in this point, but we must be gorenisj 
"by the eleven, and not by the single one. 
'* It is a right inherent in aO supreme courts ; 
" the House of Coinninns have always exer* 
" cised it. Little uicc objections of particidar 
" words, and forms and ceremoaics of execU' 
" tier, arc not to be regarded in the acta of tha 
" House of Commons; it is our duty to pre- 
" aume the orders of that House, and (heir cxa- 
" eution, nre acconling to law. The Habeas 
" Corpus in Sliirmv's Case v 
"law. Ic< 



LT entirely with my Lord Chief 



1771.— Oliver's Case. 
And in Mr. Alderman Oliver's Case, argaeil 
in the Court of Exchequer on the 27th of April 
1T71, the tour judges, CbierBBrunFoi'ker, Mr. 
Baron tjuiythe, Mr. Baron Adams, and Sir. 
BaroD I'errot, unanimnusly acknowledged in 
like manner the right of tlie House of Cooi- 



1709.— Dumford and East's Report*, K. B. 
Book 8, p. 314. 
Flower's Case.f 

In the case of Flower, comraitt^ by the 
Huiiie of Ijonls, t'ur a liliel nn the Usliap of 
I^audatr, on his being broiit:ht up to the King's* 
Bench npnn Flabeas Corpiks. 

Lord kenyon, Chitf Justice, said—" If we 
" entertained any doubts u[)on this aubjcO, it 
" would be uiibecomuig iu us to lusli to a 
" ipecily docisioD n-itbout looking through aU 
" the cases cited by the di^fendant's oounsel; 
" but nut having any doubts, 1 think it best ta 
'• <li!4>usc of the case at ouce. The cases that 
" have been referred to arc all coUerted in lord 
" Hale's Treatise on the Juriiidictiun of the 
*' Lords' Fluuse >>f |>arlinmoiit, and lliat valua- 
" lile I'relace to it iniblished by Air. Hargrave ; 
>' but iii tltc whole ot' that puUication the de> 
" feiulaiit's counsel hns luit found one case ap- 
■' plin^le tu the present. This is one of the 
" pluiiu-st <|iicsil<nui that ever was discussed in 
" a court of law. Siuiie tilings, however, have 
*' drup|tt:d from thu learned counsel, lliut re- 
" iiiiirc aj) anHwer: — First, it is said that the 



'* Acc(inlin<>ly those wlio have been of the 
mnstkniiwiiilevotiou tu the will aud|)lcasure 
of tlieoiurt, bavi'nl tite same time been the 
must tbrwuni in asserting un high authority in 
the House Iff Ciimmoiix,. When tliey knew 
wlui weretnusc tliat BUtliority.and how it waa 
to Ih' euiploynl, thcv thought it never eould be 
carrii'il tiH> far. It must be a'ways the wish 
uf an uneonMitutinnal statesman, that an 
House uf Commons who are entirely depen- 
dant upon him, sIkiuIi) bave every riglil of the 
lieoplc dcjMUidont upon tlieir pleasure." 

* ^<ec Mr. Uargravc's oliscn'atipiu on Ihi* 
case, 1 .lurid. Arg. and Coll, 17. 

t tk-e litis Case heieBncr iu this CoIInc- 



47] STATETRIALSt 32 Citarlss II, \6V>.^Prouedhgi tgmmgi R. Tha^VBon: (i 

IC Tt^^^^ ^^V ---»- :^ ^m^ A ..^M.^ ,M^..<w.M.^ . aL.^« (( Alan* *Ua Utf^noA aI* Y mmAa X^.mmm ma* «l..i> - - -- 



*' Home of Lords it not a court of record : that 
** the HoQie of Lords wheo exercising a legis- 
«' ktire capacity is not a courtof record is un- 
«< doubtedly true; but when sitting in ajodi- 
«' dal capacity, as in the present case, it is a 
«« court of record. Thai it was objected, that 
<« the defendant was condemned wiUiout being 
<* heard in his defence : but the warrant m 
** oommitmcnt funusbes an answer to that ; 
*' by that it appears, that * he was informed of 
it < the complaint made against him,' &c. and 
«* having been heard as to what he had to say 
«' in answer to the said compbiint, &c. he was 
•( adjudged * guilty of a high breach of the 
<* ' privueges of the House,' Stc, so that it 
** clearly appears that he was heard in his de- 
* ftntfe, and had tlie same opportunity of call« 
** mg wit n esse s , that erefv other defendant has 
f^-in a court of justice. Then insinuations are 
<< thrown out against the encroachments by the 
«* House of L«rds on the liberties of the sub- 
«< jeot : but the good subjects of this coimtry 
<' feel themselves protected in their liberties by 
•' both Houses of parliament. Government 
«* rests in a great ciegree on pubVc opinion ; 
** and if ever the time shall come, when fac- 
*' tious men will overturn the government of 
<< the country, they will begin their work by 
** calumniating the courts of justice and both 
•< Houses of iMtrliament. 

** The ground of this proceeding is, that the 
** defendant has been g^lty of a breach of pri- 
^ vileges of the House, and a contempt of the 
«* House. This claim of right to punish by 
*^ Ane and imprisonment for such an offenre, is 
<* not peculiar to the House of Lords ; it is fre- 
** ipieiitly exercised by this and other courts of 
** record, and that not merely for contemiiti} 
** committed in the presence of the court: One 
** instance of which was that of Mr. Beard- 
«* more*, under sheriff of Mi<ldle8ex, for a con- 
*' tendpt of the oourt in not executing part of 
<( the sentence pronounced on Dr. Slicbbeare. 
«* And tliat case answers another objection, 
«< strongly insisted on by the defendant's coun- 
•( sel here, that if the party accused can be pu- 
«* nished in any other manner, tliis moile of 
«* trial cannot be resorted to ; for there Mr. 
** Beardmore might have been indicted, but 
** yet he was attached, examined upon inter- 
•* rojpitories, and fhied and imprisonea. Again 
<* it IS objected, that the House of Lords cannot 
*^ impose a fine for such an offence : but this 
*' ana other courts of record have the power of 
« finine in this summary manner ; and why 
<< should not the House of Lords have the same 
** power of imposing a fine for a contemjit of 
•* their privileges? Then several instances were 
** alluded to, where the House did not choose 
<* to exercise this privilege, but directed urose- 
*^ cntions to bo instituted in the courts of law. 
•< The same ol>servations might equally be 
<' made on the proceedings of this court, who 
'* have sometimes directed indictments to be 
« preferred. We are not therefore to conclude 



mm 



♦ Vide « Burr. 792. 



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that the House of Lords has not the pow 
of inflicting this punishment, from the ci 
cumstance of its not exercising it on all oec 
sions. When lord Shafleobury's Case can 
on, there were some persons who wished 
abridge the firivilMfcs of the House of LorA 
but Mr. Serjeant Maynard was one of the 
who argued in support of their privilege 
and he surely was not capable of concma 
in any attempt to infringe the libertiee bfu 
peoi>ie. It has been said, however, lb 
though many instances arc to be found i 
which tlie House of Lords has in poinli 
fact exercised (his power, whenever lb 
power has been resisted it lias been reairti 
with effect ; from whence it is inferred, th 
the House of Lords has not the authodl 
which it assumes : but in this case I m 
avaO myself of the same ailment in &voi 
of its jurisdiction, for no case has been Iba 
where it has been holden to be ilkgaJ in tl 
House of Lords to 6ne and im]irison a peiM 
guilty of a breach of i>rivilege. Wc WV 
bound to grant this liaheas Corpus ;-b 
liaving seen the return to it, we aixi bound ' 
remand the defendant to prison, because tl 
subject belongs to ' alind examen.' Then 
nothing unconstitutional in the House i 
I^rds proceeding in this mode for a bren 
of priv-uogc ; ana unless we wish to asakti 
the attempt that is made to overset the Ll 
of Parliament and the constitution, we ni 
remand the defendant." 
Grose, J.—" This question is not new; 
has frequently been coiisiden*d in couitii 
law ; aud the principles dLiciissed to-dv 
and the rases cited, were examined not mai 
years ago ; aud the result is very ably slift 
by Lord Chief Justice I>e Grey, m 3 Wl 
199. *■ When the House of Conunoos (a 

* the same may be said of the House 

* Lor' Is) adjudge any thing to be a cuotem 
' or a bn^aeh of jtnvilegp, their adjudicati 
' is a couvii*tif»ii, and tl^eir commitmeoc 
' consequence, is exccuti(Hi ; and no olfa 

* court can discharge or hail a pei'son that il 
' execution by the juvigiiivnt of any oth 
' court.' In another [lassuge he said * Eva 
' couit mu^t be sole judge of its own co 

* tenints.' And agahi, * The counsel at i 

* bar liavc not cited one ca^ic where any coi 
' of this Hall ever detciinioed a matter 

* privilege wliieh did not come immediati 

* oefore them.' 

'' Having stated this, 1 think I need nol m 
more in the prtseut case." 
Per Curiaiu.t 

IjCt the defendant be remandi 



f Mr. Justice Lawrence was not in con 
being indis|K>8e<l ; and Mr. Justice Le Blal 
havinf^ attended at the Guildhall sittings I 
lord Kenyon, and not returiiinn* tiU the ■!( 
ment was closed ; gave no opinioiw 



■9] STATE TRIALS, 39 Cbaslrs U. 

Apranm (E.) 

Cud bT Commifaiieiita for Contempt by 

ComtB of JuMiee. 

In Micfaaflniu Term, 18 Edwnnl 3. 
' J(hi Pe NorthatnptOD, aa Bttomey of tlie 
Cwt of Kin^i-bencli, oonfesiing hiniEtlf 
giilr vtwthiag a lc4l«r rMpecdne Iho judges 
M'omitat Kin^s-bench, which IcHlt wii 
iii»lpi ij Uk court to contaiD no trnth in it, 
uA )• be calcuhled to excite the king's iuilie- 
wrtaiyiiMt the emirt and the judges, to the 
imW (f the nidcwirtuHl judge*, waaeom- 
hiwdHihetnanM, and ordered to findtc- 
(■ilMi Af bis good hchariour.— S Inst. 174. 
BiUryTenn, 11 Ann. 

A Writ of Attocbmeot was issued gainst 
IWoM LHWaon, liir sppakinff disrespectful 
Midi «f the Courts cf QDren's-hench, u|ioa 
bbong serml with a nile of that Court. 
Hilary, 14 Ann. 

A Writ of Attachnicnt was granted against 
lAmd HemUe, for speaking disrespectful 
mAaflhc Lord Chief Justice of the Court 
4QaEen'*-bnx4i, moA his warrant. 
Trinity Term, 5 Geo. 1. 

AWiitef Attachment^iainst Jones, 

httmi&g the process of the Court of KingV 
Wh eogtemptuouHly ; and there being an 
■timatiM that he icEed on the sasistsnce of 
tH MaW'Woriunen to rescue liim, the Court 
■M tat theritcriffof Middlesex into Court, 
■dMdcredhimtotakea auffirient force.— l 



isTem, OGeo. 1. 
A Win of AnachneDt was granted to Richard 
I'ifc, he conlemptuouo wmds concerning a 
wntfriM a judge of the Court of King'S' 

Eaatee l^nn, « Geo. 1. 

■ Wilkiiw Iwrinff oonfemed himself 

nik^oTfuUidiingftlibriupon the Court of 
M yi t an h, the diort made « rule coin- 
■iMgfain tothe marshal. 

He next term Wilkin having made an affi- 
kilehanring doetor Colebatch with being the 

iMkorofuie libel, was sentenoed to pay a fine 
tf 3/. and to gi*e security for his good b«- 



inbryTmn, rOeo. 1. 

Aa Altmt^naent waa granted against John 

Buber, esq. for cnDtem[iliious words of the 

Unat of Kiuf^S'beuch, in a speech to llie 

NO»on eouncJ of London.— 1 Stim^e, 443. 

Hilary Term, 9 Geo. 1. 

Doctor Col eb ntch hsTing been examined 

[ ^Bt e rin gal ories, ft>r contempt in ptiblish- 

I |vilAel, the interrogatories and aiiKwer were 

, NMrnd u the king's coroner and aitomey ; 

bi Easter Term, 9 Goo. 1. 
. Or. Colebateh,1)rang in the fiustody of tlie 
'O'dttl, wav brought roto Court, and waa n'li- 
''wtdto pav a fioeot SOL and to give security 
hUi aoarf behkrionr liir » jeor, and van 
I MMUedwiheaMriiaiaflMestini. 

'01. Till. 



ifiM. — Privilrgf of ParVemrnt. [50 

Michaelmas Term, 9 Geo. ]. 

A Writ of Atlachiiicut ma granU'il s^nst 
John Uolton, clerk, iar contLinptaaus words 
respecting the wamiiits of llie I.ord Chief 
Jiuticeof the Court of K Liar's- bench, al a meet- 
mg uf hia poriiihioiivi^ in the Cburch-yaid. 
Easter Terra, 9 Geo. 1. 

John Wyalt, a bookseller in St. Paul's 
Chiirch-yanI, ]iitl>li!ihing a p.-unphlet, written 
byDr. Cooyers>IidTFIeton, in tlie il'^icntiiin of 
which to the vice-chancellor of Camlnidge, 
were some nassajfcs reflecting upon a proceed- 
ing of the Court of Kinir's-beucli ; tlii: (^uurt 
granted a rule Furaiust \Vyatt, tu shew cause 
why a M'rit of Attachment elinuld not issue 
agoiiist bim for his ei<iitt^iupl ; and Wyatt 
having made an affitlaiit that CurneUus Crown* 
field bad emplciyeil liiui to sell tlie iii>ni[>hlet, 
and he bavin); cliar^red l)r. Cnnyers MiddletOD 
with being llie author of it, Crountiekl was dU- 
charged upon payment of the «Mh, and a Writ 
of Attnrliment was granted against llr. Con- 
vers Middleton, who, in tlie next term, gave 
bail to answer the contempt ; he ivas after- 
wards exaiuined upon internigatorit's, and upon 
the report of llu' kind's coruuer and attorney 
lie was adjudged tu E>e in ccnienipl, and was 
committcil tu the martial in execution <|U0UB- 
qiie, &c. and it was reli-rred to the luasier to 
lax thuprusecutov's coKlN. 

It is stated in Fortescuc's reports that Dr. 
MiUillelon was RCiileneed lo pay a line of !>0l. 
arid to give securily fur a year ; but ni> nde fur 
KUch sentence has at |ii'est-nt been lound ; Bnit 
Br. Culelnlch hat ing received such a Nenlence, 
for a similar ofleuee, in' the |ireee<ling term, it 
is pusMble that this senlrnce may, by iiiisiake, 
have been applied to Dr. Midilletun. 
Miehaelmas Term, 5 Geo. f. 

The Court granted a Writ of Attachment 
agiunat lady I^wli'Vi ti>r a contempt in pub- 
lishing a pa|iei' relk'cting upon the jwuceedin^ 
of the Court ; and she having been exonuned 
upon iutcrrc^tories, was in Easier Tenn tbl- 
luning reportMi by the oSicer of the Court t> 
be in contempt, and was conunitted lu the 
marshal. 

And in Trinity Term 6 Geo. 3, she was 
brought into Court, aud a rule made, xlalin^ 
lliat " fecit Euhmiflsionem situm petivit i eniam 
" de curia ;" and thereupon she was lined live 



also examined uixiii iuterru^tories, tor 

rblisliing the same libeJ. !j BamBrdistouj 
•s It. 43. 

Extract fii>m Atkjiis's Rp|)orts, Book 1, p. 4<!t>. 
First Seal after Mieliaeliuas Term, 
Uw, 3, 1742. 
A motion agaiiiNl lite printer of Hic Cham- 
pion, unil the pritiler of llieSt. .lamcK's Eveiv- 
ing Post ; that the former, wlio is already in 
the Fleet, niar be committed elose prisoner, 
and that the other, who H «l Vn^, «>?; W 
£ 



$1'} STATE TRIALS, 31 ChAeIesIL iSSO.-^Prcceedingsngahui R.37lMq 



committ^ to the Fleet, for publishing' a libel 
Against Mr. Hail and Mr. Garden, executors of 
John Roach, esq. late major of the garrison of 
Fort 8t. George in the East Indies, and for 
reflecting likewise upon ^governor Mackay, 
governor Pitt, and others, taxing them with 
turning affidavit-men, ^c. in the cause now de- 
pending in this court ; and insisting that the 
pnblishuig such a pa(>er is a high contempt of 
this Court, for which tliey ought to be com- 
mitted. 

Lord Hardwicke, Lord Chancellor, 
' Nothing is more incumbent upon courts of 
justice than to presence their proceedings from 
being raisrcprescDted ; nor is there any thing 
of more pernicious consequence, than to preju- 
dice the nofinds of the' public against persons 
Concerned as parties in caases, before tlie cause 
is finally heard.* It has alyi-ays been my opi- 
nion, as well as the opinion of tnosc who have 
sat h^re before me, that such a proceeding 
on^httobe discountenanced. 

But to be sivre Mr. Solicitor- General has put 
H upon the right footing, that notwithstanding 
this should be a Ubel, yet unless it is a con- 
tempt of the Court, I have no cognizance of it ; 
for whether it is a libel against the public, or 
private persons, the only method is to pro<x^ 
fit law. 

The defendants' counsel have endeavoure<l 
two tilings— 1st, to shew this paper does not 
t^ntain defamatory matter ; l?dly, if it does, 
yet there is no abuse upon the proceedings of 
this Court : and therefore there is no room for 
me to interpose. 

Now take the whole trw-ether, though the 
letter is artfully pennefl, there can remain no 
doubt in every common reader at a coffee- 
house but this is a defamatory hbel. 

It is plain therefore who is meant ; and as a 
jury, if this fact was before them, could mlike 
no doubt,. so, as I am a judge of facts as well as 
law, I can make none. 

1 ini;u[ht mention several strong cases, where 
frvcn teigncd names have been construed a 
)ibel u|K>n those persons who were really meant 
to be hbcUed. 

Upou the whole, as to the libellous part, if so 
far there sliould remain any doubt whether 
the evccutqr^ are meant, it i^ clear beyond all 
contradiction upon the last paragraph, ui which 
lire these words : ** This case ought to be a 
** warning to all fathers to take C4ire with 
^' whom they trust their children and tlieir for- 
f * tuncis, lest their own characters, their widows 
f * and their children be aspersed, and their for- 
♦* tunes Kipinudered. away in law-siuts.^' 

And HkcHise, though not in so strong a de- 
cree, tlie words " tum«l affidavit -men," is a 
liliel against those gt^ntlemen who have made 
them. 

There are three different sorts uf contempt : 
One kiml of contempt is, scandalizing the 
jPouititeelf. 

^ Vide liaker v. Hart, post. 488, Mr«. Far- 
4^'8 gwe, « Vcs, ^20, 



There may be likewise a €X)nten 
Court, in abusing parties who are co 
causes here. 

There may also be a contempt of 1 
in prejudicing mankind against pen 
the cause is heard. 

There cannot be any thing of grea 
quence than to keep die streams 
clear and pure, that parties may pn 
safety botti to tiiemselves and their < 

The case . of Raikes, the print 
Gloucester Journal, who pidilistied 
one of the Journals against the com 
of Charit^le Uses at Burford, callinc; 
tisement, A Hue and Cry afler a C 
of Charitable Uses, was of the sau 
this, and the Court in that case comn 

There are several other cases of * 
one strong instance, where there w 
reflecting upon the court, in the ca: 
tain Perry, who printed his brief 
cause caine on ; uie offence did not 
the printing, for any man may give 
brief as weil as a written one to coi 
the contempt of this Court was preji 
world with n^^ard to the merits of 
before it was beard. 

Upon die whole, diere is no dou 
is a contempt of the Court. 

With regard to Mrs. Read, the p 
Saint James's Evening Post, by wii 
viation, it is said, that she did nol 
nature of the paper; and that print 
and pamiihlcts is a trade, andwh) 
her livelihood by. 

But diough it is true it is a trad< 
must take care to do it with prudence 
don ; for if they print any thin^ tli 
luus, it is no excuse to say that the | 
no knoA^ ledge of the contents, and w 
ignorant of its lieing Ubellous : anr 
rule of law, and 1 will always adhi 
strict rules of law in these cases. 

Therefore Mrs. Read must be coi 
the Fleet according to the comuio: 
the court upon contempts. 

But as to Mr. Hujvgonson, who it 
prisoner in the Fleet, I do not think 
motive for compassion ; because the 
generally take the advantage of t 
prisoners, to print any libellous or d 
matter which is brought to then 
scruple or hesitation. 

U these printers had disclosed di 
the person who brought this papc 
there miu^ht have l)een something sa 
gadon ot their offence ; but as they 
per i<f conceal it, I must order Mi*s. 1 
committed to the Fleet, and Huggoi 
taken into close custody of die ward 
Fleet. 

13th Vesey, jun. page 237. — Lord 
Lord Chancellor. Dec. 20, 2i 
E^qiarte Jones. 

The object of this petition was to r 
Commitlee of a lufliftqcy and (0 biiiig 



«] STATE TRIALS, 52 ChabLBS II. l6ffO.—PrMhge of Parliament. [ j« 



LonI CbumUor an alleged contennpt by tlip 
ODDmiltM aud bi* wife and other personi, bh 
tha atnbora pnoten and publLKlien of a 
fiBphlct, nitb an addresi to (he Ixint Chan~ 
ailof by way of dediration, rcfleclii>i»n|wn the 
oadiKt of tbe petitioner and other arfiiig' in 
Ae sunagenient of the afbirs of the hinalip 
■deronkn made in piirenanre of the Iruxls 
tf a aOI, tbe affidavit ivprciiciitiiif; the conduct 
rfthr mmmrttee and his wife iotnujin;; into the- 
HMr'i office, and intemiptiiig liini, not only 
ialhebniiiKSi of thU particular lunacy, but nlh 
aim haqness. The wife of the timiniitlee 
UMndhrneH'to be the author of the uamphlel. 
(Dm; the innocence of her hiisbanil. 

IV SoUcitor- General (Sir Namucl Romilly) 
■rf Hr. Hart, in support of the petition, weii 
Apfrd by the Lord Chancdlor, who called on 
da (oonad i^;aiii«t it. 

Mr. Plowden resisted the petitinn, contend- 
■ctbtlthe petitioners had a remedy at law. 

liad£nJtiiif: fThe Lord Cliancetlur.) Ab 
kiMiedy at law, the aubject of this applica- 
IM ii not the libel a^auiot the petitioner. — 
Tkiawof Ronch v.Gan'an['jAlk.4C9] »nd ano- 
thr, there mentioned, were cases ol'constructirc 
tMEapt, denendtDg; upon the inft-r^nrc of an 
tdntion to olmlruct the course of justice. In 
AJinSancr, that ianotletlto conjecture; and 
■hlim may be said as to a connruutive con- 
tain thtnngn tite medium of a libel againKt 
poHM engaf^ in controversy in the court, it 
■•tr has beni nor can be denied, that a publi- 
atfke not only with an obvious tendency but 
vitti tbe desig'n to obstmct the ordinary course 
rf juttee, ia a very higli contempt. — Lord 
BmM^ rmaidered petwuis concmied in 
iWrWimai of the court aa beiiw underthe 
fttteim of the court, and dM to be drirai to 
Mkv maEes against libda upon them in 
tm nftcL — But without considering whether 
lb ii or IB not a libd tipaa thb (letilkmer, what 
ORHcan be alleffcdtbr the whole leoorof 
im bak, asil introduced by thii dedsration of 
fteporaoxe which the author bte|>ded it to an- 
Mv? limiKlit besuffidenttonvof tbebook 
Mt, Gripped of the dedicatian,4iiat it could 
bpaUiahed with no other intcniion than to 
teroct the duties cast upon the petitioner, and 



Dee, la tlus dedica&n tbe olject is avowed, 
J iAaaag tbe proceeding of the court 
maHaff upon its nue* and mileia, and inte- 
^^uf the puWc, prejitdtced in fovnur of the 
■hir by her «wb partial rvjircscntatitni, to 
Menc ■ diffkrent tpecies of jnd^cnt from 
tewtuch votdd be ftdnuMstered in the ordi- 
Wjeonrse, and by flattering the judge, to 
■a the source of justice. — This pamphlet bii: 

Is to the printer*, lord Hanlwickc obscrres. 
IliiQaexcnaelhntthe printer was ienonuit of 
tbt omtenti. Their intention may Tiave been 
^Mmt ; but, a« lord Manstield hod said, the 
kawkencttlieiUegri inoti** ia iiterad muit 



be traversed, and tlic party adfliittinf; the Ml 
cannot deny the niotjie.— Thp maxim, ' Artua 

made npplii-dbfe to lliiu xubje^H in the ordinary 
ailministr.itions of justice, as tbe cffen woufd 
be that the ends nfjustice would be dcfuatcd try 
contrivance. — Itiit upon the satis^ctoiy ac- 
count ifivcn by three of these printers, tlHiuifh 
undoublcilly under a criminal pnireeding, tiiey 
would be 111 mercy in a casu of ciinK-mjrf. 
Tlinu!{'li I have tbe juriijdiction, 1 shnll notnsu 
it. — 'Ilie oilier printer appears upon the affida- 
vits under illHerem circnmslnni.'es. Having 
maile the obxcrvalion, (lint this pam|ildi>l ought 
not to be |iriiitc(l, being intnUy uniniercxtinff to 
the uublic, ret lie does print it ; and thbugli 
the liicui pciiiCeritiit was aUbnted to him, attii 
he was called u|ion not to print any more, 
he proceeded until be hod noticv of this pe- 

Lel (lie Commiltec, and Uis wil%, and tha 
printer to whom 1 have last oUudnl, be cum- 
tiiitted to (he Fleet Prison. Oisiuiwtbe Coni- 
miltce from that office ; and direct a reference 
to the master, as to tbe appuiutnient of another 
Coiumiltec. 

Extracts from Sir Eanlley Wi)niot*t) Opinions * 
and Judgments ; p. 353. 
Hilary Term, 5 Geo. 3. V65. 
Tlie KciO n. Almoh. 
" It ha.s been argued that the mnde of pro' 
cecding hy attachment It uii invasion ujinn the. 
ancient simplicity of the law ; that it took its. 
rise from the statute of tVestuiiusler, eh. 3 ; 
and Gilbert's Histoh' of the Practice of the 
Court of Common Pleas, p. 30, in the first edi- 
liun, is cited to nmre that position. And it h 
said, that act only ai>plics to ixriont rcsLsting 
process ; and tliou^ this mode of proceeding 
IS very proper to remove obslructioiis to tha 
execution of process, or to any contumelious 
treatment of it, or to any contempt to the au- 
thority of the court, yet that pn])er9 retlccling' 
merely uiKin the quajitits of jnilgiw Uipm selves, 
are rot tne proper objects of an attairhnient ; 
that judges have proper rcmiilies In recover ft 
BBtislaction fur such reflections, hy actions of 
"Scandalum A1a(,'Datum;" nnd that in th* 
case of a pear, the House of Lords maybe ap-> 
plied to fur a breech of privilege : That snch 
libellers may be bruught to puiilshnient by in- 



* Tliis opinion was nut delivered in court^ 
tbe prosecution having been dropped in conse* 
■luence, it is sup|>o«i,'<l, of the resignation of the 
tlicn Ailomcy Ucnerjl ; but atler the death of 
tliiv eminent and very learned Chief Juntice, 
was fdund in his own band-tvriting among hia 
papers by his son, nho published it in Memon-fl 
of lii» Life, p. S43. The occasion of it was a 
motion in the Cuurt of King's- Bench, Ibr an 
attachment against 3Ir. Ahnun, for a contenpt 
in publishing « libel i^^ tha Court, and ui>on 
ttw Cbiaf Jiutieft. 



55] STATE TRIALS, S^ Charles II. 1 GhO.'^Praceedimgt ag^mti ItThmpi 



dietment or infovmation,* that there are bat 
few instaDcen of this sort upon libds on courts 
or judges ; thai tlie Common Pleas lately re- 
fused to do h ; that libels of this kind nave 
been pmseouted by actions and indictment; 
and that attachments ought not to be extended 
to libels of this nature, oecause judges would 
be determininif in their own cause ; and that it 
is more proper for a jury to determine quo animo 
such libels were published. 

'* As to the cnrijpn of attachments, I think 
tiiey did not take their rise from the statute of 
Westminster, ch. 9 ; the passacife out of Gil- 
bert docs not proKe it ; but ne ordy says, '< the 
^ oriffin of commitments for contempt, ' seems * 
*' to oe derived from this statute ;'* but read 
the paragraph through, the end contradicts tlie 

* seeming * mention^ in the beciniiing of it ; 
and shews, that it was a part of Uie law of the 
land to commit for contemjvt, confirmed by this 
statute.! And indeed when that act of l^rlia- 

* Thus Mich. 8 Elix. Rot. 1, Walsh wosiu- 
Aoted for scandalising one sir Robert Catling, 
and the Court of Queen*s-Bencli, by saying, 
** My Lord Chief Justice is incensed agaiimt 
me ; I cannot have justice, nor can I be heanl, 
fi>r it is made a court of conscience." See the 
Attorney (leneraPs Argument in the Case of 
the City of London, Quo IVurrauto^ a. B. 1683, 
infra, 

t On this subjoct the following passage taken 
from Mr. £vans*s letter to sir Samuel Uowilly 
is deserving attention : 

*' As a great deal has been urged in favour 
of the privilege of the Commons to imprison 
for a Libel, by way of analogy to the practice 
of Courts of Justice, which, it is said, may 
commit for contempti, I shall beg leave to ac(d 
a few words on that part of the subject. liord 
Chief Baron Gilbert h^s stated, that, * .It is 

* one part of the law of the land to commit for 
' contempts, and confirmed by the stat.We8tm. 
« 9, c. 39." (Hist, of Com. Pkais, p. 25). 
Now, I must declare, that after lookmg into 
that statute, I camiot find any thing to war- 
rant his assertion. AH that the statute says, is, 
that many great men (who in those da^s had 
oistles, ftwtresiies, and lilierties, wherein tliey 
used to secure themselves) had resisted the 
Shorifi' in executir^ }he Kings's writs ; which, 
<7eating great inconvenience, tlie Sheriflf b 
ordered to remove all obstructions to the execu- 
tion of the pnicess. The act, therefore, only 
applies to pc>rsons resisting the King's writs, 
and docs not say a ivord aliout any other con- 
tempt.- 1 must confess, that I cannot nixlcr- 
«tand how Courts of Justice can imprison- for 
a MMf without infringing upon Magna Charta. 
All tliat they csn do, in a constitutional man- 
oer, is, in my opinion, to imprison such per- 
anhs aft commit contempts in fticie curie ; or, 
m o^er words, who occasion an immediate ob- 
itruction to the administration of justice, nnd^ 
as audi, are disturber^ -'oT^ the peace. But, 
eran in dioae cases, Lfijllstiie that the Courts 

"iBDOi fwmstitiitinnilJr^ Iwiffriiinii durinff thair 



ment is read, it is iropoasible to draw 
mencement of such a proceeding out 
empowers the sheriff to imprison pt 
sistmg process, but has no more to 

pleasure, but that the offender must a 
be brought in, to answer by due proce 
and receive sentence of punLshmenl 
jury. For, tliough the stat. Westm. 
declares. That such person as shall be 
of resisting tlie Shenff, shall be pui 
the kind's pleasure, yet my lord Co 
exposition of these wwds, says, * Tli 

* cording to that which shall be, upon 
' ceeding, acyudged coram regt in th' 
' Court of Justice ; for no man can hi 

* ed by absolute power, but ttecundum 

* eontueludinem Anglur, as hatli beei 
< fore, in the exposition of Magna Cb 
' elsewhere hath been often said.* 
^4.) Ifa Judge could imprison fo 
he must necessarily become what our i 
warrants, that is, a Judge in his ow 
and if he could imprison during his 
he would be possessed of an absolni 
which our constitution does not alio 
fact is, that great and good men lia 
times, been very tender of the lil)er 
subject. Chief Baron Gilbert sa; 
' When the Common Pleas proceeded* 

sum frcgit, the defendant was under 
disadvantages as when he was an 
a Latitat." Upon which the annots 
was well acquainted with the laws ar 
tution of his countrv,) observes — * I 
Chief Baron caiididdy aUoi^-s, tliat tl 
by Clausum fregit in the Common F 
by the Latitat in the King's Bench, 
the defendant under disadvantages. 
Chief Baron had said, *• under unwa 

* oppressions in open violation of Kin 

* Great Charter, not only by subvei 
' perverting the ancient process of t 
< trespass, out also by an ai'bitrarv 

* barons abuse of special bail : If^ 1 

* Baron had stiguiatiseed this process I 
' with the seemingly harah, but riclil; 

* tenns aliovc mentioned, as sir ' 
' Bridgeman, Chief Justice of the < 

* Fleas did, when the Latitat was fi 
' duced into the King's Bench, he w< 
' haps have done no more than an hone 
' nation, at the innovation, would n 

(Hist, of Com. Pleas, 3d. ed. p. 183.] 
discretion, I am for investing the JuiJ 
as little as possible. We know, th 
men view matters m a different li|j 
tluit in which they are seen by otliers 

* discretion of the Judge,' (says Mi 
very truly) < is the first engine of t 
*' the hiws of a free people dioukl fbi 
' determine every (|uestion that may 
' arise in the exercise of power and t] 

* actions of industrr.'. (Uediue aad! 

r. a-p. 1U.)" 
To this I will add tile memoraU 

Mid fagr kidCaiiMiMi ia 



17] STATE TRIALS, 32 Charles II. iGSO^^Pritikge of ParliamenL [58 



riiin(^ cooTLs of justice a power to vinclicate 
Hkv uwh ditfnitVt than any other chapter in 
ibiartof nriainenL 
** The power which the courts in We8t- 
Hall have of vindicating their own au- 
^ , ii coeval with their finit foundation and 
kioD ; it is a necessary incident to every 
of iaslice, whether ot record or not, to 
iad nnprison for a contempt to the court, 
the face of it, 1 Vent. 1, and the issuing* 
4 tftochinenLs by the supreme courts of jiis- 
ia H estniinst'er Hail, for contempts out of 
upon tlie same iinmemonHl usage 



aftMMOits the whole fabric of the common 
kw ; a is as much the ** Lex Teme," and 
axUs the exce^itiun of Magna Charta, as the 
any oth^ lt*gal process whatever.* 



rfHindson aiid Kersey, in the Court of 
C— wo Pious, when*hc was Chief Jus- 
tt» f4 that CouTi ; *• Tlie discretion of 
' ft Jiidl^e is the law of t^Tants : It is al- 

* «w% loknown : It is different in different 

* OKfl : It Y^ casual, aud dcjiends upon constitu- 
' riua« ftiuptT, passion. — In the btst it is ofb^n- 
*tmit% raprioe : In the worst it is ciery vice, 
*fidk. ndpasaionf to which human nature is 

Jfr. Bmie in his *• Thoughts on tlie present 
SToea so far as to assert that ** All 
3 of an uncontrouled discretionary 
kilinii. to aggrandizement and profit of 
ibdr •«■ body have a]wa3'8 abused it." 

* Lwd Cilice, commenting upon the words, 
^ Uy Teine," in Magna Cliarta, says : 

*' Aspinst this antient and fundamental law, 

wt inihe &ce thereof, I find an act (4* parlia- 

HMtU H. 7, c. S.] made, that as well jus- 

liBeifl Mat* as justices of peace (without 

MT Miof or presentment by the vei-dict of 

Mit am) upon a bare information for the 

Asf kibre them mafle, should have full 

IMw sad authority by their discretions to 

■vaad dctennine all onences, and contempts 

or done by any person, or ]iersons 

the form, ordinance, and effect of* any 

nadc, and not reuealed, ^cc. By colour 

act, shaking tiiis fundamental law, it 

■ am rrtilible what horrible oppressions and 

iMdisBa, to the undoing of infinite numliers 

if pea^, were committed by sir KiclianI 

knight, and Edmund Dudley, being 

of peace, throughout England; and 

this unjust and injurious act (as common- 

If ia like cases it lalleth out) a new ofiicc was 

and they made masters of the king*s 




: at the Parliament, holden in the first 

H. 8, this act of 11 H. 7, is recited, 

void, and icpeuled, and the reason 

Tielded, fur that by fon*c of the saiil 

ftvna'maaifestl}' known, that many sinis- 

. aad crafty^ feigned, and forged informa- 

^ kid been pursued against mvers of the 

^ aabyecta, to their great damage and 

vM vexation : and.tM Ul Buocess hereof, 

wfaaU Mdi vf th«ife two oppreMQfs, 

9 



" I have examined very carefully to see if 
I could find out any vestiges or traces of its in- 
troduction, but can find none ; it is as ancient 
as any other part of tlie Common Law; there 

should deter others from committing the like, 
and should admonish Parliaments, that instead 
of this ordinary and precious trial, per legem 
Ui rtf', they bring not ui absolute, and partial 
trials by discretion." 3 Inst. 61. 

In commenting on the Statute of Marlebridge, 
62 H. 3, lord Coke says : 

^* The preamble shews the mischiefs, which 
were four. 

" 1. That in the time of the kite troubles, 
great men and others refused to be justified by 
tli(! kin^ and his court,. as they ought, for here 
it is said, * multi magnates et aLi indignati 
' fuerint reciperc justitiam per dominum regem, 

* et curiam suaia.' 

*' 2. ' 8ed graves ultiones fecerint,' That 
they (refusing the course of the king's laws) 
took upon them to be t|ieir own judges in their 
own causes, and to take such revenges as they 
thought fit, until they had ransoms at their 
pleasures. * Aliquis non debet c«sc judex in 
*' sua propria causa.' 

*^ 3. I'hat some of them would not be justi- 
fied by the king's offi(x;rs." 

''Ihe IxKlyof the act consisteth of divera 
brant^hes. 

*' First, a remedy in general for all the said 
mischielk. 

'* (1). * Provisum est, concordat um, et con- 
*• cessum, qiuid tain majores nuam minores* 

* justitiam habcant et recipiant in curia domini 
^ regis.'] This is the golden metewand, that 
the law hath appoint»l to measure the cases of 
all and siiigidar persons, high and low, to hav» 
and rec-eive justice* in the king's courts ; for 
the king liath distributed his judicial |Kiwer to 
several courts of justice, and cfMirts of justice 
ought to determine all causes, and that all pri- 
vate revenges be avoidt*fl. 

^* Upon this gcuei-al law, four conclusions do 
follow. 

*M. That all men, high and low, must be 
justified, that is, have and receive justice in tho 
king's courts of justice. 

'' *i. That no private n'venge l>e taken, nor 
any man b}' his uwn arm or |>ower revenge 
himself: and this aiticle is gr<Mmded U[M)n tlifr 
law of God, « viiidic*ta est inilii et ego retri- 
^ buam,' saitli Alnu:j>hty God. All revenge 
must come from G(mI, or from hLs lieutenant 
the king, in some of his courts of justice. 

*^ 3. That all the subjects of the realm ought 
to be justilie<l, tlmt is, submit themselves to the 
king's officf-i-s of justice according to law." 

See also Mr. Helden's Argument for sir Ed - 
nmnd Hampden, anie^ vol. 3, p. 16, et ieq* 
See, too, pi). 7(), ]2a, 16^, 16.S, 164, and the 
4tli and 6tn clauses of the Petition of Kight, 
pp. 292, 2'^S, of the same vohime ; and a pa»> 
sage firoiii Uogcr North, inserted in a Note tw 
the CaM of 1: iteharris, a. o* 1(^ i, in/ra. 



B9] STATE TRIALS, S^Cnknms II. l6so,^Praceeiingiagmiui ILTkcmpi 



it no priority or |K)steriority to be discoTered 
■about it, and therefore cannot be said to in?ade 
the common law, but to act in alliance and 
triendly conjunction with every otlier provision 
which the wisdom of our ani'estors has estab- 
lished for tlie general {^tood of soc'iety. And 
thou^ I do not mean to compare and contrast 
attachments with trials by jury, vet truth com- 
pels me to say, that tlic mode in proceeding by 
attachment stands upon the very same foimda- 
tion and basis as trials by jury (to, immemorial 
nsa^c and practice ; it is a' constitutional re- 
medy in |>artioular cases ; and the jud^ifes in 
those cases are as much bound to give an 
activity to this part of the law, as to any other 
part of it. Indeed it is admitted, that attach- 
ments are Tcry properly granted for resistance 
of process, or a contumelious treatment of it, 
or any violence or abuse of the ministers or 
others employed to execute it. But it is said 
that the courts of justice in those cases is oh- 
■tructcd, and the obstruction must be instantly 
removed ; that there is no such necessity in the 
case of libels upon courts or judges,* which 
may wait for the ordinary miethod of presecu- 
tion, without any inconvenience whatsoever. 
But where the nature of the offence of libel- 
ling .judges for what they do in their judicial 
capacities, either in court or out of court, comes 
to be considered, it dot^, in my opinion, be- 
come more proper ibr an attachment than any 
ether case whatsoever. 

*' By our constitution, the king is the Rmn- 
tain of every specit^ of justice whidi is ad- 
ministered in this kinsfdom, 19 CV). 5t5. The 
kiopis ' de jure' to distribute justicre to nli his 
•ubfects; and because he cannot do it himself 
to all persons, he delegates his power to his 
judges, who have the custody and guanl of the 
king's oath, and sit in the scat of the king 
* concerning his justice.' 

** The arraignment of the justice of the 
judges is arraigning the king's justice ; it is an 
impeachment of his wisdom and goodness in 
the choice of his judges, and excites in the 
mind of the people a general dissatisfaction 
fvith all judicial atiterminations, and indisposes 
their minds to ol»ey tliAii ; and whenever mens 
allegiance to the laws is so fundamentally 
shaken, it is the most fatal and tlie most dan- 
gerous obstruction of justice, and, in my Ofu- 
nion, calls out for a more rapiil and immediate 
ledress than any other obstruction whatsoever ; 
not for the sake of the judges, as private indi- 
▼iduids, but because they are the channels by 
which the king's justice is conveyed to the 
people. To be impartial, and to be universally 
thought so, arc both absolutely necessary for 
the giving justice that free, ujien andf un- 
intemipted current, which it has for many 
ages round all over this kin^lom, and which so 
eminently distinguislies and exalts it above all 
mttim* upon the earth. 

** In the moral cstimatioa of the offence, and 
In grery public consequence arising from it, 
iriMt an infinite disproportion is there between 
gpnlriiy iMMfitiimftlioua words of the rulee <tf 



I the court, for which attachments arc 
constantly, and coolly and delibawlely 
the most vhiilent and malignant sonndi 
fancy could suggest upon the judge 
selves. It seems to be material to fix ( 
of the words *' autliority" and ^* coni 
tlie court," to speak with precision u 
question. 

'' Tlie trial by jury i»one part of t' 
tem, the punishing contempts of the c 
attachments is another : we must not c 
the modes of proceeding, and try cc 
by juries, and murders by attacbmi 
must give that energy to each which t 
stitutiun prcjicribcs. In many cases, 
not see the correspondence and def 
which one part of the system has ami 
another ;. but vre must \wy that defe 
the wisd(nn of many ages as to pres 
And I arn sure it wants no great intuitio 
that trials by juries will be buried in t1 
gmvc with the authority of the courts 

to iireside over them. * ' 

i' 

Trinity Tei-m, 8 Geo. 3. 

Writs of attachment were granted 
Staples Stcare, John Williams, and Joh 
dm, for contompt, in publishing the Nc 
ton Extraordinary, No. 4, containing 
atlilressed to lord' Mansfield, Lord Cni 
tice, containing gross reflections on his 1 

They were all examined upon interru] 
and reiiorted in contcm]it. 

And Michas. Term. 9 Geo. 3. Ste 
sentenced to be imprisoned three • 
months. 

\Endff the Reports of the j 
Commons^ 1810, in the Cai 
Francis Burdett.] 

Mr. Wynn in his learned ' Argument' 
cdotlicr authorities in support ot the unc 
ed power of the House of Commons, to < 
There are also thi«c Reports of l^rece( 
nunishment for contempt in the Jouma 
House of Lords, viz. 

Dec. 19, 1699. 

Ordered, That tlie committee appoi 
inspect the Journals of this House, m 
to tlie punishing of persons, whose bi 
writings have been censured by this He 
scandalous libels) be revived ; to mc 
sently. Then the House was adjoiunei 
pleasure. The House was resumed. 

And the marquis of Normanby report 
the said committee the precedents foil 

March Q3, 1623, Thomas Moriey. 

March Ci2, 1623, Waterhoase. 

July 9,1625, llalph Brooke. 

April 16, 16^8, Anthony Lamplugb. 

March 29, 16*2, John Bond. 

July 9, 1663, Fitton. 

March 8, 1689, Uowning. 

November 18, 1693, PoUard. 

I>eccniber 18, laar. 



n] STATE TRIALS, 32 Charges II. \6S0.^Prmlege of Parliament. (St 



November ?5, 1734. 

The Imrd Delawar acquainted the House 
^^Tte the lords committees appointed to 
Miidi precedents, as to what punishments 
hue been inflicted, or methods taken to vindi- 
rafe tiie honour of this House, in cases of any 
kttA of tbeir lordships pri^ileg^, or con- 
tiiBpIs to this House, had inspected precedents 
anmo^y ; and had prepared a Report ; 
which he u-as ready to mAe, when their lord- 
ibips will please to receive the same/' 

OrAeiedt That the said Rep<»rt be now re- 
onvcd. 

.locpidiogiy liis lordship reported from the 
Ofd cwwiKttee, as follow » : 

*^Tbat the committee have inspected the 
Jounalsofthis House, in relation to tlie mat- 
icn tn them referred ; and think proper to 
flier to your lordships consideration the tullow- 
1^; ibMances ; >iz. 

""Ffhruarv 27, 16W. Richard Re^-nolds 
aad Rsbert \Vright, for arresting a servant to 
(he eari of Oxford, were ordered to be set on 
hmehack, near Westminsler Hall ; neither of 
than to have cloak or bat ; but to ha%'e on 
their hreasts and backs papers, expressing tlieir 
M; (viz.), * £For a contemptuous breach of 
'tbepmil^res of parliamt:nt, activated by 
'cmtemptoous speeches ;*] and so to p&ss to 
the Fleet, wher^ they are to be left prisoners. 
" Nor. 37, 1621. John Blunt, for countcr- 
fieitiaf the lord StrafTord^s seal to a protection, 
sasorderedto stand on the pillory, at West- 
niuter and in Cheapside, with papers on his 
head shewiiv his offence; and then to be 
wied toBridewelU and there to remain during 
hbUfe, acd tn work for his living. 

**Marth««, 1693. TTIiomas Morley, for 

pohfafaiBg a printed petition, very scamlalous 

a^inst the lord keeper in particular, and by 

Mpenion against the whole court of 8tar- 

f^fntber in ^;eneral, and at the bar insolently 

^aag many msolent words of the lord-keeper, 

jb pKKnce of their lordships, was imprisoned 

a the Fleet, fined 1,000/. to the king; set 

vitb his neck in the pillory in Cheapside, with 

tteof the {ictitions on his head ; ordered to 

uke submissiony and acknow ledgment of his 

ftuh, at the bar and in the Star-chamber. The 

■est day one Waterhouse, who penned the finst 

taig^ of Morley 's petition, wasaiijudged to 

W a prisoner in the Fleet, and debarred |ion, 

■k, and paper» durin)/ the pleasure of the 

Hock ; fined 500/. to the king ; to make snb- 

■haon, and acknowledgment ot*this his fault, 

ttthe bar, in the Star-chamber, and to the lord- 

kttper: and Bernard Alsop, the printer of the 

fcidion, imprisoned in the Fleet, admonished 

•otto print any more petitions ; and to make 

wbnussioh and acknowledgment. 

'* May 28, 1C94. Upon a report from the 
committee of privileges, the fine on Moriey 
*tt reduced to 500/. and he was diMrliargcd 
M of prison; au«l Waterhouse's punislmt;;iil, 
iH>M his petition, was remitted. 
""July 9, 1695. IU4ph Bwke, Yorke 



Herald, for exhibiting a false and scandalous 
petition against the earl Marshal, was sen- 
tenced to make his submission to the said carl 
Marslial at the bar, to be imprisoned in the 
Tower during pleasure, and Hned 1,000 marks. 
*• April 4, 1626. George Ganlner, for buy- 
ing and selling of coimteHeited protections 
under the hand and seal of a peer in parlia- 
ment, was ordered to be set on the pillory at 
Wesitminster, with a paper on his head, declar- 
ing his otfence ; and afterwards to be carried 
down to Norwi4'h, and there to stand on the 
pillory, with the like paper. 

" ISth June following, The same Ganlner, for 
scandalizing the justic^e of this House, and for 
unjustly slandering the lord keeper, was or- 
dered to stand in the piUory at Westminster, 
wi:h a paper on his head, declaring his offence; 
and to ride backward with the siuue na{)er to 
the cross in Cheaptiiide, and to stanci on the 
pillory- there, and so to ride hack to the Fleet : 
and though the lord keeper did earnestly dcsiro 
this puntshment might be forgiven Gardner, 
yet the House deuied it. 

'* April 16, 16-28. Anthony liamplugh, for 
exhibiting an unjust and scandalous petition 
afpiinst ttie lord keeiier and lord bishop of 
Lmcohi, was sentenced to stand committed to 
the Fleet ; to a^jknowletlge here, at tiic bar, 
' That the said petition is unjust and scandalous, 
* and that he is sorry for it ;' and to ask tlieir 
lordships forgiveness ; and to be brought to tlie 
chancery bar, and there to make the like ac- 
knowledgment. 

*' l^lie next day, he having asked forgive- 
ness at the bar, the remainder of the censure 
was forgiven. 

*'June 12, 1678. Kusign Reynde, for ig- 
nominious speeches uttere<l by him against the 
lord discount Hay and St*ale, and for his con- 
tempt of this high court of I'ar'ianient, was 
adjudged ne^er to beai- anus hereatier, but ac- 
counted unworthy to t>e a soldier ; to be impri- 
soned during pleasure ; to stand under the pil- 
lory, mth pa|)ers on his head shewing his 'of- 
fence, at Cheapside, and at Banbury ; to b6 
fined at 200/. to tlie king ; and to ask lorgive- 



ness. 



'* And as to tlie precedent last mentioned, 
the committee thuik proper to observe to the 
House, That it apjiears ny the Journal, that 
their loixlships utmost eudc^avours were used^ 
to apprehend and bring the said Reynde in 
pei-son. More them, to justice ; but h^ ab- 
Kcomletl, so that he could not be taken ; not- 
withstanding which, the House, in his absence, 
proi'eided to the censure above-mentioned ; 
and directed the court cd' Star-'Chamber, to put 
the si>ntence against him in execution, if bfe 
should happen to be apprehended after th^ 
ending of the session, and out of time of Par« 
lianient. 

'^ Jan. 13, 1640. James Faucet, for inao* 
lent and abusive speeches againit the earl of 
Newport, was sentenced to stand committed to 
tlie Fleet ; to make his humble submission to the 
said eari, and to pay him SOOL for damages. 



fS] STATE TRIALSb 32 Chakles II. l6SO.—Pr§eadmgi if «Mff A. TIUfl^MMi : [( 



** Much 29tfa, 1642, pott mgndim. John | 
Bond, fbr bein^ the author ind contriver of a 
friae and Kandilous k?ttcr, precmdad to he MOt 
from the queen in Holland to his majesty at | 
York, was sentenced to stand on the pillor^- at ' 
WeatnuDster Hall door, and in Cheapiide, with 
a paper on his head, written, ' A Contriver of 
* Fake and Scandalous Libels;' the said letteni 
to be called in, and burnt near him as he stands ; 
and he to be committed to the house of correc- 
tion. 

«' April S8, 1C42. 8ir William 8an Ravy, 
knight, for false, scandalous and malicious re- 
ports and speeches a^inst the carl of Danby, 
was fined, to the king, in the sum of 100/1 ; 
ordered to pay the said earl, by way of damages, 
SlQOL ; to make a submission at the bar, and to 
he imprisoned in the Fleet. 

** July 9, 1663. Alexamler Fitton, for con- 
triring and publishing an infamous libel agahist 
the k!rd Gerrard of Brandon, fined 500/. to his 
maiesty, committed to tlie King's Bench, and 
to find sureties for his iKjhaviour during life. 

'' December 18, 1667. William Carr, for 
dispersing scandalous and seditious printed 
uapen against the lord Gemurd of Brandon, 
fined 1,000/. to the king, to stand thrice in the 
pillory, to be imprisoned in the Fleet, and the 
papers to be burnt. 

"March 1, 1676. Dr. Gary was fineil 
1,000/. for refusing to discover Kis knoulefls^e 
of a libel ; and to lie committed to the Tower 
tiU lie pays the same. 

«< March 8, 1688-9. William Downing, for 
nrinting a paper reflecting on the lonl Grey of 
fVarke, was committed to the Gatehouse, and 
fined 1,000/. to the king. 

** June 11, 1689. Percy's |>ctition, claim- 
ing the earldom of Northuinlierland, containing 
several reflections, was dismissed the House ; 
and the said Percy was ordered to be brought 
before the four courts in Westminster Hall, 
wearing a |)aper upon his breast, in which 
these wonis shall be written, *■ The False and 

* Impudent Pretender to the Earldom of Nor- 
' thunilierland.' 

''April 11, 1690. Thomas Garston, for 
counterfeiting protections, to stand twice: iu the 
pillory, an<l lie committed to tlic Gatehouse till 
ke |Ni\'8 his fees. 

" Feb. 23, 1695. The House was informed, 
That there was a iia|)er dulivei-uil at the door, 
reflecting on the House, by llobert Crosfielfl:" 
WhdkieuiNm he was cidkMl in, and owned the 
paper ; but, refusing to give the liouse an ac- 
count who printed it, he was ordered into cus- 
tody. 

" March 17, 1697. A liM, intituled, * Mr. 

* JWrtie^M Casi^ ^<*- ^th some Heniarks on 
' the Judgment given therein,* was voted false, 
inalicirnM anil scandaloiui, and onlered to be 
burnt ; and a conuuiltee was ap|Niinted to con- 
«der of tlic said paper. 

^ March 18, 1697. Report was made from 
Iki eonmiitteo. That the printer had confessed 
dttl Mr. Robert Uertk*, a member of the House 
of CSMMBOaa* had em|doycd him la print it. 



" 26th of the same month. Co niridcn th 
was had of the said paper ; and the eari < 
Abingdon, in his plaoe, declared, That he dl 
in t£e name of his son, ask pardon of tl 
House and the Lord Chancellor ; whidi tl 
House accepted. 

" May 7, 17 16. James Mynde, a aoBcilB 
was ordered into custody, tor puttiiig conntd 
names to an appeal witliout their koowledn. 

'* 19th of same May, Mynde was broo^i 
the bar, and, by a petition, confessed hoM 
guiltA' ; and a committee was appointed, t» ii 
spect precedents of punishments mflicted. 

** 18th of that month, report was made fi« 
that committee ; and M^iule fined lOU/. to tl 
king. 

"June 4, 1716. He petitions to be di 
charged out of custody ; and his petitkm wi 
rejected. 

" 12th of the tame month. He was ordoi 
to cause his fine to be paid into the cU 
hands, in order to be e<Area2d into the E 
chequer, for the regubr payment of the an 

" 1 4th of the same montti. The Henn I 
ing informed. That the derk had receifed i 
said fine ; Mynde was ordered to be hnnuhl 
the bar, to be' discharged ; and the nextwj! 
was brought, reprimanded, and discharged i 
cordiiigly, (paymg his fees)." 

March 3, 1764. 

The earl of Marcfamont reported fron 1 
Lords' committees appointed to seareh pni 
dents, as to what punishments have been I 
dieted, or methods taken to vindicate the 1 
nourof this HoiiKe, iu cases of any hreadi 
their lordships' privilege, or contempts to 1 
House : 

'* That the committee have taken into ooa 
deration the matter to them referred, and hi 
inspected the Jonnials in relation thereto; I 
find that a long report was made from a eoi 
mittee, to this House, the 95tli of Noremh 
1724, of precedents of puntshmcnts inflicted, 
methods taken to vindKate the honoiur off 1 
HoiLse,- in canes of breaches of privilege or o 
tempts ; which report being entered in t 
Journal, the committee think it unnece^aw]! 
do more tlian to reliT thereto. But they thi 
it their duty to offer to .the consideration of I 
House the folloMing instances, which hi 
occurred since the making of tlie said repwl 

" Feb. 4, 1724. Matthias Cater, fat ■ 
curing and selling protections of the em 
Huflbik, and for an unlawful combinatioa 
chaige certain [lersous falsely, was fined 
noUes, onlered to be cfimuuhed to Newg 
for three months, niid until he pay the i 
fine ; and to be put tw ice in the piUory , (hr 1 
space of an hour each time, with a paper o 
his head, signifying his offVnces. 

•'April 21, 1725. Thomas Tooke an 
tomey, for a breach of the earl of M tra ( Ri i 
inriviiege, was ordere<l into the custody of i 
gentleman usher of tlie black hnI. 

•• Feb. 22, 1795. Upon ^ repreaentil 
of the black rod agoinat TW« and ethen, i 



STATE TRIALS^ 32 Charles II. iffSO-^PHviligv of ParBdmint. [66 



imo eulody for breaches of pri- 
i Ihej were all ordered again into cot- 

B. tU 17S6, July 4, 17127. The said 
i, not hariiq^ madle hb submission, nor 
as fees, was again ordered into custody, 
by SS, 1728. The yeoman usher and 
r the doorkeepers, being examined oon- 
m the briHLTionr of the said Tooke when 
^iBciHCody, the House adjudged that 
id Tooke should pay a fine of 600/. to 
Mr, for breach of privilege and contempt 
tfisose : And the sherittii of Loudon and 
leKi were ordered to take him, and keep 
a Newgate till he should pay the said fine, 
k/ccs and charges to the usher of the black 
wi ether otficers of this House, 
cb. 19, 1754. David Home, for forging 
Hmg protections in the name of the ean 
canUiaoe and earl of Crawfurd, was or- 
is be committed to Newgate for one year, 
» be put twice in the pilk>ry tor the space 
bbareach time, wim a paper oyer his 
i^pifying his offence. 
Immer IG, 1756. George King, for 
ai 1 1 ui il in printing and publismng a 
■i md forged printMl paper, disponed 
stfdy sold aa nis majesty^s speech to 
Vaoses of PaHian^nt, was tined 50/. and 
ibed to Newflfate for six months, and 
le nay the said fine : 
fra 1, 1757. Upon his petition, express- 
is abhorrence of ni» crime, and sorrow for 
■c, and hombly imploring forgiveness 
■rey, he was ordered to be brought to 




^^4, 1757. He was brought to the 
■wnTingly ; where he, on his knees, re- 
t$ a ic^niand fi?om the Speaker, his 
wa mutted ; and he was ordered to be 
■qpdaot of Newgate, paying his fees.^' 

mr CONCERNING PRIVILEGE. 

the SOtfa of April, 1771, a Committee 
Bmmt of Commons which had been ** ap- 
d la examine into the several tacts and 
relative to the late obstructions to 
of the orders of the House,'' made 
It in which, after having stated the evi- 
•T Ae facts and circumstances rdative to 
ahatimtiiips, they stated that they hail 
lied 10 Ae other part of what was given 
in cbaige; namdy, *^ to consider what 
bar proceeding may be reqniHite to eu- 
• ft doe obtdienee to tho orders of tlie 
■i;** and, in order to form their Judg- 
■|n Ibat matter, thov have made a dili- 
bMick in the Journals, to see what the 
Kpi of die House have been on similar 
■k; or, if no cases strictly analogous 
■•scar, mt least to deduce, troni the g^ 
of the House, such principles of 
Ivy law as might be ajiplicable to 
it natter referred to their consider- 



the Committee beg leave to 
teii'appeafs to them that thia House 



has, ih>m the earliest times, asserted and ei^er- 
cised the power and authority of summonhig' 
before them any commoner, and of compelling 
his attendance; — and that this power and au- 
thority has ever extended as wdi to the city of 
Loudon, without exertion on account of 
charters from Ae crown, or any pretence df 
separate jurisdiction (instances of which appear 
in the cases (l)referred to in the margin) as to 
every other part of the realm. 

And that the House have ever considered 
every branch of the civil authority of this go- 
vernment as bound (when require") to be aidSng 
and assisting to cairy into execution the war- 
rants and o^ers of this House. 

In order to la^ before the House the residt 
of their enquiry with tolerable brevity, and some 
degree of method, the Committee have rcdnced 
under three ^peneral heads the obstnictions which 
have been given at different times to the oitlers 
of the House, and under each of these heads 
have ranged the different modes in which these 
breaches of privileges and contempts have been 
offered ; and then submit to the consideration 
of the House the several metho<ls of |nt>ceeding 
which the House hath opposed to these Offences, 
the proofs of which proceeding appear by cases 
referred to in the margin of this Report. 

The three general Heads of breadi^ of pri^ 
vilege and contempts of this House are, namely, 
those arising from, First, Evasion. Secondly, 
Force. Thudly, Cok>ur of Law. 

Offences under the First and Hecond of these 
heads have been committed — by the absconding 
of theparties summoned — by open resistance to 
the officers of the House-^and by riots and tu- 
mults — by the refusal of civil officers to assist 
the Serjeants or messengers of this House, or to 
release persons entitled to the privilege of this 
House when detained in their custody. 

1 1 appears also to your Committee, as well firom 
searching the Journals of this House, as firom 
«>ther auuientic evidence, that, in order to re- 
medy the abuses, and to remove the obstructions 
above recited, this House has proceeded to' sup- 
port their privileges, and to enforce the execu- 

(1) Ferrers' Case, in Crompton, fo. 9 ^ 10.— 
Stanman, 6E. 6. 1st vol. p. 18.— Boswell, |S 
and 3 P. and M. 1555.— Nov. 30, 1st vol. p. 
44.— Corbet, 5 and 6 P. and M. 1557, Nov. 10, 
1st vol. p. 51.— Six Servants of Sir H. Jones, 
10 Feb. l.-ibS, Isl vol. p. 65.— Win. Jones, 29 
Oct. 8 Eliz. 156<j, 1st vol. n. 75.— Sir J. Shiriey, 
March 22, 1608, 1st vol. p. 169.— Steriing, 
1666, vol. viii. p. 335.-4 June 1675, vol. ix. 

f». 354, ** 'Tis not against the King's dignity 
or the House of Commons to punish, bv ini- 
iinsonnient, a commoner that is guilty of vio- 
lating their privilege, that being accordmg to 
the known laws and custom of (mrliament, and 
the right of their privilc^gres, declared by the 
king's royal Predeceusors in Ibrmer pariia- 
ments, and by himself in this." — 1 April 1697, 
vol. xi. p. 765, John Salusbury. — 5 Jan. 1703, 
vol. xiv. p. 269, Tutehin, How, and Brag. — tZ 
May 1721, vol. zisL p. 562| Mist 



^<ionortkeirmrden,Vjthelbllawiiig mediods; 
oamelv, 

I. By rnddnmuof the crawn to iwiie prodt- 
imtioni ibr appranendiittr those persons whe 
thiM stood ID contempt of the House (2). 

U. By reDCfwinijr their orders against soch 
' persons, and comniitting them in a subsequent 
session fifpartiament (3). 

II I . By orders to mayors, bailiffs, and sheriffs, 
to assist the Seijeant or messenger for the ap- 
prehending of such penons; or to the Serjeant 
of this House, to call on the riierifis of Mid- 
dlesex, and the sheriffii of other counties, and 
all other magistntes and persons, for their as- 
natanoe (4). 

IV. By committing, for breach of pririlege 
of this House, those officers of the peM% who 
haTc refused their assistance to the Serjeant of ' 
this House when so called on (6). 

V. By imprisoning those who reftised to re- 
lease persons entitled to the privilege of this 
House, and by increasing the sererity of their 
restraint according to the nature of tlie offence, 
and in consequence of the contumacy of the of- 
fender (6). 

With regard to the third head, namelj^, 
. breaches m privilege, and contempts of tlus 

(9) Sir Giles Mompesson, S8 Feb. and 3 
March 1620, vol. i. p. 537.— Windebank, Dec. 
10, 1640, vol. ii. p. 18.— Sir Basil Brook, April 
f 4, 1641, vol. ii. p. 127. — Sir John Llovd, &c. 
Jan. 8, 1680, vol. ix, p. 702.— Brent, Feb. 22, 

1688, vol. X. p. 33.— ^r Adam Blair, June 16, 

1689, vol. X. p. 182— SCandish, March 12, 1694, 
vol. xi. p. 966, — Mckenzie, vol. xi. p. 416. — 
Grascomb, Nov. 30, 1696, vol.xi. p. 602.— So- 
ranzie, April 11, 1700, vol. xiii. p. S?l.— Jef- 
freys, Addy, and Clifton, 3Iarch 2.*) and 26, 

1701, vol. xiii. p. 427, 436, 437.— Colepeper 

and otbent, Marcli 28, April 2, 1702, vol. xiii. 

p. 826.— Tutching, &c. Printers, Feb. 14, 1703, 

vol. xiT. p. 336.— KioterK, in Sache«erors case, 

March 2d, 4th, and 6th, 1709, vol. x\l p. 343, 

346.— Rebels, 4 and 6 Feb. 1715, u»l. xnii. p. 

368.— Wilkinson, June and 4 July 1791, ^ol. 

xix. p. 585.— Lc-veriand, 6 March 1746, vol. 

XXV. p. 313.— A. Murray, 26 Nov. 1751, vol. 

xxu. p. 309.— Reynolds, 11, 12, 15, 16, and 

18th tcb. 1768,vol.xxxi.p. 603, 606,610,612, 
618. . , , «, 

(3) Harvey and Martin, 22 April 1713, 17th 
vol. p. 298.— InrfefieW, 29 Jan. 1725, 20th 
▼ol. p. 549.— Phillipsand Barnes, 22 Jan. 1733, 
22d vol. p. 210.— A. Murray, as above. 

(4) Itatcliff; 14 Nov. 1640, vol. ii. p. 29.— 
Sir lsa»il Brook, Jan. 11. and 25, 1641, vol. ii. 
P-.^^V"^***" *"^ Tliompson, 21 Dec. 1660, 
vol. vih. p. 222. -Dudley, 24 Jan. 1670, ^ol. 
IX. p. 193.— Topham, 4 June 1675, P. M. vol. 
IX. p. 353. 

^ (5) Hastings and Crook, 19 May 1675, vol. 
IX. p. 341.— Topham, as above.— BMhe, 7 
April 1679, vol. ix. p. 587.— Owen, 28 March 

1702, vol. xiii. p. 826. 
(6) Ferrers.— Sir T. Shirley and 



House, onderoohNiraiid pRteneeoflaw ; 
pan to your Committee, that the aune 
been attempted, hy discl|ai^g;iii^ out of cc 
penons who have been committed by or 
the House: 

By impleading, in the courts of justice 
sons intitlrd to die privilege of tlus Hoc 
the cases there brought in question. 

By prosecutions, before the said eomi 
work or actions spoken or done under tb 
tection of this House. 

By accusations, tcndiuj^ to caD in ipM 
before the said courts, ivords or actions so s 
or done, under fahe or pretended denomin 
of offences, not entitled lo the privilege c 
House. 

It appeare also to your Committee, in ai 
ing the Journals, that in the above redti 
stances this House has proceeded, 

1st, By takiiiir again into custody n 
discharged without order of the House (7 

^dly, By directing Mr. Speaker to 
letters to the justices of assize, and other ji 
to stay proceedings (8). 

3dly, By resolutions of this House, Th 
suits and actions commenced and carried 
these cases should be discontinued and am 
ami should be deemed violations of the 
leges of this House (P). 

(7) Pemberton and othera, 2 June 167. 
ix. p.351. Duncomb, March 22, 1691 
xii. p. 174 ; when the House Resolved, 
no |ierson committed by this House, csmd, i 
the same session, be dLscharged by any 
authority whatsoever. Charles Dun 
ha% ing been romuiitte<l by order of this 1 
and aifterwards discharged hy the order 
House of Lnrds, without the consent o 
House ; it was Ke.solvcd, That thesaid C 
Duncombe he taken into the custody < 
Serjeant at arms aticnfUngf this House. 

(8) Strickland, 19 March 1605, vol. 
287.— Potts, 2 Feb. 1606, vol. i. p. 351.- 
rison, 26 and 27 Feb. 1606, for stay of Tk 
in other like cases has been usual, vol. i. p 
343. Sir R. Gargrave, ISir W. King 
eodem die ei loco. Bond, Feb. 28, 1606, 
p. 345. Hyam, 5 Maroh 1606, vol. i. p. S 
Powlett, 5 May 1607, vol, i. p. 369. Bi 
ham, 13 May 1607, vol. i. p» 373. Bow 
May 1607, vol. i. p. 375. Johnson, 10 
1607, vol. i. p. 38 1 . Stone, 20 June 16a 
i. p. 386. Pelliam, 2 May 1610, vol. i. p 
—Sanders, 18 and 21 May 1610, vol. i. |i 
— ** Geneni motion about letten to be n 
to the justices of assize, referred to the' 
mittee of privileges, report this Resoli 
Res(»lvcd, That the former course of writii 
ters to the justices of assize, according tl 
cedents ; and, if required, a warratit ibr I 
tionto the party." 3 March 1620* ral 
537. Lord Bulkley, 28 April 1691, vol 
537. 

(9) Sir Robert Howard, 17 Feb. 1625, 
p. 820.— Sir WUUam Wflliama, 7 Feh. 
voL z. p. 21» 146» and 216.— HoUii and^ 



STATE TRIALS. 32 Cu a rlss II. 1 6S0.^PH9ilege ef Parliamtni. [70r 

Serjeant to repair to the Compter ih Bread* 
street, whither the said Ferrers was carried*, 
and there to demand the deliveir ot* the pri- 
soner. The Serjeant went to tlie Compter, and 
declared to the clerks there, what he Iiad in - 
commandment ; but the clerks and other offi- 
cers of the city, after many high words, Ibrcibly 
resisted the serjcant. Whereupon ensued a 
tray, in which the Serjeant's man was knocked 
down, and the serjcant was driven to detend 
himself with his mace of aitns. During this 
frav, the sheriffs of London, called Rowland 
Hill and H. Suckley, came thither, to whom 
the Serjeant €M>mplained of this injury, and re« 
ouired of them the delivery of the prisoner ; but 
they took part with their officers, and gave no 
attention to his complaint, and contemptuously 
reiused to deliver the prisoner. The serjeant 
returned to the House, and nude his report of 
the above transaction ; who thereupon would 
•sit no longer without their burgess, but rose and 
repaired to the upper House, where the whole 
case was declared by the mouth of theSi)eaker, 
before the lord chancellor, and all tlie lords and 
judges there assembled, who, judging the con-* 
tempt to be very great, referred the pumshment 
thereof to the order of the House of Commons ; 
who, being returned to their House, ordf*red- 
the Serjeant to repair immediately to the sheriffs 
of London, and to require the delivery of the 
prisoner, without any writ or warrant, though 
the lonl chancellor offered to grant a wnt, 
which the House of Cwnioons refused, being^ 
cleaHy of opinion, that all commands, and other 
acts proceeding from their House, were to be 
(lone and executed by their serjeant, without 
writ, oidy bv shew ot his mace,- which was hie-' 
warrant. — I'he sheriffs, upon this second de-* 
maud, delivered the prisoner; but the serjeant. 
in pursuance of his orders, charged the said 
sheriffs to appear before the House the follow- 
ing <lay, by eight of the clock in tlic morning, 
and to bring tiuther the clerks of the Compter^ 
and such other of thdr otficers as were parties 
to the fray. — The serjeant had also orders to 
take into custody the said White, who had pro* 
cured the said arrest, in contempt of the privi- 
lege of parliament. The sherins, on the next 
day, with one of tlie clerks of the Compter, who 
was the chief occasion of the fray, together with 
the said White, app«»red before the House; 
where the Speaker charging them yviUtt their 
contempt andmbdemeaiiur aforesaid, they Nvere 
I compelled to make immediate answer, without 
I being admitted to any counsel; although sir Ro« 
bert Cholmley, then recorder of licmdon, and 
other the counsel of the city there present, 
offered to speak in the cause, ^I'liich were all put 
to silence, and none sufl'ered to speak but the 
parties themselves : whereupon, in conclusioii, 
the said sherifis and White were committed to 
the Tower of London ; and the said clerk, who 
was the occasion of the fray, to a place there 
called Little ^nae^ and the officers of London 
call Taylor, with four otlier officers, who had 
arrested Ferrers, were conunitted to Newgate. 
*< The king, bemg iofonned of this pfOMed» 



\ By oomnuttiDg those judges who have 
led to the trial of, or pronounced sen- | 
ipoa, penoDS entttled to the privilege of 
«se, tor words or actions spoken or done 
die protedioD of the privilege of this 
(iO). 

r Comiinittee have selected a few cases, 
noog the many referred to in the margin 
Report, which, from the nature of their 
sluces, or the importance of the doctrine 
they iUosirate, or toe consequences which 
RMUioed, seemed to your Committee fit 
MTP fully slated than the margin would 
; wA 9IV therefore added as an Appendix. 
w Committee beg leave to observe, that, 
dttsrent search tliey have made in the 
ik, uey have not been able to find an 
e, that any court or magistrate has pre- 
le commit, during the sitting of pariia- 
iB officer of the House, for executing the 
of the House. 

jr tanher beg leave to observe, that they 
nt been able to find, that there has ever 
% instance, wherein this House has suf- 
lay person, committed by order of this 
, i» oe discharged, during the same ses- 
^ soy otlier auUiority whatsoever, with- 
■B committing such person, 
therefore, with regard to J. Miller, who 
ivered from the custody of the messenger 
( lord mayor, who fur the said offence is 
ider the censure of tlie House ; as it ap- 
ayour Committee, that it highly concerns 
faity and power of the House, to main- 
I avthority in this instance, by re-taking 
■i J. 3lilkir ; The Committee recom- 
ooDsiileration of the House, 
it may not be expedient, that the 
edbMU order. That the said J. MiUer be 
liMi the custody of the Serjeant at Arms 
Avihs House. 

i ttat the Serjeant at Arms, his deputy 
he strictly enjoined to call upon the 
officers of the peace, and other 
nho, by the terms of the Speaker's 
nt, are re<|uired to he aidinjyr and assisting 
I m the execution thereof, for such assist- 
■ the Mid Serjeant, his deputy or deputies, 
fad m et war y to enable him or them to 
M» calody tbe said J. Miller. 

Appendix. 

iflQB oo Joriidiction of Courts, fo. 9, 10. 

bdM 34th of Henry 8th, one George Fer- 
• hvgeM for the town of Plymouth, was 
m LoDdoa, by a process out of the 
~ at the suit of one White ; of 
House being inlbrmed, ordered the 

(Hftl, ToL ii. p. *i01 and 203.--Jay and 

4Jiiiie 1689, vol. x. p,Q4, 210, SIS, 

-EKmt 13 and 14 April 1716, vol. 

(V ; aii4 on the 16 April the cl«rk of 

ma oidered to erase the name at the 

•0ftheFiTeMembcrs,18 Jan. t641, 
Jir.— JayaiidTopham,as above. 



71] STATETRIAL8,32CharlesIIJ680.— Proc«fite^tfly«MfR.I»«w|»J«i: [ 

ihgr, called before him the lord chaDcellor of; swer, and he claiming iiri?iiege as beftre, tb 
Eiffiland, and the judges, with the Speaker, : because he shewed no record to prore bhi 
ajvlmany others of the House of Commons, to . ]>ariiament man, pronounced him CoBtunm 
\rhom he declared his opinion to this effect : He i and excommunicated him ; ordering him ^ 
commended their wisdom in maintaining the j ther, he sliould, before the 19th of Slarch, 
]>rivilege8 of their House ; he, among other | tend one of the Commissioners, and he bov 
things, further declared, That he was informed in 3,1)00/. to appear the Wednesday after, i 
by his judges, that he at no time stood so highly stanil to the order of the court, 
in his estate royal, as in the time of parliament, *' Resolved, upon question, That air Rot 
when he as heaii, and they as members, are Howard ought to have had privilege of pari 
conjoined and knit together, into one body poli- ment, nem. con. 



tic ; so as whatsoever offence or injury, during 
that time, is offered to the meanest member ^ 
the House, is to be judged as done against his 
roval person, and the whole coiut of parliament ; 
wmch prerogative of the coiut is so great (as 
his learned counsel inform him) that all acts ajid 
processes coming out of any other inferior 
courts, must for Uie time cease, and give place 
to the highest. 

^* Whereupon sir Edward Montagu, then 
lord chief justice, declared his opinion, confirm- 
ing by divers reasons what the king had said ; 
wuicn was assented to by all the rest, none 
flpeaking to the contrary." 

This case is abto referred to by sir Robert At- 
kyns, in his tract On the Power, Jurisdiction, 
and Privilege of Pftrliamcnt, and in Dyer's Re- 
ports. 



Robert Howard's Case, February 17, 
1635, vol. 1, p. 8t0. 

'* Motkm made, where sir Robert Howard, 
during privilege of pariiament, was excommu- 
Bicat»l for not taking the oath ex officio, 

** Resolved, upon question, to refer this to 
the examination of a select committee, Mr. Sel- 
den and others. 

** This committee to take consideration of the 
lestraint and excommunication of sir Robert 
Howard, and to make their report to the House 
of their proceedings and opinions thernn," p. 
391. 

Maich 21, p. 839. '* Mr. Selden reports 
from the committee. That sir Robert stood pri- 
vileged by the House, when these proceedings 
were had against him. — ^That in>on his appear- 
ance before the oourt, an oath was tendered 
him, to answer things objected against him ; 
he answered, he was a burgess of parKament. 
They pressing him notwithstanding to answer, 
they at length committed him close prisoner to 
the Fleet. Having laid two days, he petitioned 
the lonl keeper for a corput cum cauta ; and 
upon Mr. Bembcfw's certificate tliat he whs a 
parliament man, the lord keeper enlarged him 
by the 10th of March. — That day the court of j hisrh commission court, where «pven bisli 

high commission pressed him agam to answer ; ; present ; and knowelh, tliat then all the i 
u. ..i.:^..j .,._ _^.... ,. .. _ K .„ . . .. .^ Howanl, frtmi 

were frustrated 
Marty n affinned, 1 
llie pariiament sat and adjourned. On the 17th 
of March they called him again ; when he 
feouglit them the cony of the inAm^re of re- 
tvn under Beinbow^s hand, and the oopv of 
lito Habeas Corpus iipcvn which he had been 
4t l knK id » lliatfhabdBgagaiaprcMedtoan- 

1 



" Sndly, Resolved, upon question, That 
Roliert lloward claimed his privilege of pari 
nient in due manner, new. con, 

*^ Resolved, upon question. That a day 
assigned to the members of our Honae, i 
those other which arc commoners, to amwa 
the House their proceedings against air Rol 
Howard. — ^Tlus to be done upon Friday nc 
nine o'clock. 

** Those nf our own members to be made ( 
qiuiinted with tlic dty ; for the other oonmM 
ers, a warrant shall issue under Mr. Speaker 
band, for their appearance that day." 

3nl May, p. 854. '^ Sir John H^rwi 
called in alMut sir Robert Howard's buam 
and interrogated by Mr. Speaker, &c. 

*' Dr. Pope called in, and interrogated. 

*' Mr. Mottersey, the R^^ter, called in, i 
interrogated. 

*' (/pon question, all the pmceedinga ia 
high oommuision oourt against sir Rol 
Howard, from the 1st of Fdl>ruary 22 Jan 
at which time he ought to have had his pii 
lege of parliament, declared to be void, i 
ought to be vacated and anniliilatc<l. 

" Secondly, upon quo^on, whether a le 
to be wrilton, by Mr. Speaker, to the loit 
CanteriiiuT and tlie rest of the Lords, i 
<»thers of the high commissioners, for auDull 
fif the said i>roceediiig4 ? the House divid 
Carried for tiie negative. 

" Upon ouestiou, sir John Hay ward. ! 
Pope, and ttie Register, called in ; and the 
feet of the said order declared to them hr ] 
Speaker ; and that tlie House exp«:tcm i 
be done, and to hear by Monday next that i 
be done ; and in the mean time, the Houae' 
resiiite any resolution concerning tlicroaelf 
ana that tlmy attend the House again on M 
day morning: And the like notice to be gi 
to'hlr. Comptroller and sir H. Slartyn, by 
Serjeant : all which was done by Mr. Hpei 
acconling^y." 

10 Juiic, p. 069. " Sir George More 
fbniieth the Mouse, That he was present at 




tlie order of the House there read and allow 
and all ordered to be done tlirre accordingly 

** Tuesday next, for full satisfaction to 
given to this House, of tlie performance of 
order concerning sir Ro. HonTird." 

On June 15tb, die pdriiament 



*'UpaD iufo r umi on given to this- House, 
Tktt ikU mi HI SterlinfiT, one of the 

ikrift of London, being- served With an <»der, 
wpid by Mr. SpeakmVy to discbarge James 
l^it, menia] servant to sir Henry Herbert 
(fM was arrested and imprisoned in the Poul- 
try Gempter) out of prison ; the said sheriff 
nhatiio obey the said order, or discharge the 
tii Lvde ; but put the order np in his pocket, 
adfttd, he would Answer it to the Sp^er in 
^kHobs. 

• " Benlved, That the said sheriff Sterhng be 
MMb this moTBing sent for, in custody of 
ieiojeant at arms, to this House, to answer 
UfHMdemeuKor and breach of privilege." 

Dee. 19. '' llesohred. That sheriff Sterling 
W caHed to the bar of this House; and shall, 
ipiB Ui knees, receive the reprehension of Mr. 
flrctkor, for his contempt and breach of the 
•iff if this House ; and that he be continued 
■ Ike custody of the seijeant at arms, till he do 
CUM Lyde, servant to sir Henry Herbert, to be 
irfmed out of prison, without any fees or 

** The dieriff being called in, and kneeling at 
ihe kr, Mr. Speaker gave him a grave reiire- 
kaaoa ; and tokl bun, That some sheriffs of 
I s n JB u , for a less offence, liad been sent to the 
Tsvcr ; but, in regard of his loyal affections to 
Ui n|eaty, the House was pleased to remit his 
oftaee, upon the enlargement of the prisoner : 
bsttfait he should remain in the serjeant^s cus- 
todlv until the prisoner was released, as aforc- 

4 June, 167 5, p. m. vol. 9, p. 353. *< Or- 
^end, Hiit Mr. Speaker do issue out a warrant 
toMu Tcdbam, esquire, serieant at anus now 
f/^tadiBg wim House, to authorize and require 
bn, that, if any person or persons shaU attempt 
wgoaboiitto arrest, imprison, or detain, him 
&Qni oecnting his office, or from his attcnd- 
•nee upon this House, to apprehend such per- 
MOi, and brin^ them in custody to answer their 
l|RMfa of privilege ; and to reunire and autlio- 
liietl p eis oiia to be aiding anci assisting to liim 

IS6KU« 

4th June, 168t), vol. 10, p. 164. *' A Petition 
•f John Topham, e:v|uirc, was read ; setting 
fcith. That he, bcin^ a Serjeant at arms, and 
ittaidnig ^e House, m the year 1679 and 1680, 
*te several orders were made and dircxsted to 
Ihe Petitioner, for tfie taking into his custody 
theteverni persons of sir Charles Neal, &c. 9cc. 
•i oihera, for several misdemeanors by them 
mmitted, in breach of tiie privilege of the 
BMse ; and after that the Commons were dis- 
Mhed, the said persons, being resolve'l to ruin 
fte Petitii^er, did, in Hilary IVrm the 33rd or 
Ml of king Charles , sue the Petitioner in 
^ King's-bench, in several actions of trespass, 
toery, and iUse imjirisonment, for taking and 
dctunmg them as aiortsaid : To which actions 
Ae Petitioner pleaded to the jurisdiction of the 
ionit the Mwlflevend orders; but such his plea 



7S] STATE TRIALS, 32 Charlbs H. I S^^O.-^PriviUge of Partttment [74 

mi 18 1»ec«nU^voL8. P- 336. C.sb of ^Z^'St^^n S^.S^e'S^t 

^^^* pleaded the orders in bar to the actions ; not- 

withstanding which plea and orders, the then 
judges gave judgmoit against him, (Sec." 

6th July, p. S09. " Colonel Birch reports 
from the Committee of privileges and elec- 
tions, to whom the petition of J. Topham was 
referred, Sec. 

" Whereupon the House Resolved, That this 
Houde doth agree with the committee, that the 
judgment given by the court of Kipg*s-bench, 
in Easter Term, 34 Car. 9. Regis, upon the 
plea of John Topham, at the suit of John Jay, 
to the jurisdiction of that court; and also the 
judgments given agamst the said Mr. Topham, 
at the suit of Saniuei Verdon, &c. are iuegal, 
and a violation of the privileges of parliament, 
and pernicious to the nghts of paiiiament, 

" Ordered, That sir Francis Pemberton, sur 
Thomas Jones, and sir Francis W^-thens, do at- 
tend this House, on Wednesday mominir 
next." ^ ^ 

19 July, p. 227. " Sh* Francis Pemberton 
and sir Thomas Jones attending, were called 
in ; and having been hoard in their dd^cmcc, 
were committed to the Serjeant at Arms, for 
their breach of the privileges of this House, by 
^ving judgment to over-rule the plea to the 
jurisdiction of the court of King's-bench, in 
the case between Jay and Topham.'* 

The Case of sir William Williams ; against 
whom, after the dissolution of the parliament 
held at Oxford, an information was brought, by 
the Attorney General, in the King's-bench, iu 
Trin. Term, 36 Car. 3, for a misdemeanor 
for having printed the information against Tho- 
mas Dangerfield, which he had ordered to be 
printed, when he was Speaker, by order of the 
House. Judgment passed against him on this 
information in the second year of king James 
the Second. This proceeding the Convention 
Parliament deemed so great a grievance, and 
so high an infringement of the rights of parlia- 
ment, that it aupears to your committee to be 
the principal, ir not the sole, object of the fii-st 
part of the eightli head of the means used by 
king James to subvert the laws and liberties of 
this kingdom as set forth in the declaration of 
the two Houses; which will appear evident 
from tlie account given in the journal, 8tli Feb. 
1608, of the forming of that declaration, the 
eighth head of which was at first conceived in 
these words ; viz. *' By causing informations 
to be brought and prosecuted in the court of 
King's- bench, fur matters and causes cog- 
nizable only in parliament ; and by divers other 
arbitrary and illegal courses." 

11 ftbruary 1688. " To this article the 
Lords disagreed ; and gave for a reason, be- 
cause the^ do not fully apprehend wliat is 
meant by it, nor what insiances tiiere have been 
of it; which therefore they desire may be ex- 
plained, if the House shall thinJc tit to insist 
further on it." 

12 February 1688. <' The House disagree 
vfiih the Lonb m then: amendment in leaving 



7d] STATE TRIALS 3gCHAEL»slL l6S0^Pr§€eii{wg$ iffilmmM. fUmtam: [rft 



out die ciglitfi article. Bnl in veneet of die 
Iflwrty gnren by the Lorde in fiptyning thai 
matter: 

*^ tUnlrad, That dw words do atand in tlua> 
manner :*-By proaecutiona in the court of 
Kii^-bendi for mattera and onaea cognizable 
only in pailiamenty and by direra oueraibi- 
tranr and illegal conraea." 

Hy whidi amendment, yonr committee oh- 
aerfoa, thatthe Hooae adapted the artide more 
ciorrectljrtothecaaeth^nadinTievr; for the 
informalibii waa filed m long CHiarlea the ae- 
cidnd's time ; but the yroaeeotion waa carried 
oily and judgment obtamed, in the aeoond year 
ofldng/amaa. 

That the meaning of the Houae should be 
made more endentto the Lords; the House 
OKderedy '< That air William Williams be added 
to the mauqrera of die conference;" and air 
WQliam Wmiama the same day >^SPM^ die 
eonference.with the Lords : ana ** That thenr 
lordships had adopted the article in the woida 
aa amended b;^ the Commons." And corre- 
sponding to thia article of gnenmce is the as- 
aertion of the right of the sulgect^ in the mndi 
article of this itecbratoiy put of the bill of 
Rights : ra. '* That the freedom and debatea 
or proceedinga in parliament ought not to be 
iibpeaidied or questioned in any court or place 
out nf parliament." 

To which may be added, the latter part of 
the Sixth Resolotion of the Exceptiona to be 
made in the bUl of Indemnity, Journal, ytil. 10, 
p. 140, wherein, after reciting the surrender of 
chart«nB, and the viplating[ the rights and free- 
doms of electioDS, &c. tt proceeds in these 
words : '* And die questioninfli: the proceced- 
ittga of parliament, out of paniament, by de- 
darations, informations, or otoerwise, are crimes 
for which some persons may be justly excepted 
out of the bill or Indemnity." 

On die lldi of June 1689, p. 1T7. " The 
House ordered, That the records of the court 
of Kiri^'s-beticb, relating to the proceedings 
against nilHam Williams, esq. now sir ^Vu- 
liam Williams, knij^ht and baronet, late Speaker 
of th» House, be brought into thu House, by 
the Gustos Brevium of the said court, on Thurs- 
day morning next." ' 

On the 12th of July, p. 215. " The record 
was read ; and the House thereupon Resolved, 
That the judgment given iu the court of King's- 
bench, m £aster Term, ^ Jac. S, against 
William Williams, esq. Speaker of ^e House 
of Commons, in the parliament held at West- 
minster, 25 October 32 Car. 2, for matters 
done by order of the House of Commons, and 
as Speaker thereof, is an illegal judgment, and 
against the freedom of parliament 

« Resolved, That a bill be brought m, to re- 
v^erse the said judgment." 

This bill was twice read ; but went no fur- 
ther m that session. 

^691. 28 April, vol. 10, p. 53r. " A com- 

Twiiw bcmg made to the House, That Sam. 

*gg;«^«w William Philipps, esquires, Walter 

'IHomboroi^, an attorney at law, and Francis 




tfeare, liady lora 

Sat session for 
TOttred totom 
of the kmgdnm ef Iidaad,* 
Hooaeyoot of the 



i€fm 



« Ordered, Tint it bt. reAma4 aa^ 
Speaker, 9ce, 
^ Ordered, Hut Hbr. ^eakor 4» 




nttht 






t: 



■»'.**< 



letter to the protfaoootarr _ „ 

out and totheafaeriff of dmeoiuritf afti 

^bcoke that he do not esaeqtey M^ wntr *^ 
the lord Bulkdcy'a poaaaaMi naqr 
tnrbed, until Mr. Speaker aball hsna 
and reported die matafer to the JSai 
Houae take furdier order theniB." 

ina, ApriKl4, 16, 16, ToL 18, p. 4tO. H 
Houae bemg acquamted diaft JonatfaaMjP 
eaq. a member of thia Honaei has )ftm 
moned, by John Metoalf and Alena ~ 
esoaires,two jostioes of dia.peaoe for 
of teddfeaez, to apiiear bsfare tlMi% la 
oatha ai^ointed by die late act ef 
which aummona waa defivmd in 
table, and read: 

«« Oidered, Hiat John Metealf. 
ander Ward, eaquirea, do attend thia 
morrow moniiiu%" 

AprilU. <« Were caDed m: IImv c 
leged they did issue a warrant for I^. 
to come and take the oadM; b«t tb|k ~ 
not know he was a w^mfpr of tlie 
til they had made a return into the qi 
sions. 

« Ordered, That die derk of die . 
the comity of Middleaex do attend, npqii 
day mormng next, with the retlun, dee. 

Aprfl 16. " Ordered, nem. ooo. IM Al 
deputy clerk of the peace fonr the tamt^4$ 
Middlesex be called in, and, at the tahla, anm 
the name of Jonathan Elford, esq. a menbvfl 
this House, out of the return made by JohmMMt 
calf aud Alexander Ward, esquires, two -elMB 
justices of the peace for the aaid f»ffnwfr^ 
such persons as nave been summoned by ftiai 
to take the oaths, and who have negfeoled sal 
refused so to do. 

" Aud Mr. Hardestv waa called in ; mLd 
the table, erased out the name of Fimathanji: 
ford accordingly." 

14 Nov. 1640, S vol. p. 39. " Ont^a^ 
That a warrant shall issue, under Mr. n^iajiaill 
hand, to all mayors, justices of peaioet bsflMlb 
sheriffs, constables, and (^er ma mqjaalj^ 
officers of this kingdom, requiring them tapp 
assistant to the bearer or bearera m die aiaiimt 
of this House, for die bringmgin aafe riMfcufff 
sir G. Raddiffe to this Hoiue,7or the. better aSl 
more effectual execution of hia d)r 
warrant." 

January 11th 1641, vol. 9, p. 3? I. 
dered, Tnat, in the execution of the 
this House for the apprehending of sir 

Brooke, the Seijeant at Arma attendiiM^T 

House, his deputy or deputiea, doiei|iSe ^ 
aasistance of aU sherids, justices of peaee» ep* 
stables| and other officers, fortheapprehendhg 




17] STATE TRIALS, 32 Charlbs II. l6S0.— Privilege of 



[79 



flf the sud mr Bazil Brooke ; and to use all 
■fHBUe dilqpeiice herein." 

91 Deixiiifaer 1660, toI. 8, p. 929. <* This 
HMMhaviDff formcriy ismied an order for the 
Meat at £nii8, &c. to send lor in custody 
Wiboi Nabbs and Mr. Bfaurice Tompson, 
Arviofatine; the pririlefl^ of this House, in tlie 
ow of sir Francis Lawleyi and being inibrm- 
fi ibt the said Nabbs withdraws himself; and 
te tbe aerieant's d^uties, who bad in charge 
ibe warrant as to Mr. Tompson, were dtfnied 
■Uftnoe to him ; and that slighting and con- 
iwap l a oQa words were given touching the war- 
IHI; tbe said deputies were called in to the 
. iv if this House, and examined ; viz. Walter 
(Ml and Simon Lowen. 

"Acsobed, That Mr. Maurice Tompson be 
■it ftr, in custody, as a delinquent ; and that 
lbs Seijeant at Arms be empowered to break 
lycB Mr. Tompson's house in case of resist- 
■K, and also to brine in custody all such as 
Ml make opposition tnerein ; and he is to call 
H \m assistance the Sheriff of Middlesex, and 
iliAer ofiicers as he shall see cause, who 
mnqoiredto assist him accordingly." 

immry 94» 1670, vol. 9, p. 193. '* Infor- 
■itiBn bemg given of a very high contempt 
nrf Bysdemeanor committed against the House, 
iy wsuhiug' and beating George Dudley, de- 
, Pi^ to 4ie Seneant at Arms, and rescuing out 
«f bs ciiilody Tliomas Parsons, (Sec. 

" Which misdemeanor and rescue, the said 
IM^ did testify, was oonunitted by Mr. 
Ma Cox, under sheriA' of the county of Glou- 
cater, and his bailiff and others. 

^ Kcsolved, That the Serjeant at Arms at- 
iafing this House, or such deputy or deputies 
as he MHiD appoint, do apprehend and take into 
oBlody Mr. John Cox, under sheriff of the 
OBonty cf Obncester, ^ViUiam Forder, &c. <Scc. 

" Aad tbe high sheriff of the county of 
Cb u ce rte r , and other officers concerned, are to 
be reipiired, by warrant from Mr. Speaker, to 
be aidmcf and assisting in the execution of such 
wiirantl" 

Tide also— Topham, as before, Jime -J, 1675. 

86FebnuDry 1701, vol. 1.3, p. 767. " Re- 
fohed. That to assert, the House of Com- 
OMnshave no power of commitment, but of 
tbcir own members, tends to the subversion of 
tbe constitution of the House of Commons." 

iRtpartM from Commiitee$ of the Houic 
of Commons, vol, 3, p. 6.3 

Hie Committee consisted of the following 
foions: 

The right hon. Wettmre Ellis ; Mr. Solicitor 
General, (Alexander Wedderbume, afterwards 
carl of Kosslyn and successively Lord Chief 
JiKtice €if the Court of Common Pleas and 
LonI Chancellor) ; Mr. Attorney General, (Ed- 
wird Tlinriow, aderwards lord Thurlow and 
Lord Chancelkn*) ; Jeremiah Dyson, esq. ; 
Rose Fuller, eso. ; The right hon. sir Gilbert 
Eflbt, hart. ; Sir HenryHogfaton, bart. ; Sir 
Bllbun Bagut^ bart^ The right hon. Hans 



Stanley ; Sir Thomas Clavering, bart ; Ro. 
bert Henley Ongley, esq. ; Thonu» De Grey, 
esq. ; The right lion, lord John Cavendkb; 
The right hon. lord George Sackville Gennain ; 
The hon. John Yorke ; The hon. Charles 
Marsham ; The Lord Advocate of Scotknd ; 
Doctor William Burrell ; John Buller, of £xe« 
ter, esq. ; Sir Roger Newdigate, bart. ; Fre- 
derick Montagu, esq. 

This report is said to have been prepared by 
the Attorney General and Solicitor General. 

Thus it appears that there are abundance of 
precedents of punishment by tbe House of 
Commons for breach of privilege, and accord- 
ingly lord Hale ^^iee 1 Hargrave, Juridical Ar« 
gunients and Collections, p. 7.) says, <^ surely 
the right of criminal punishment ot breaches of 
privilege of the members of the House of Com* 
mons by long and ancient usage belongs to the 
House of Commons, but not to give damages." 

Precedents should not by any means be 
slighted. On the contr«iry m the law of Eng- 
land they are contemplated uith very great 
respect, or as Mr. Justice Blackstonc(l Conun. 
7 1.) expresses it, '* the deciKions of courts are 
held in the highest regard ;" and this chiefly as 
being eviilence of what the law is ; but partly 
also, as it seems, for the preservation of urn- 
fonnity an<l prevention of uncertainty, or, ac- 
cording to his phrase, ** to keep the scale of jus- 
tice even and steady, and not liable to waver 
with every new judges opinion ." ( 1 . Comm. 
69.) But this regard and respect for precedents 
is not unlimited, for, as the same learned com- 
mentator instructs us, (vol. 1. p. 71.) ** the law 
and the opinion of the judge are not always 
convertible terms, or one and the same thing ; 
since it sometimes may happen that the ju^e 
may mistake the law.'^ In truth, as bishop Bur- 
net'told sir William Junes (See vol. 6. p. 1491 
of this Collection) '' a precedent n^nst reason 
may signify no more but that the Idee injustice 
has been done before.*' Accordingly the excel- 
lent Chief Justice Vaugliau said in the Case 
concerxiing '* Process out of the Courts at 
Westminster into Wales," (Vau^h. Rep. 419.) 
** l^recedeuts are uscfid to decide questions i 
but in such cases as depend u|)on fundamental 
principles from wbich demonstrations may be 
drawn, millions of precedents are to no purpose." 
See too, u|>on the invalidity of the longest and 
most unifunn succession of precedents, in con- 
tradiction to tiie plain unambiguous words of 
a statute, or in departiu*e fi-om tbem, whether 
by construction or otherwise, the powerful ob- 
senations of Mr. Erskiue at tlie Trial of John 
Home Tooke, (a. d. 179-1, infra), which ob- 
servations were recognised and reasserted by his 
lordship in the House of Lords on the 7 th ol May 
in tbe present year 1810 [See Cobb. Pari. Deb. 
vol. xvi.] 

That zealous, eloquent, and potent friend of 
establishments, Mr. Burke, has, indeed, in his 
anxiety to preserve tlie fabric of our adiiiiiiihle 
constitution, by the removal of whatever is 
likely to impair or indanger its tbundationSy 



79] STATETRIAIA5tCBAirLKsILl68O.---/V)0ccrdS«g:ii^ 



of pieccduti with vciy^ faltle levC' f 
After iuti o da c ii^ to tlie coBteni|iC of. 
kii hmm, tboK wbo «* are proud of the ao- 
ti^oity of tfadr Hoaie, and defend their cr- 
lon as tf they were defeadincr their inheritaooe, 
afraid of deroeatiD|^ fiooi their noUity, and 
carefolly avoi&i^ a aort of bloc in their soot- 
ffifaoon, which they think would degrade them 
fiir t^v ;" he proceeds, <« It was thoa that 
the imfortunale Charles the first defended him- • 
aelf onthe practioeof the 8toarts" [I coniec- 
tore he meant the Sjcoart] **who went b«3bre 
him, and of ad the Tudon. His partisans 
might hare gate to the Plantagenels. Tbev . 
might bare tbimd bad examples enoogh bom . 
abroad and at home, that coiUd hare shewn an 
Slaitnoiis descent. BoC there is a time, when 
flienwil] not suffer bad things, becanae their 
anoestors hare sufleicd worse. There is a time . 
when the hoary head of inreterate abuse will 
nrithiT draw rererence nor obtain p rotection." : 
gpecdiin the House of Commons, Feb, Jlth i 
1780. 

And it most be admitted that when oooside- 
tation is had of the liability of the powerful to 
Mofennd power with right * (a topic the theonr 
•f whieh penrades the com p os it io n* of moral- 
ins of erery ase, and of erery deacripiion, 
paats, orators, pnikMophers ; and the practice , 
of which is proclaimed in almost erery page j 
of history) It may perhaps be not unressooame i 
to entertain the opinion that precedents of acts 
of power exercised by indiriuiods or bodies of 
Dwo, possessing or supposed to possess suffi- 
cient strength, physical or moral, to enlbrce 
the ezerdse of such acts of power, are not of 
oqnal ralidity with precedeniB of other kinds, 
so eridence of right. This opinion will derire 
nuich support from many parts erf* this CoUec- 
tioQ. See the early State Trials as refiTred to 
hj Foster 284, the great Case of Impositions 
ID this Collection, rol. 2, p- 37, and Mr. Har- 
crare'sadmiraUe Introduction to that Case ; the 
Bistoty of the Proceedings out of which arose 
the Petition oi' Right ; and the History of the 
Proceedings out of which arose the Rerolution 
in the year 1683. See also the Case of Penn 
and Mead, rol. 6. p. 921, and the notes thereto ; 
And Chief Justice Vanghan's ai^gument in 
Boshell's Case, rol. 6, p. 999 of this Collection. 
6aetoo the particulars of lord Loughborough's 
attempt at the Summer Assizes 1789 to ex- 
act a fine of fire hundred pounds upon the 
county of Essex, for defects m their jad ; as to 
which attempt the difference is to be noted be- 
tween fines imposed upon counties by a judge, 
nod amercements upon counties assessed 6v a 
jury of the body of the county. The law rdat- 
ing to this last Case has been rery profoundly 
inrevtigatui by Mr. Hargrare, and it is to be 
hoped that he wiQ make public the result of his 
raluable lucubrations ou tlie Subject. 

• ^ Judges," says lord Hale, (Jucisitictkmof 
LvdaHoMeorPwliafnentyp. 93.)"oommoiily 
•hilit rothcr to amplify, if it may be, than to 
ahri ^f otlkir own juriMictioD." 



The Case of Trewynniard has 1 


ttcn 


noticed in the late db 


COBBOmi CODO 


enm 


vikge of parfiament. 


ItisgircBso 


Ml 


Mr. Baron Maacfea in 


his'^CoOectiaBoi 


and Records cooccra 


mg Pkifflfge 


of] 


mem," p. &3. 







TacwTKoiBn's Cjisx. Easter, 36 and 31 
8, A. D. 1544, m B. R Tide Dy< 
59, b. 



'« In the Kuur's-bendi dv case wa 
One WiUiam Trew;\nniard was impi 
upon a writ of Exigait that iarard upon 
pus ad Satisfiuaendnm at the suit < 
Skewb; and he being thereupon taken i 
cution, a writ of the p i iiileg e of pailiBm 
sued to Robert Chamond, at that time 
of the comity of CornwaD, rooting tha 
wynniard was a burges of parhunen 
likewise reciting the custom of privilege < 
liament. The sfaeriflfm ohef&ence to ihi 
dorinjg the last session of the hut parii 
hdd in the 35th year of the kine that i 
let Trewynniard 'go atlaige. Heteop 
executors of Skewis bring an action o 
against the said Chamond ; and they den 
in law upon this matter. 

In this case there are three tfiingi 



'' 1st. ^Vhether the pririlege of paifi 
lay in this case for a borgem of the parfi 
arrested upon a writ of execution. 

" tedly. Supposing the pririle{(e by 
case, whether the part\', upon his hem 
larged in consequence 'of it, shaO by ^w 
largcment be absolutely discharged fn 
execution to be had against him by ihn 
party at any time hereafter, or only duri 
time of pariiament. 

««3rdly. Whether, if privilege should 1 
not to lie at all in this case, the baring m 
obedience to this writ, as the king's wan 
him proceeding firom the parliament, sh 
be a sufficient excuse for the sheriff's co 
and dis(;harge him from being answerable 
pbuntiff for the debt. 

*' With respect to the first point, it se 
that priTilege u to be allowed in this case, 
the proof w this it is necessary to cxmsid 
estate of parliament, which consists ol 
parts, namely, the king as the chief hei 
lords chief and princijial members of the 
and the commons, to wit, the knights, cr 
and burgCMit's, as the inferior memoers ; \ 
together constitute the body of the pariii 
It is alsM) proper to consider the electi 
these members, uith what care and sdk 
they are elected, the manner of perfi) 
which elections appeacs in the statutes 
concerning them. And when they are < 
and returned to parliament, it is understi 
all men they are the wisest and most di 
men in the kingdom, and the fittest to * 
upon the good of the commonwealth ; ai 
cordingly the writ of summons to parfi 
directs tnat they be chosen * de grarioii 
* dMcrdNribiit virin,* 6cc And after tin 



STATE TRIALS, 32 Charles II. l6S0,^Prmlege of Parliament. [82 



, 'Chimed, tbdr personal attendance in the 
"""^ntls 80 necessary that they ought not 
*■? ^'Qsiness whatsoever to be absent, and 
*'** person can be well spared because he is 
**^>7 member ; and for this reason, if any 
^^ dies during the parKament, a ne\*' one 
JJ^ <^boscn in bis sU^, to the end that the 
™* liumlw may l>e kept up undiminished. 
Jp from hence it follows that tl\e person of 
^^^ch member ou^ht to be privUeged from 
Ir'S2''wted at the suit of any private person 
g""?^ time that he is busied about the af- 
wJL*^ iung and kingdom. And tliis privi- 
^Msilwaj-s been granted by the king to his 



J^T^ttiherfduest of the Speaker of the 
J***«o»tllie lirst day, kc. Tlicrefure com- 
Shdf?'* directs that, inasmuch as the king 
no rf ^'%'^^*™ *>»^'e an interest in tlie ptT- 
ttj!l^^^^^ *^ members, the private 
|T|^*°gofany particular man ought not to 

•ilBrf^.* ^* *^ ** * maxim in the law, 
I ^^J"^ dignnm traliit ad se minus dig- 

\ fci i aJ'^' ^^^ "*** *" ^^^ ^^^ y^*^ ^^ Edw. 
rrrrfii'i- '^^^ man is condemned in trespass 
beS^!?' *?^ ''^ '" execution for the fine to 
^^^"j»Ju he is outlawed for felony, his body 



gg^^'pprisoned at the suit of' the party, 

Nui »li2f '^ ^** an interest in his bwly, 

adDd^k'^^^"^ &c. It may therefore be 

-"*w that this court of parliament is the 

auir Mk '^'^'''l'' *"*^ ^^ more privileges 
adi iLfc?^ court of the kingdom ; for 



liont^mt!^ it seemeth that in every case 
. j^ ^cepiion, every burgess is intitleCi 
JJJjf ^hea the arrest is only at the suit of 
^r^» *nd the present case is stroncfer 



^v;» «nd the present case is stron^r 
ii^^^geion onc«, because the execution 
.^.j »yi>gthe time of pariiament, and the 
t"~5J?|i>s election whether he would sue 
-LmJ^*^ against his body or against his 
'j^jy.y^. And further, every privilege 
^^^ ^ prescription ; and every prescrip- 
■™J poinotes tne public wellare is (j[ood, 
■■*P* ttniay be a prejudice to some private 
5'**'^Wi m the time of Edw. 4, a prescrip- 
■■^*8iD another man's ground ailjoining 
•^**t in Older to erect bulwarks against the 
^^PJ^oes, was held to be good. 
J^ "Eipect to the 2d point, it seemeth 
■^«prty is not discharged from execution 
? . ^y/»r * certain time : for it is 
j^ywl or unreasonable that a ju<lgment 
■■JhBat one time executed, and at anotlier 
^f^ i M when a fine is levied with a re- 
[jM»ofw, and after the death of the tenant 
ifeH^dntes, and he in remainder recovers 
tmefkaaB, and afterwards the recovery is 
WW ftr ever, he nr his heir shall have a 
^ tore facias notwithstanding it was once 
■BiBd; fiiT the cause wUlthen cease: and 
be like reason the person of a man may be 
kgcd for a certain time, and yet he may 
Rpinb be put in prison ; as if a villain comes 
freg in anftient demesne for a year, his lonl 
* afterwards lay hands upon him ; the 
; the same where the presence of the king 
loctoary to him ; and yet formerfy the 
L. yiif. 



/ 



lord might have seized ujioii him aAenvards : 
by the same reason, \c. And there is a differ- 
anc-e to be made where the ImxIv of a man that 
is in execution is set at large by'the airtliority of 
the law, and where it is done without authority 
by the sheriflPs own will and boldncKS : for the 
law will save all rights ; as in the cases of m1- 
lains alwve-mentioned, ihey are by the law nri- 
vilegeil « pro temnore ;' but ^if the lord himself in- 
franchises them by manimiission indeed or law 
for an hour, tliis infranchisement is good fm* 
ever, * favoruin libertatis.* AUiO the law by a 
pluiicular statute directs that * ces:t'.iy a que use' 
niay enter and make a ti^iTinent, and tliis shall 
bind his leoffees ; yet if a * cestuy a que in use* 
tail makes a feoffment, this is no discontiniiancp. 
Also the law directs that, i<a bishop nresentoi to 
a benefice by lapse upon" default or the riglit 
patnm, yet his iircsentation, whicjli is maik by 
authority of the law, shall not prejudice the right 
pati-ons. For these reasons in the present case 
this enlanrement by writ is only a privilege of 
the burgess * pro tein|>ore,* and not a discharge 

* in pfTpetuum ;' as in the case mcutione<l alxive 
tliut hap|ien(Ml in 6 Edw. 4. the cxc>calion of the 
party to have the body in prison was suspended 

* pro tempore* until tlu* king had imrdtmed him 
the felony, but attcnvards is revived, • prout ad- 
'jiulicatur ibidem,* by which it soemelh, &c. It 
thei'efbre follows that no action is given against 
the sheriff for the escape, unless in respect that 
the principal debtor is ilischargcnl, there being 
no reason that the plaintiff shoidd l>e twice sa- 
tisfied for the same debt, for which, &c. 

And as to the tliird point, it seemetli that the 
sheriff is not answerable : For if no default, or 
laches, can l)e ascribed to the sheriflT, there can 
be no reason to charge him with the debt ; and 
there seems to have been no defaidt in him. 
For the office of sheriff consists chiefly in the 
execution and serving of writs and processes <^ 
the law : And to perform these he is the im- 
mediate officer, and he is sworn that he will 
pei-fbrm them. And for this reason he is bound 
by his office and oath to make a just return. 
And the law supposes him to be a lay ]iersony 
and not to liave knowledge of the science of 
the law ; and he is therefore unable to argue or 
dispute whether any A^Tit that he receives comes 
to him with or without sufficient authority : 
and ujK>n this ^^und, if a (*apias comes to him 
without any original writ, and he serves it, he 
will I>e excused for so doing in an action of 
false imprisonment. The law is the same if 
a capias or an exigfent comes to .the sheriff 
against a duke or an earl, against whom it 
does notice. And, to prove that the sheriff is 
not hound to to take notice of the law, the writ 
< de homine re|ilegiando' iHrects that tfie sheriff 
shall make deiiverance of the body, unless the 
man was taken into custody by the special com- 
mandment of the kinqr « velcapitalis justificarii, 
' yel pro morte homiiiis, vel pro foresta, vel pro 

* aliquo alio recto quare secundum coiisuetudi- 
' nem Anglise non est replejdabilis.' And fur- 
ther by the statute of Mar&ridgc, cap. 8^ the 
sheriff shall be amerced V£ te M^es^ «^ igwswwx 

G 



831 STATE TRIALS, 3Q Charles II. xSZO.-^ Proceedings tgaiiut R. Tkompion: [84 

You have very properly confined your quei- 
tioDS to the particular case, tumishod nie by tha 
affidavit which you have transmitted to ue; 
and my answers therefore need involve in them 
no general discussions upon the principles <iC 
civil ^vemnient, which m the mere amtFMt 
are not often u^teful, nor always intelligible. 
The projK)sition8, to which my answers art 
meant strictly to apply, are. 

First, WliL'thcr the tacts changed by the aiBr 
davit, (m which your court of Kjnif 's-bench ii 
proceeiling agahist the magistrates of Leitrim, 
are sufficient to warrant a.:y €Timinal prosecu- 
tion for a misdemeanor whatsoever ? 

Secondly, Whether, supposing tliem snfE- 
cicnt to warrant a prosecution by informatioii 
or indictment, the court has any jurisdieliQi 



for n?dweisi:i »vitliout s{)ci-ial precept. And 
also the statute of Wl^slm. 'i, c. 11, * de servi- 

* entibus i-t l>i\lUvis,* ordains ihat, if any iiiaii 
is csindomiitxl in arreamjres hil'orc auditors and 
committed »o the uv\i i^Hol, the sheriff or gaoler 
shall not deliver him by a writ » dc homiiie re- 

* plejfiando,nec nliter,* \*ithout the consent of 
his master. And yet if tlwj party sues by his 
friends and obtaii» a writ oi' £x parte talis 
returnable in the Exchequer, he may let him 
go at large : and, notwithstanding that he is 
onee duiciiar&fe<l, if it ap|iearsu}»on the exami- 
nation of his accounts that he was in arrears 
and duly comihitted to prison, he shall be re- 
manded' to prison quonsque, Sec. ^Vndletus sup- 
pose that the sheriff in the present case had dis- 
oKeved this uiit ; what damage must he not have 
suffered ? He would have l)een in danger of per- 
jury, and also of imprisonment of his body, and 
ransom at the king's wi'l : and this was dune in 
this same parliament against Hill and Suckley 
the sherifls of London, who were committed to 
the Tower for their contempt becaase they 
would not let George Ferris,wlio was arrested 
upon an exocution/go at large when the Ser- 
jeant at arms came to deman<l him, though 
without a M rit. And it is probable this prece- 
dent was a terror to Charaond, and made him 
learful of disobeying the writ of pariiament 
which is the highest court of the kingdom. 
And it appears ])lain]y by the writ that they 
were clearly of opinion in the parliament that 
the p^rty ought to have his privilege in 
this case ; for otherwise the writ woiikl only 
have been an Habeas CorpiLs cum causa, 
which writ is oftentimes granted before the jus- 
tices are agreetl whether privilege lies in the 
case. or no ; and if tliev find that privilege 
does not lie in the case before tliem, they re- 
mand the matter with a procedendo ^c. And 
therefore, althougli the parliament should have 
acted erroneously in grantin gthe writ, yet their 
art cannot be reiiseil by any other court : and 
therdore there is no default m the sherifiL 



Tlie following acoounts of the sentiments of 
two great men on matters connected with this 
subject are voy well worth preserving. , 

Mr. Erskine's Opinion of the Proceedinpt qf 
the Court of King^^-Bench in Ireland, by 
Attachment y written to a Gentleman of Mgh 
Reputation at the Bar in Dublin.* 

Sib 'r Bath, Jan. Id, 1785. 

I <eel myself very much honoured by your 
appUcatkm to me, on an occasion so important 
to the public freedom ; and I ody lament, that 
neither my aj^ por experience are such as to , 
|p?e wv opiiooo any authority wkh die covt 
^ wliick you practise ; but wMserer I have no 
dbubt, I am always n»dy to say what I think, 
and you are, therefore, very welooiue to my 
most public sentiments, if any use can be made 
of tliem. 



* PnUshed in the IHoniing Chronicle news- 
tffer^ 1810. 



to proceed by attachment ? 

As you are pushed in point of time, I 

venture to answer lioth tliese questions at BaA| 
without the assistance of my books, becauM 
they would tlirow no light upon tlie first fi«B 
its singularity, and the Ust is much toocleariD 
require any from them. 

As to the fu^st— The facts charged by the af- 
fidavit do of themselves neither establish nsr 
exclude guilt in the defendimts. In one Mil 
of society Kuch proceedings might be higWy 
criminal ; and, iu another, truly ^irtuoat nd 
Ic^l. 

fo create a national delegation amongst a 
free people, already governed by rcpresad*-' 
tioii, can never be, under all circunistancesi i 
crime: the objects of sucli delegation, and At 
purposes of those who seek to effect it, em 
alone determine the quality of the act, aiid At 
guilt or innocence of the actors. 

If it ]K>ints (no matter upon what necearity) 
to supersede or to controul Uie existing go vc nH 
ment, it is self evident, that it cannot be tole- 
rated by its laws. It may be a glorious revsla- 
tion, but it is rebellion agaiust &e govemimil 
which it changes. 

U, on the other hand, it extends no fuitinr 
than, to speak with certainty, the united ?0M 
of the nation to its representatives, without a^ 
derogation of their legishitive auUiority Mi 
discretion; it is a legal proceeding, wlikk 
ou^ht not indeed to be lightly enter^uned, 
which many national conjunctures may 
wise and necessary. 

The Attorney General might, undoubtadl|b 
convert the facts, contained in the affidavit, if 
toalegalchargeof ahighnusdemeanor; wkkh 
when properly put into the ftmi<yr an inSanum 
tion, the defendants could demur to : but ki 
could not aocomplidi this, without putting OMJ 
the record averments of tiiicir csriimnal purpi^ 
and intentions ; tlic truth of whirii vwrmm 
are facts which he must establish at the ft 
or fail in his prosecution. It is the provinoi 
tlie jury, who are the best judges of the atfll 
the nation, and the most <leeply interaeted in 
preservation of its tranouiUity, to say, by iL 
verdict, whether the defendants acted ft 

iprincipke of public spirit, and for the sum 
of good government, or sougbt aeditiMiiil] 



STATE TRIALS, 3^ Cii ar les II. 1 6S0.—Privnmi of Parliament. [86 



jb it. — ^llie one or the other of these ob- 
would be collected at the trial, from the 
iict of the defendants in sununoDing the 
iagf and the purposes of it ^hen met. 
the jury saw reason from the evidence to 
i that its olgccts, ho%«ever ct)loure<l by ex- 
sons the most guarded and legal, were in 
t, and intended to be, subversive of govem- 
i sad order, or calcubited to stir up discon- 
witbout adequate objects to vindicate the 
eatlentioa of thepablic, theyivoiddbe 
d ia conscience and m law to convict them : 
if^ on the other hand, their conduct ap- 
f4 to be vindicated by public danger or ne- 
iiT, ilirected to leg^ objects orrelbrma- 
ud animated by a laudable zeal for the 
vr and prosperity of the nation ; then no 
rture from accustomed forms in the maii- 
f astembling ; nor anv incorri*ct expres- 
in the description ot^thcir object, would 
«r even justify , a jury to convict them as 
en of the ^vernment, or disturbers of the 



>com[*itntp a leg^\ chai^eof either of these 
on, the crown (as I before obsen'ed) must 
the criminal intention, which is the es- 
t €f every crime ; and these averments 
the either fntned at the trial, or, if to be 
icd, prifHa Jaeie^ from the facts themselves, 
be irlmtted by evidence of the defendants 
i:nt purposes. If the criminal intent 
^ b} the information be not established 
c tttbc&ction of the jury, the information, 
b charges it, is not true ; and they are 
d to say so by a verdict of acquittal, i 
hnvftre of opinion (in answer to the first 
tiBa). that the defendants are liable to be 
KBttd by information ; but that the suc- 
' if Mch prosecution ought to de^iend u])on 
•TJaHB which the people of Ireland, fonn- 
■ jsnr, shall entertain of their intention in 
the meeting, and the real bona fide 
ttof the assembly when met. 
ii oaneoessary to enbip(^e upon these prin- 
\ because their notoriety has no doubt 
' this novel attempt to proceed by at- 

where they have no place ; and I 
R bdp renaarking, that the prosecutor (if 
weeotion be founded in policy or justice) 
Blad with ffreat indiscretion, by shewing 
K is afraid to trust the people with tliat 
m upon it, which belongs to them by the 
iMioD ; and which they are more \ikx\y 
t with impartial justice, than the judges 
ihedeaireato decide upon it at the ex- 
^flf tbeir oaths and of the law. 
bii'a strong expression, which perhaps, 
ii ao^lmve used in anwrerin^ the same 
jb.te onlinaiy course of busmess ; but 
M»]M aa a gentleman, 1 have no scniple 
■itiwt tlie judges of the court of King's- 

Ml entertain a jurisdiction by attach- 

dse Salter oootained in the affidavit 
sent me, without such a gross 
kboae of power, as would make 

il-Myduty, were I a memborof the 
la cdlthanloaooottiitfiNrit 




The rights of tWe supeiior courts to proceed 
by attachment, and the liniiuitioiis imposed 
upon that right, are established upon principles 
toojdain tu be misunderstood. 

E\ery court must ha\c power to enforce its 
own process, and to vindicate contempts of its 
authority; otherwise the laws would be de- 
spised, and this oUrious necessity at once pro- 
duces and limits the process of attachincnL 

Wherever any act is done by a court which 
the subject is bound to obey, obi'dicnce may be 
enforced, and disobedience punisbofl, By that 
summary proceeding. — Upon this principlo at- 
tachments issue against officers tor contempts 
in not obeying the process of courts directed to 
them, as the ministerial sen'ants of the law and 
tlie parties on whom such process is served, 
mny, i»i like manner, be attached for dis- 
obt^li.»nce. 

Many other cases might be put, in which it 
is a It^l proceeding, since every act which goes 
directly to frastrate the mandates of a coiirt of 
justice, is a contempt of its authority. But I 
may, venture to lay down this distinct and abso- 
lute limitation of such process, viz. — That it 
can oid^ issue in cases whert^ the i-ourt, which 
issues It, has awarded some process — gii'en 
some judgment — made some legal order — or 
done some act, which the jj^arty aj^ainst Whom 
it issues, or others on whohi it is bmding, have 
either neglected to obey, contumaciously re- 
fused to submit to : excited others, to defeat by 
artifice or force, or treated with terms of eon- 
tumelv and disrespect. 

But no crime however enormous, c^ven open 
treason and rebellion, wiiich carries with them 
a contempt af all law, and the authonty of all 
courts, can possibly be considered as a ooQfk 
tempt of any particular c*ourt, so as to be pu- 
nishable by attachment, unless the act, which 
is tlie object of that puuLslimeiit, be in -direct 
violation or obstruction of stHnethiiig pre? iously 
done by the court which issues it, and which 
tlie party attached was bound, • by some ante- 
cedent proceeding of it, to make the ride of 
his conduct. A coustructive extension of con- 
tempt beyond the limits of this phun princi^de 
would evidently involve every misdemeaii'ir, 
and deprive the subject of the trial by jury, iii 
all cases where the punishment does note.-kiend 
to touch his fife. 

The pecuKar excellence of the English go- 
vernment consists in the right of being judged 
by the country in every criminal case, and not 
by fixed magistrates aj[)poiiiti^l by tlie crown. 
In the higher order of crimes the people alone 
can accuse, and without their leave, distinctly 
expressed by an indictment found before tlieni, 
no man can be capiully arraigned ; and in all 
the lesser misdemeanors, which eithi^r : lie crown 
or individnals borrowuig its authority, may 
proseeitte, the safety of iiidividiuds and tiie 
iiuhlic freedom absolutely depend upon the well 
known immemorial ri^ht oi t very defendant to 
throw himself upon hu coui-rty mv il.^:ivcra:ice 
by the general plea of— -Not ijiuit^ . \>y mat 
plea, which in no such case can bedemurrad ta 



87] STATE TRIALS, 32 Chablks 11. \6S0.^Prac€eding8 agikui R.Tkm]^ 



by tbe crown, or questioned by its judges, the 
whoie cbaqre conies before the jury on the jje- 
nend Iks ic, who have a jurisdiction co-cxteu- 
sive wiih the arcusatiou, the cxcrcis'j of which, 
in every iiistancf*, ihe autboriiy of Uie coiirt can 
neiiher Iruiii, su^ierscde, contnnd, or punish. 

Whenever this cea*>es to be the law of Eng- 
land, the EnK^i^h constitution is at an end, and 
its \\enfH\ in Ireland is arrived aiready , if the 
court ot liing*$-l>eDch cmii convert every crime 
by construction, into a contempt of its authu- 
nty, in order to punish by attachment. 

By tills proceeding the |>arty oftended is the 
judge ; .creates the oifence without any . previ- 
ous promulgation ; avoids the doubtful and te- 
dious ceremony of proof, hy forcing the de- 
fendant to accuse himself; and inflicts an ar- 
bitrary punishment, which, if not submitted 
to and reverenced by the nation as law, is to bo 
the parent of neiv contempts, to be punished 
like the former. 

As I live in England, I leave it to the par- 
liament and people of Ireland to consider what 
is their duty, if such authority is assumed and 
exercised by their judges ; if it ever liap[>en, 
in this country, 1 shallgivc my opinion. 

It is sufficient' for me to have given yon my 
judgment as a lawyer upon both your ques- 
tions ; yet, as topics of puhcy can never be mis- 
placed when mugistrates arc*^to exercise a dis- 
oretiouary authority, I cannot help concluding 
with an observation, which both tiie crown, and 
its courts would do well to attend to upf>n -eTcry 
occasion. 

The great objects of criminal justice are re- 
formation and example ; but neither of them 
arc to \ye produced hy punishments which the 
laws will not ^varrant : on the contrary, they 
convert the offender into a suffering patriot ; 
and that crime which would have beiii abhor- 
red for its malignity, and tlie contagion of 
which would have been extinguished by a legal 
prosecution, unites an injured nation under tlie 
boners of the criminal, to protect tlie great 
rights of the commimity, which in his person 
have been endangered. * 

Tliese, sir, are my sentiments, and you may 
make what use of them you please. I am a 
yoalous friend to a reform of the representation 
of tlie people in the ])arlianicnts of both king- 
doms, and a sinciTc admirer of that spirit and 
perseverance which in these <lays, wheii every 
important consideration is swallowed up in 
luxury and corruption, has so eminently dis- 
tinguished tiie people of your country. The 
interests <if both nations are in my opinion the 
same ; and i sincerely hope that neithiT ill-timed 
severity on the part of government, nor preci- 
pitate measures on tlie part of the peopk; of 
Ireland may disturb that harmony between the 
remaining (mrts of the empire, wliicb ought to 
be hekl uKAre sacred, from a reflectwn on what 
has been lost T. Ebskine. 

In 1708, Mr. P^rry addrtased to the hoiL 
C J.Fox certain Queries; of which the folbw- 
uf MCoaiit is extnded from tbe Mrnidiur 
CEraudei 1810. 



Question nt to the Practice exercised 
Houics if Furliament of construing 1 
Contempt, and punuhing it by their ob 

We have stated what in the genera 

IS the true and only justification of the 

of the right of commitment for a 

arising out of libel, namely, that tl 

meaner is likely to liave such an inst 

effetrt as an obstruction, or of such 

character in ]ioiut of force as to mak> 

gcrous to wait for the skiw remedy of 

ant! therefore the lurcessity of the cast 

the summary proceeding. But whc 

diuary uibunais are in . full jurisdic 

where the constructive contempt o 

<raminittcd out of doors at a distance 

House of I'arUamcut, a mere animad 

(insure on tlieir proceedings, accomf 

no outrage, distributed by no mob at 

nor plucai-ded within the pivcinct — tl 

nieaiior, however palpably criminal, 

be left to the Courts of Justice. I 

mo* abk: Debate, on the motion of C< 

Piiipps, af^rwards Lonl Mulgrave, 

for taking away from the king's Attc 

neral the dangei-ous power of tihng cr 

formations ex- officio, as wdl as in 

debate which grew out of it, on the i 

Mr. Seijcaut Giynne, tiie opinion 

most considerable men was, tliat tli 

right ot removing obstruction by coi 

must be maintained for their own seen 

was a right that ought only to be used i 

cases ; when exerted in onlinury inst; 

public mind must revoh at the harshiiet 

cessarily depriving the subject of his i 

right to trial by Jury. This wjls he 

Diuuiing, 31r. iV'eddcrburne, sir Geoi 

Mr. Burke, ^c. 6lc, ; and inde(*d ii 

the sentiment of every constitutional 

has been recently recognised in tl 

When 31 r. 8tockdale was sent by the 

Coiiimoiis to trial hi tlie court of Kiuj 

lor a HIkI, which they calletl a brea 

vilegc, the ccmnsel for tlie Defendi 

why tlie Hou.se had not punishedthe < 

themselves ? To this the then Attorue 

replied in these words — 

" My Learned Friend says — W 
^* the liouse of Commons theinselv 
<< it ? — Is that an argument to be ui 
*< mouth of one who recommends clei 
<* Does he recommend this iron haiKl 
'* coming down upon a man of this 
*' not tomperately, wisely, judicious 
<* tlie common law of tills country ; 
*< let him be dealt with according to 
'« iiion law ? There he \i ill have a scr 
«< impartial trial : there he will have 
«( vantage that the meanest subject i 
« « to. " Trial of John Stockdak 

This has ever beeb recommended 
considerate man abo, because it is w 
that this boarted privilege can only be 
without coDtronl against their own m 
against tlidr own oooititueots. The i 
^gerons cue of a oontempt by libd < 



STATE TRIALS, 32 Charles II. iSSO.-- Privilege of Parliament. [go 



{peer they could not puniiih by summary 
nrtmcBti Nay, as has been proved, they 
4 be widiont remedy — iftheir order wus 
led by the spirit of a court oi justice ; for 
ix were to send their mace for a judc^e, as 
loose of liords did in the instance ot judge 
ieiry in 1640, would he come When they 

1798 we accuroidatetl a volume of mate- 
oa this great conKtiuitional question. 
■Mi^ others we submitted the ibilowing 
in on the case Co 3Ir. Fox, whose know- 
e if the law and usage of parliaiuent will 
Waed by all ; and when his high notions 
k» wttjjtct are remembered, lus opiuion will 
■rfvidi a lively interest: 
taoy 1. ITiough the House of Lords, as 
as mf^' court of justice, have the power 
electing their proceedings from unlawful 
wsioB, can this right extend t^ the com- 
MK for the misdemeanor of libi^l P 

Has the House of Lords, either in its 
aal or legislative capacity, any power of 
■ittBent Ufyond that of the House of Com- 
as tke lattcT never crommitting for a time 
■a. tior imposing a tine ? 
. Ills the House of Lords, in fact, any 
Ha power over contempt, or breach of 
ffcje in tlie exercise of its judicial functions, 
I in its legislative cajtacity P 
< DkKi not the principle of your bill, by 
ii it is dedaretl that in matter of libel, tlie 
k case stiall be lefc to the jury, who shall 
iMBioi; a verdict of (luilty or Not Guilty 
sw, extend to the Houses of I'arliainent 
kfefl as lo courts^so as to do away all sum- 
J [-meecding on liliel, under the coiistruc- 
t H lis being u contempt P 
i. Cn the power of smnmary commitment 

hfily exercised, or at least justly and 
^■aUr is precedent, against an individual, 
B Ifar oiere proof of his being the proprietor 
ac««|ia|ier, but without any prool* of his 
vMge «k' the matter complained of P 

KuppoMng the right of commitment to 
U esn the House of Lords couimit an in- 
U for any cause, as for breach of privi- 
, lor a term certain, and adjudge hun to 
a fine? 

What mode of redress would, in your 
isB, be the constitutional course for lue to 
K in thin case of commitment by the 
K of Lordsi on the constructive contempt 

BBl m 



Mr. Fox sent the following Answer: 

•DttrSir, 

IphsnU be exticmely ghid to be in any 

WviocnUe to you upon the present occa- 

|hA 1 cuHHit think my opinion on a case 

mtmtf w ef any value in comparison with 

^'Wtternkmai men ; especially as redress, 

Ml he had in oourta of kiw ; for, I 

VMCMUMt think that in the present 

knp there is any chance, even the 

MimAter House of Pariiament listen- 

fttBg tint can be oftied on the sub- 



ject. However, I will endeavour to answer 
your Queries — 

'M. There can be no right of conmiitting 
but for contempt, but an act which comes pro- 
periy under the description of a contempt is 
not the less a contempt for being also a mis* 
demeanor. Indeed it is difficult to conceive a 
contempt which would not be a misdemeanor. 

*' 2, 1 do not think the House of Lonls in 
any capacity has powers of conimitnieut be- 
yond the House of Commons ; but, I believe, 
such powers uf commitment have been exer- 
cised by it, and I fear without the reproof which 
such cxerdse ought to have drawn from the 
Iluuse of Commons. 

" 3. 1 should think the House of Lords has 
no more poiver in its judicial than in its legisla- 
tive character, in respect to bi caches of privi- 
lege and contempt^, if in truth it can be pro- 
perly said to have two distinct characters, which 
1 doubt. 

''4. My hbel bill has nothing to do with the 
jurisdiction of the Houses of Pariiament. Ita 
principle, however may be urged as an argu- 
ineutto induce a court to be cautious of judg- 
ing libel without the assistance of a jury, ex- 
cept in cases of great urgeucy. 

** 5. 1 shoidd think the question of a pro- 
prietor of a uc^vspaiKT being cTimuially res- 
ponsible for its contents, a very doubliui one, 
and indeed I should strongly incline to the ne- 
gative; if the ])oiat had not, as 1 conceive, 
been often determined and acquiesced in. 

" 6. I believe the right of tlic House of 
Lords to tine, stands solely u()on practice, and I 
have little doubt of its being nu usurpation ; as 
to its right for committing tor a term,! have 
given my opinion in my answer to Query 2, 

'^7. lhepi*o[>er channel for redress against 
the House of Lords, is a |iet(tion to tlie House 
of Commons ; but that in the present state of 
things cannot be thoii«rht of. U hether or not 
there (*an l>e a civil action against the gaoler for 
false imprisonment, is a <iuesiion tor profes- 
sional lauTcrs ; and ui)on this a good deal of 
the old dispute on the case of Ashby and White 
woiikl coine in play ; witli this material diffe- 
rence, that the objection, which was ui^ged in 
that case to the possibility of tlie House of 
Lords, in case of appeal, becoming judge of 
the privilege of the 1/ominoiis, woiuil lie here 
as strongly (though in a ditierent view) to the 
House of Lords becoming by appeal judge of 
their o^vn act. 

*' I have now answered your Queries as well 
as I can. The conduct oi the House of Lords 
seems to have been very harsh, especially aa 
the paragraph in question, I understand (mr 1 
have not seen it) to be of that sort from which 
your paper is of all others the most free. Bui 
harsh as it is, I do not know that it is contrary 
to precedent, or otherwise illegal, than with re*' 
spect to the term and the tine, and I do not 
know that my opinion upon these lit^ds is tlmt 
of any other person, much less the general one. 
Every court appears to me to have usurped 
powen m cases of contempc beyond the ne* 




91] SrATETBlAL&,3fCnAmLE5lLl6sa^^Pr0€ndimg9^gmimalLTtm^9ai 

m the cnuit ; die gnrtlam 



flf the dee, waA the Home of I»nb ' 
mor«thaoany ochix, poevfalj. becauKtheteis I 

iioappfalfrauil,ejEcie|ittopaHaaM!fit,ofvh^ . haB were fftiified that thii wis right, 
they make a P«t. Bt the waj' it isobiimble, Pw>cttDW« ff the Hocn or Comxox 
CbattheflcmjeOT C>inziioafy whiHiofallooiiiti ! ccbxdsg Flotde.* 

haxbcxntheiiiottiiioikvateinexeflrtfleorpower i i^/i«r i r^i^ i 

of tfaM«ffirt,tt the court whose power and rvht [Frvm Ike Oxfmd lMbai€M.\ 

has ofUmfst bee& caDta in questioD. Mr. £r- Ifoaitfjr, J^il SO, 1691. 

«kin«:'« nMe ktter ier?ii» to relale more to There k dei i T ei ed mto Ae Houae, a 
ordinary courtA of justibe thui to the Houses or Note of thenid acandalooa Hpeecbei 
ot'l'juiiaineta ; but even in die caw of such .' against the FdigTanrc, and the bdv Elis 
oourtK, if a man fr#Te to write oontamaciovuly | in which it is set down, that one filward 
ol' i}u: manner in which a judge eave judg- ' a gentleman and p i i s uii e f in die Fleet, 1 
ment, 1 Husper.t be w«nild certainly Ee attarhed wiOi Dr. Pennin^^toa ooooeming the ] 
for a contempt ; thifUjS^i this case is not men- i Pn^^, did say, m a soomfiil and ma 
tioneil by 5lr. Enkine, nor does it come, manner, * That Goodman and Goodwift 



perhaps, strictly within the line of his argu- i ' gn^^e were now turned out of doors ; 
meat. Now it this be so, it is clearly a con- ' tl»t purpose ; with other diamoeful spe 
tempt of the House of Lonb to animadvert > ** diat he, the said Floid, had as much ri 
eoDtuma'riousiy on the speeches of its mem- j the kingdom of Bohemia, as die Pabgrai 
hffTH, and perhaps more cteariy than in the other ■ This is testified by one Willis to be i 
case, inaiimuch as to print the speeches at all is by the said Edward Floid, a Papist, 
a brMicli of Privilege. In compliance with ^r JUdtcin Sundjft saith. That we wi 
vour vi'i«»hm, I have ;^ven you my opinion at meddle with the words that were spcricen 
kri^c, which, howe^cT, I consider or very lit- i Palsgprave's right to the kingdom of Boh 
tie val ic, ami indecfl all the questions of par- hut only with the scandalous speechea ai 
ticutar and dHiilc I usurpations and abases ap- j graceful words used by Floid against th 
pear m me lo liecoine of little moment, at a - - - - 

time i^i;pfithe whole crmhtitutifTU is in such a 
depkirahie sua(% l'li«» pmceedings against }'ou, 
lKuS|>e<-i ifi Ik* only a bi'^ning, of a persecu- 
tirm a^Hfii-.t t:i#> liiiierty of the press in general, 
and a part ot that .system of terror which our 
rulers aie bo fond of. C. J. Fox." 

For inoie n'spitting this matter, see the 
CoM^t of llarnardi:4U>ii and Soame, ante, vol. 6, 
1163 ; of SliirUfy and Fajjg, aii/e, vol. C, p. 
11^1, anil the other cases there mentioned. 

In the Lords' Journal, under date March 23, 



p. 1600, It appears that a Cummittee of IVivi- 
legesn'iH»rUMl their opinion that the Privilege 
of tlie House ext«;ndc^l to exempt a peer's ser- 
vant being a householder Irom service of pa- 
ro(*hial ortiireN, but the House did not agree 
with the Couimittee. 

IHus Case may be found to lie not immaterial 
in the (^insiderutiou of Privilege of Parliament, 
and of the coiuumhility elsewhere of ques- 
tioiiM reHiMMrting such alleged IMvilege. 

Mem. Ill archbishop Seeker's Report, 
(inserted in Cobb. Pari. iJist.) of the debate in 
tlia House of Lonis, May 25, 174?, upon the 
second rcailing of the bill for indemnify hig per- 
sons who Khould make discoveries oonoeming 
the earl of Orfonl's conduct, it is related that 
loni iliuflwicke, chancellor, mentioned the fol- 
lowing Case, which 1 do not recollect to have 
•ec«i ill print : 

** la Chanc<Ty, in the Case of Sacheverel 
and Pool, a man published an advertisement 
that he would give liH)/. lo any man that could 
flivc evidence in relation to such a mamage. 
The other side moved the court upon this as 

. * As to the commitment of Mr. Penry see 
11^ 11a grave's opinion in. the second vonone ' 
of bii Juodiiad Aiigumenti and CoUeo^^ , * 



son of the Palsgrave and his lady. 

Edward Floid examined, denieth, T 
ever had any speech with any of the ] 
who are alled^eo as witnesses against hii 
one Wilkt, Coale, or Dr. Pennington, 
ceming the Palsgrave or his bdy ; and 
That there wa.s oue Williams and a ¥ 
present at the time, when Dr. Pennin^^ 
this examinant should s|)eak those disgr 
words. 

Jiliiy 1. 

Dr. P«naiii;^^ofi, a doctor of physic, 
mined saith, That he aud Mr. Edward 
having a conference in his chamber, th( 
Floid told this examinant, that he hean 
Prague was taken by the emperor, aw 
Goodman Palsgrave had taken his heel 

* Among the Harleian manuscripts, d 
a collection of the proceeding in this ren 
blc case, by sir Harbottle Gnmston. Th 
appears to iiave belong*jd to Robert Hark 
terwards Lord Treasurer and earl of Oi 
who, in the first page, has written his ce 
of these proceedings, as follows. 

At the tim of the Tide : 
' The following collection is an inatanoi 

* hx a zeal against Popery and finr one h 

* of the royu family, which was suppoi 
' be neglected by king James, and conseq 
' ly in opposition to him, will cany | 

* against conunon justice and humaniw. 
Jtt/y 14, 170S. « K. : 

At the bottom : 

* For die honour of EngUrimien and i 
' of human nature, it were to be hoped^ 

* debates were not truly taken, there bn 
' many motkms contrary to the hm* € 

land, the laws of Parliament, and puUh 
tioe. ICHaRUT.* Jufyt^tf 



run away, and that Goody Pal8gra?e was 
n irirUuDtfT ; anil, Uiis examinant wishing 
. Iiiiuself and all other able men were 
nii to q^n thithf^Ty and not to ret\im till they 
, rtiici-med her, the said Floid said, tins 
aiiDADt wan a fuol. He saith, tliat th<^se 
[^ wire spoken in the hearins^ of Mrs. 
M^cun, an attorney's wife of this town, 
snitk. thut w hen these wonls were spoken, 
r. Fluid ami this examinant were good 
ends, and that he went at tliat time to Fluid's 
amber, as one prisoner to \i.sit another: 
Vtt We toU tlie Warden of the Fleet of these 
rgnk ibr next day in his dining chamber, in 
of Mr. Pinehback and Mr. Wil- 



■11 ; and that six days after the Warden came 
»dHi examinant *s lu'd- side, and desired him 
lid him all the speeches that \u'vc spoken 
r the said Fluid concerning the Palsgrave. 
Ie«iih, that Floid spake these words with a 
fjfid countenance. 

TW Warden tj' tht Ficet, examined, saith, 
IWi k first moved Dr. Pennington to know 
hr tnift of diese speeches iisod by Floid, hav- 
ifaDdcrstood of it from a servant of his ; and 
HI Dr. Penninston did never acquaint this 
CttBiMBt with the said speeches of Hoid, till 
b Wfast nio^ed him of it : That his servant 
LenJK Harris, his niece, was the first that ever 
M Um of it, and that Dr. Pennmgton did tell 
Vi cnmiiBnt, lie had written a letter of this 

Dr. Fcnnimfiton examined, saith. That he 
U homnr a Chronicle of the Warden of the 
VIki, to ice whether Volti^ was a Saxon or 
iUlbih king ; which he desired to know, be- 
CHKif a conference held between Floid and 
kin: ni diat he, this examinant, did then 
toFM of his error in that discourse, 
C the time when he borrowed the 
be acquainted the Warden of the 
fhfl vidi the speeches made by the said 
rail. 
Sr Bimard Cooke saith, Tliat he hatli 
lias Floid long ; and that he is a per- 
FipHl, and a barrister, but a wicked 




STATE TRIALS, 32 Charles II. l6S0.^Privilege of Pariiament. [94 

grave to be king of Bohemia. And tins exa- 
minant saith, he told the Warden of the Fleet 
of these words, and' also of the sjieeches that 
were spoken to Dr. Pennington r»y Floid : the 
time when he told the Warden of it was (as hie 
remembercth) about tiie 13th of January last. 

May 1. p. m. Sir Arthur Inpu-.i s;uth, 
That the committee appointed to search Floid 's 
trunks and pockets, found in his pockets beads 
to pray on ; and Ihf'y liave found divers pi)pi8h 
books and beads iii Xwc tiiink, and other popish 
books hidden in his boil : — Tliat Brou^hton, a 
prisonei lu the Fleet, saith, that \)v. Penning- 
ton did tell him, since Christmas, that Floid 
had s[)oken the said dis<jp*aceful words of the 
Palsgfrave: — That Mrs. Broughtou said, that 
she heard Floid s)>eak of the Palsgrave, but 
dotli not remember what he said, biecause she 
was then looking out of the window to see 
some play at bowls : That one Hardiman, a 
poor man' that was wont to help Floid, make 
Iiis bed and do him such like service, did hear 
Floid lauffh heartily, when one calle<l Fryer 
told him, that Prague was taken by the em- 
pemr's forces ; and that then Floid said to 
Fr^-er, What will thp lad do now? now Bess 
must come home asfain to her father. And 
tliat tlie said Hardiman said, he also heani the 
said Floid sneak those disgraceful words of 
Goodman Palsgrave and GoodyPalsgrave,wheii 
the said Fryer was with him. 

Ed. Floid, being' on his knee at the bar exa* 
mined, and charged with all the proofs before- 
mentioned, saith, That he knoweth not Har- 
diman by his name ; and saith, that no maa 
ever used to make his bed in the Fleet, but onhf 
a poor woman. He saith also, that there n 
one Dr. Fryer that useth sometimes to come to 
him, but denietli all the words wherewith he h 
charged, * 

Mr. Hackodl saith, That Lettice Harris 
saitli, that she did hear Floid speak thosa 
words within this half year, viz. Goodman 
Palsgrave and Goo<iy Palsgrave; but saith, 
that she did never tell the warden of the Fleet 
of it. 

Sir Kobcri Phillips saith, tliere are in tbw 
business three things to be considered ; 1. The 
offence; Q. The ])ersons offende«l ; 3. The 

Eunuihment to be inflictoil on the ofTeuiler. 
*or the first that Floid hath spoken derogatory 
words of the king's children, in dmling 
them by the name of (loodman and Goody 
Pblsgrave: For the second, tliat we shonra 
remember and consider in our sentence^ 
that the iiersons, whom he thus deroffited 
and vilifie<i, arc tlic hopeful children or our 



Mt,T%amat Crnrf saith, That, if we arccarc- 
U U pmish such as speak scandalous s])eeches 
tf mign princes, then ought we much more 
hke severe to those who s^iak contemptuous 
^ii of our own princes. 
Dr. in//ij examined, saith, That Dr. Pen- 
told this examinant of those speeches 
d'a, and thf*n told this examinant also, 
\kt had told the Wanlen of the Fleet of 
words ; and ijiat one FruncLs Allured 
K Jo. Broiighton and his wife can say 
if Fknd's rejoicing at the ill fortune of 
ive and his lady ; and that one 
■ will testifVt tliat Floid hath lieen 
ny, and ilrioking of healths, vhcuever 
hath come from Pratrue. 
, bachelor of divinity, eximiined, 
Floid told this examinant, that 
C or any nobleman of £ngland had as 
dfktto be king of Wales, as the Pals- 



I 



prince ; a laily lianlly to Ik; eunallcd, uol to be 
excelled : I'hcthinl consideration is tlie punish- 
ment ; wherein he would have us not to foiget 
tliat the party to lie nuiiishfd is a constant 
knave (for aft he hath [>een known to be by 
many memlMm* of this House this many years) 
and a constant and malicious fuipist: Tliat, 
since his oflence hatli been without limitation. 
Ills punishment might likewise be without pro- 
porUou:^Thai luj would have faiin ride^ wil]jL 



95] STATE TRIALS, 32 Charles II. ifis 

hb face to a Iiomc'i; tail, fnmi Wcatminiitcr ti> 
IheTowiT, with ftjiapn' iii liis hat, uhntHn 
ahuuldbewriltpn, ".A t'oiiish Wretrh llmtliath 
" niahtioiislj' Miitulalizf-d lib innicKty's rhil- 
" dren i" amt thnt at the Ttiwcr lie should ht' 
ImlgH iit littV eaw, uitli as much |iain as he 
shaT) Iw nble tii pniliirr, uiihiml Iihs or (lBDtn.'r 
ul' his lift-. 

Sir TAo. Jton-r niovt^h, ihiil, aincG he wan 
committed to t)ie FIn-t liy llic LortUiif tlic 
Council, hewiHiM Iihvc lu wnil tn the I^rcN, 
and renin' willt tltt^ni limi-hing tlic jiunishint-iit 

8tr livdley Digi intvhi Jiavc us firsl to uc- 

Siaint tlic L(>nlii n'tih tliii tiuHini^ atiil make 
no liattiTK in th" h"ii'inr of puuiiliing mi i ile 
«mI nmlnlirul a Kutiit-t-t. 

Sir Gfafge JlfurcMiiih, that <m cvtraonlinar)' 
causes we iitnv enluT^t- :.rtii innkr |iteciilenlH ; 
but (iMtrc-th, that, by I'^tctidlii^ uur jMnvei* in 
tirM, we take licij that wrdo not iin;iiiihc<-tlwl 
of the Lords. Hu uoiild have Fluid whipped 
from hence In the ]iiace wbtoct- ho came, and 
would have him so left to the LorAi tnr lailhcr 
punidimenl. 

Mr. Rawniertift nould have him fmrd 
1,000/. and so liis curporaj piinishnDeril to be 

Sa i'rancii Stymour woiiM liave us prniit^h 
Um u tmr as the power of our Iloiise will e\. 
tend ; fur lie nnuid have us now, if wc would 
at any time. Bland on the pmileffe and power 
of our House. He would have him (^ ftnm 
hence to the Tiiwer at a cart's tail, wiih his 
doublet olf, his beads about his neck, aud 
■hai he should have so many loslie^ m lie haih 

Mr. Salter would hare him ride mi a horae 
{with his fa« to the hoiae'ij tail) to the Tower, 
and be whipt, nnd thereout in tiUle ease. 

Sir Eds-ard Cilei n-iiiild bare him stand in 
the pillory here at Wwlminsier, two ar thrci- 
hours, lllen lo be here wliiw with as manv 
lasher as he hath beads, and I u be so likewise 
whipt at the coHrt ([ate, and at the Temple, 
and would liB»e him nvtimmitted In the Fleet, ftr 
hewwuld not winb any man In cortieintoatrnrse 
pnsoa. 

Sir T/iamai f^lmmmt UoWv uwvcdi, that 
we should iMonunit him tii iIm KInri, ihetif ii> 
brki^ in tfmn ii - ' ' hm would 

leihepajB-- 



\~Prottedingi again 

head with a T or a D, 
lontrtie, aud anteeth w 
and sii- Fruuebi Heymou 

Sir Otorft Guiing 
cars, cm! tou^ic cut 
maiiyKlagn.'sasLehalhl 
Ktagv with his fece lo il 
tail in his hand, aiul at 
a bead ; and thus to be i 
(hereto behan){ed. 

Mr Jo. Jephuin aaith, 
that a committee mi|^t 
of the heaiien |<un]sh 
spoken of; but, lieca 



nctln.'dlu 



litndtd a^cninM tlie nmla 
no (ess than to tlie Tu 
him hare a pnj'cr writi 
his iiffcncc. 

'■At. Jo. FiHf/i »ailh, 
tcsliinnny on oaih B|ra 
liaie in put aiij rorjiu 
bnt all tlio itcnomininus p 

tUTJchnSlianfifbtii/i 
iicier a precedent made 
and he hopelh i 

ami therefbre wouhl hai 
tlin>iinhtiicton<pu.'. am 

Kir Jo. Waltert saitli 
lo onr adt'ersarics, am 
have us punish him wi 
bdt wmild have all hi> 
lh<:PaIs(TaT.-,i;irtol 
cover the I*3latinBti' ; 
wliipt for liitig'hin;! a' 
by to make him ilii 
endure all tlic i^e 



I by 



>rbb>.', 



ndu) 




A'/ord ^y 
canse he hath laix 
g:o as far for tlie p 
cedent-i will w.v 
ai,'r«.tli nitli sir 

Sir Kdnin .' 
which shall bf 
allChrii>tenil<>' 
is the ipDuntl • 
doio, which 
would not hnv 
Lonla, who ai 
of Floiri thith 
pHniahinent ' 
wereioinaki 
■fa- Jo. »ah 
saving hi* w' 
impriper fit 
he were de-^ 

Sir Fra» 



STATE TRIALS, 3S Charles TI. 1 6S0.^Privikge of ParliamikL [g8 



i. MamulagMt nith, he thinketh we 
iciuuif « the kingf*s prisoner to another 
nd thb Floid being' by the Loids of 
cfl eommitted to the Fleet, we may 
re him to the Tower, 
ntered and adjudged, Tliat Ed. Floid 
iftimied this night to the Fleet, there 
lohon's ward, and to-morrow morning 
Westminster bare ridged on a horse's 
b his face to the horse's tail, and the 
hand, and to stand at Westminster on 
jr, from 9 to 11 of the clock ; then to 
le same manner to the Old Exchange, 
to Itand two hours more in the pillory; 
Friday to ride in the same manner to 
e, i&d there to stand in the pillory 
iTtbe clock in the morning till 12, and 
de lack thence in the same manner to 
t ; io htive a paper in his hat at every 
taB places, and another paper on the 
bt inscription whereof shaU be these 
For fi&lse, malicious, and despiteful 
H against the king's daughter and her 
1;' to be fined 1,000/. to the king: 
KQtence shall be seen to be executed 
lerilTs of London and Middlesex, and 
farmer committee shall draw a warrant 
irpose, which shall be subscribed by 



ancii Kenniston movcth, that, in re- 
t Ffoid's son hath married a gentle- 
agfater of worth, that his grandchil- 
r wit feel the weight of the fine, 
^'/i/for (f would have the Warden of tlie 
cad the horse, as Flnid rideth. 
ranai Went north desireth, that a com- 
laybe appointed to collect the reasons 
V censure (because there wiU be many 
sttcres on the same) that it may re- 
ar to posterity. 

ffdRvd, and a committee appointed to 
i the proofs, testimonies, causes, and 
if diis Censure, and to present it to the 



Sentence was thus agreed on, the 
id was called into the House, and on 
at the bar heard Judgment pronounced 
ipeaker. 

HTarden of the Fleet is commanded by 
■e to put FkMd in Bolton's ward, and to 
ind attend him to the sheriffs of London 
kllesex, till the sentence be accordingly 
d on him. 

JIfsry fi. 

ChnoeBor of the Exchequer dellvereth 

Kfrem his majesty ; who hath taken 
Nioe of what n-as flone liere yester- 
That he gives this (hiusethanks 
of a king and of a father ; and 
b dnire, that our zeal to him 
nport us to inconvenicncies: — That 
■re lis fint query, whether tlie 
h» Rouse can warrant lui or give us 
■taee one who is no member, nor 
IhI this House, nor any member 
■f ^laji whether we con or will 



sentence a denying party, other than on oath : 
— That the Lords iiid desire sir Henrj' Yelver- 
ton, because he was the king's prisoner, and 
would not meddle with him tUI liis majesty had 
commanded him to be delivered to them ; and 
his majesty would have us to consider wliether 
we wiU not shew the like respect to hismajes^, 
Floyd beuig his prisoner, as standing commit- 
ted by his council. He would have us leave 
this to him, and he will be careful to punish 
Floyd according to the greatness of his fault. 

The Master of the Wards drlivcreth a record 
from the kin^, which his * niajesty commanded 
him to acquaint this House withal ; and saith, 
that the kiuc' saith, that he will, on ^iew, con- 
firm what Pri\ ilcges we have, and would have 
us rest assured of it. 

The record sent by the king goes somewhat 
to this purpose. 

* Rotulum parliament! 1 H. 4. Que les 
' Commons ne snyent point parties aux juge- 

* mcnts ; que le jiigement appartient seulemcnt 
' aux seigneurs, ou seulement au roy mesme, 
' excepte ou le roy leur donne speciallement 

* authority.' 

Mr. Atfnrd desireth, that, since our ship 
hath touched on a rock, we may come on 
clear : That there are precedents where the 
king hadi pardoned the party, whom the 
Houses of parliament have judged ; and tliat 
he wisheth nis majesty would do so in this ; 
for that it is expected that othcmise oiir sen- 
tence should be execnted. 

Mr. Noi/e saith, tliat there is no doubt, but 
that the king may stay execution of judgment 
gfiven ui any court : 'That, in the case of La- 
timer, the king did pardon the offender ai^er 
judgment given by the court of parliament. 
He would mat we should send a Hupersedeas 
for the stay of judgment, with this reason in it^ 
because it hath pleased the king to spare the 
execution of the judgment we guvc. He saith, 
that we may judge our members, or one that 
' ofllends acainst this House, or a memlier of it ; 
but in other cases, and of other persons, he 
thinketh it bek)ngeth to the Lords ; and shall 
be of that opinion, till he secth !:ome precedent 
to the contrary : That, since we have given 
judgment, he would have us appoint a commit* 
tee to see, whether we liave done it justly or no. 

Sir Henry Poole saith, that he liath heard, 
that we and the Lords did sit all in one house toge- 
ther, and then wc did give juilgiiicut with them, 
He desireth a committee may \w cppoiiited to 
seek forth precedents fur the same ; for, if 
we were once joine<l with the Lords, and liave 
given iurlgment with tliem, then ho would have 
us seek how wc parted wiih that po^er. 

Mr. JIackKell won\i\ not have a committee 
appointerl to examine what wc have done* ; for 
he hath been a diligent searcher for precedents 
in this kind, ond can find none ; but he would 
have us .Hcnd to the sheriffs presently, by an 
order of tliis Housfv that we will, that, for 
.cnu9esbcst knowji to ourselves, they should 
forbear the execution of tb<\t judgment fill they 
hear further from us. 
H 



99] STATE TRIALS, 32Charle8 n. l€SO.—Pro€eeding$agamii ILTiM] 



any part of it would but lay a s 
juogiufint of the House; and t 
would have us send to thekin^, and 
since we have been a dutiful Pai 
would be pleased to confirm the S 
have given. 

Jlffly 2, p. m. 

It is agreed, by question, that tl 
accomuanied witfi some of this Hor 
to the Kifi^ with a Message concen 
sincss of Fluid. 

3Ii-. A^n/f woidd, that we shoi 
majesty full Answer to the Kecon 
should*sicfnify to bis majesty, wh 
done in thii» |>articiilar ; but, ibr th 
his majesty's queries, touching ilu 
of this House, to acquaint his lu: 
the Sentence beiuff exc'cuted, Me % 
convenient speed, labour to «itisfy 
by precedents, in all the rest of the < 

Sir Ktlvard yiouHtague saith, 
ancient course of Pariiament we n 
no warrant for to j point what number shall go in a 



Sir Kd, Sandt^t would have present answer 
given to tlie Shcriflfs, as Mr. Hackwril spake ; 
(iutl that in the afternoon we should acquaint 
tho fjords with what we hnvc done. 

8ir Edw. Omke wisliHli, that his ton^ie 
may cleave to the roof of hLs mouth, that saith, 
tills House is no couit of record ; and he that 
!:nith ihiit House hath no ]H>wer of judicature, 
uudcrstnuds not liiniM'lf : for, thougik we have 
not such pitwer in idl tiling, yet have we 
power of judicial un* iu some things, and there- 
I'l.re it U a court of reconl. TIic RinsrVbench 
can nie<ldle with no rtnd actions, nor the Com- 
inon IHeas witli any business concerning tlie 
cniwn, and yet are' they courts of record : 
That no liU;rty can 1m* taken from any court, 
hill by ai't (»f pnrlmnient ; ami this record sent 
I tlh(4' hy the king i< no a^t of imrliament, and 
t!icn»forc nuinot pi\;iudii*e our iilH*rty : • MuUi 
' tmiha, ivtuo omnia nont :* That Ke knoweth 
thai this Is 11 court of roi*onl, or else all tiie 

i«o\ierand IllM^rty oftliis House were overthrov.n. 
[]c Mould ha^c no suprrsfdeut to be sent to 
the shci-ttT, btvause he hath nc 

SiH' the e\cHnittoi> of the s«nitcnce nn Floid ; but i the king, nor when, norlto ^hat 
\i\i\\V\ have a nics!«^ sent bv ntvnl of mouth. ' those t£ings always stand in hi 
iliui wo Mill span' tlio shenrl'^s attendance till pleasure to appoint.* 
another tinu\ m hen they shall have further It is orderetl. That all those of t 
HAntiiiir. who are in our House, shall go t 

1 1 IN (»nUMv>«l acconlingly. and a Messagte by , to signify to hi& ma)esty, that ne 
wi^l ol* nunuh is amu to the sheriffs by our , all this Aoust* with theSpeaker ma 
urduT («r siTJcant. that we discharge their ' majesty: or. if not all of u«, then 
;iiic!iilMm>\ till Mc shall gi^c them further - his majesty w ill appoiut, ar.d at tl 
w.irniiur< platv his maK'>;y «4)ali sol down. 

Sir K ^'t r'.a^j'«movoih that since we ha^e ! 'Hie Mat i"' of tKe Wurd* wou 
i:i»cn li^iiuHmy *it* our dui:c« to the kingmoiv Mt'ssaiiv. uliich wt send by the 
than an\ pnxxsk^it d^Kh shrw of the like to the king, to 1^\ dial our love an 
au\ kii^r* he thiuk«Hh ii i:\h^ that mc beseech tliegniind of oiu- juilgiuent ; and 
S.s nMK«i\, on ftt gxvxl an oiv^siim. to give desire his uuk^iy to deal with us 
1^ lear«* lo create thi< px\v^\li.^t. that our jud^- hoivui : b.^t bo ^tould havc us tirs 
ii;ou; ami seo!dK>e' may ut«C he 9can«'.ali/cU. s^n r Co th«u V^'^r it KcvotJ that ! 

Sir h,i M*m:,:Kfir MO\tM ni^ lia\e us to g» It is on^i r.«!. vml a t'ommitlL-e ; 
t.^ '.he Ia't^U: It is u«^ piviudi.v for us to sia\ ^.' i^:t^;.;'.y !.^ unvr the ^lessagc 
k'l <r.\tvuikHi : am) thcr^iinv he vrouM ha%e u* SjH>Akor shall di " \ t r i> the king, 
^i". (ilrtV^ncvl>f what »e haic d^we.an^l iv^nvun- Mr. S-v*''.\. i r\*;ji-.n«.th the kii 
tA;i^ «Hir lutiK^nirtii and :i«mteuiV^ k> fnuH* a laU tc» the Mcsso^ . lii^c ihe kir^g i« 
ti>lhise.*ftci« aad ti^ds^^iaich iho sauio Miih all pkr.s«xl. ihs.: *i :!.e Ht.'-J6e, accon: 
ailifJiiMM . ihc S^«-Aker. <hui: o me h> speak v 

Jir. iVfwv saiih. that «Y dix-liue i\\^u whai mwiv'vi.v.^jv^ua: um* Ccitsure gi 
vs lave «liMe« il' «e shvogihe e . ii b\ a Nill. H^hsso ««& Yr>A. ii\ tl:e atkx&oou at 

Hr. j^4irts«v «vuM ka««- us c^t to the kitv ia ^^ hail ai \\ ii.^;:ball 
mh tlndfei Av hw ew«. and io*Vt his maie«y • ^w , 

be mr^fmmu i with the waswas t^' our jwian>Httf, '* • -^ *' 

mmI to Abmit hia qm^mct io \vcinnu it. He IWsuKtfasxv i^'iLe Message to 
n\inf( a bilL hMi ihmks a wJI Se* Vv dw* S^ Aer. trvoi this. Hvuse t 
eilAMft. Yo M\^-v:4 to t.2^ mj^ea4^-. first, 

Mr. AacI wUk thtt it b«di bv^ta nrMh«0 ife^u*:s twv ha ctsl-kc^ e-vpRssims 
> tW Kiiy% HmcK that a Uab«<w iV^cycs ssi:x:.^3c <*' '>^f «i&j;iv«s:^«i aui a#« 
leMBlMl i» iwume a ipnAWM'^MK*-- S:sikTw «'xv-{i «».ls ^\ U.^ Ho« 
b^UwWeiAsvf^OMmta lie wwu^i lVvi« ib< UMiicucs zv^l^ of hi 
w ft» hwrrcb hw M^pnex t» ow wWtwx- oitXsvB T.* 9^w its nibMa3-. thi 
_, _ * biwi»^«i^ il^t ,^|||. j^k,|g«wc; sH? ^i^ez^ o«" lie Hmjat to excMd 

MMMe iwn W |^ m ex««%K»Mk saiice u^i" s»c ?.» w^ *?> r^jr-ier jvwtr so ou 
ImmjAm MR«I* tWK asal n^ W w^c^.« ch^^^. «v «!: »k £:^«d» tke jur 
tt^^^^^'^'sv^ ..i..^ *<i:w^H.v3«. \«t »t bi^uebST she 

«e Ilfewa»«v «oi >WM ;ia .:v:« . M;i.2K s jib* m 





It plaaed 



101] STATE TRIALS, 32 Charles II. iGSO^—Prhikge of ParlioMeni. [102 

nishment : if our precedents be good, and done 
I in a [icafxiuble time, tbey are lawful ; biTt 
j reason (wlierebj^ we say we will sbew tbat we 
have power to judpfe the said cause) hath so 
great a Utitude, as he knoweth not how to an- 
swer it ; for it is both his opinion and ours, if 
judg^ fro to reason, and leave point of law, 
they wander. Hciivould haTC us seek forth 
precedents to shew the same : tliat his ma- 
jesty even now received a Petition from Floid, 
who confesseth the deed, but yet would not 
have us condemn a denying man, but by wit- 
nesses on oath. In the mean time (till we have 
presented to his majesty a Petition of what we 
desire) his majesty will see such punishment 
uiilicted on hun as we sliall think enough. 

May 4. 

Mr. Secretary delivereth a Message from his 
majesty. Tbat his majesty, as soon* as w« 
were yesterday parted from him, gave order to 
his learned council, to see whether Floid had 
confessed the fault (ibr which this House sen- 
tenced him) or no ; and the Petition which was 
delivered yesterday to tlie kinfic, (and which his 
roiyest)^ yesterday mentioned) was not from 
Floid himself, but fit»m Fluid's son : but Floid 
himself at:,solutely denieth the words, and there- 
fore his miyesty will send it and hiui to the 
Loi'tls to-morrow, that the witnesses against him 
may be there examuied on their oallis, anil thr.t 
Floid may be punished as severely, or more, 
than we aii[judged him to be : that* his majcsry 
expects our Answer, touching our sending him 
a petition, and concerning our miHldiing with 
Floid, he bi'ing his majesty's prisoner. 

Mr. Solicilor saith, that he and Mr. Attorney 
did, by the king's command, examine Floid, 
who (feuieth absolutely the wonls for which he 
is here sentenced ; and the said Floid dotli 
also deny another business wliich Mr. Attor- 
ney did put him in mind oi\ and had under 
the saiil Floid 's owii hand : that the king f aid 
he did the less beheve Fl(»id for his denying 
that other business ; and that his majesty saidy 
that, if we can find out a better way for this 
business of Floid than to go to the Lords, 1 e 
sliall Uke well of it, but would not have us con« 
demn a denying man without witnesses on 
oath. 

SSir Robert Phillips saith, that we censured 
Floid out of our duty and respect to the king 
and his cliildren, wherein we shewed our lo\e 
and our duty ; but we are untbrtuuate. 

Mr. Alford saiih, he will nc\'cr consent tiiat 
we should send this to the Lords, for that 
would lie a scrandal to our judgment ; and that, 
if we sit down tlmt tlie Lords may have it out 
of our hands, we are umvorthy ot being parlia- 
ment men. He saith, he must say thus nmch, 
though he never speak more. 

8u- Dudieu Di^i saith, that we have done 
hei-ein otir best; and, though we have not 
done such as may be e\(K:utetl, we ha%e yet 
shewn ourselves gtKid sultjtrts ; and thcret<»rfs 
he wouUt have us go on with what may be 
good for the commonwealth. 



To desire humbly, that his majesty will 
to streDgtheu and countenance this 
siDoe the ground and cause of it M-as 
■or fervent desire to express our humble an<l 
kuty aficctwDS to his majesty and his chil- 
cen. 

Mr. S^retary saith, that the king hath in 
ihii partkuUr made a question of the power of 
•or Hook; and ibr us to stand u^Mn this 
fvvfr of ours, be ho!deth it untit, unless we 
wot belter prorided with precedents than he 
lUeifa we can have ; for, if the king should 
kan il, we are for e%'er barred. 

nc Atsj'rr of the H^ar/^t saith, that in this 
Mkh we have to deal with the Lords as well 
■ ifcekiDg ; for this 8entence of ours doth 
1 tMr lordships and the privileges of 
HooM : That our desire to have our Sen- 
confirmed, is in a manner to desire to 
a new precedent : He would have us to 
itte wotdkk a care to satisfy all, as that the 
^Mk wtKf not daim that their privileges are 
ilBHtod in this business, whicn, they may 
fnhifs mjj appertained to them. 

Mr. HmckweU saith, tliot the precedent sent 
li«ky fak majesty doth not bind us any more 
te k doth the Lords ; for in it is expressed, 
Lords could not judge alone, which the 
_ practice since sheweth to be otlier- 
; Inf we cannot shew any practice that we 
hnt ikHie ghen judgment in the like case to 
wiof Fhiid. 

Sr &. Mount agve saith, that the intention 
tf the Committee, wlw penned this Message, 
VM niher to rely on the king's favour, than to 
ft^MAJustilication of what we have done. 
Sf EArard C**oke. saith, tliat, by the Paper 
Mlliqi by the king, it is set down, that we 
iMtia ytwer of judicature ; but every man 
^' ' that we have judged those of our 
', ami ot Iters also tor a contempt or 
■gionst this House, or any member 



J/'iy 3| pt m. 

IWSfedter deliTercth our Message to the 

or whole House being present. 

Speaker's speech vhl. fol. 158 ; with 

ibtt we think the Record sent us by 

^ is no other than an Answer to a 



"K 



MisB exhibited by the Commons *' That we 
Mseck, that the execution of the Judi^cnt 

r' a by us on Fk>id may not to be deterred, 
Aediwomfort of his majesty's Commons, 
MjhtdiseoiiTagenientof that House." 
''^^ 'Knganswereth ; That he ever speak- 
I kit heart : That he will shew at all 
I w a fatherly love and a fatherly care : 
vanki have as to proceed wit'ti bu<;i- 
■ a right course. He knowetli, tlint 
abate done proeeedeth out of Ime to 
hii chiUreD, but out of too great a 
hemy ; and saith, that we Iiave 
nth too much celerity and alaci'ity : 
bnvyen who were present an; not 'to 
il If that Fkndbe guilty, (as liis 
'Wci«lb)li0 defcnres ji gmter pu- 



105] STATETRIALS, SSCll Ar£s8 II. l6iOj^PrMetding$tgalmt R. 



••c 



. Mr. Mallei sakh, that he would hare this 
husiness thus rest ; tor we have discharged our 
ConscienceB. 

Sir Gtorge Moore saith, that he conceivetb, 
that wliat we did in Floid*8 business was jus- 
tice' antl done justly : that the civil law saith, 
that in rtbuM du*.iis ct oh»curU judgment shall 
he given on oath ; but, where the matter is 
clear, judgment may be justly given without 
oath : and these words were clearly proved to 
ufti by the concurrency of divers witnesses ; 
and tbereibre what we have done is done justly. 
lie would not have us to go to the Lords, but 
aaith, we have discliarged our consciences ; 
and, if that which we have ilone may not be 
executed he would not have us to hinder our 
other businesses by I iirtlier dispute hereof. 

8ir ThoiHin Howr saKh, he thinketh the 
liberty of our House is hereby shaken : he 
thinketh our judgment was rightly given, and 
therefore would have it stand on record as our 
daim. He saith, he hath heard, that the Lords 
cannot take notice of a grievance but from us ; 
and, if by this means the king send this busi- 
ness to Uie Lords, we shall then exclude our- 
selves, and the Lords will henceforth deal in 
■uch business without us, and so we shall lose 
that privilege. 

Sir /f^'/rv Ptfoile 4aith, he thinketh nothing 
can be done herein without prefudice, if we arc 
not parties to it : he thinketh therefore, that a 
IhU is the best course. 

The Muster of the Wards saith, that we 
have herein appealed to the king, and we can 

S> no higher, neither would wish that we 
ould go any lower : he would have us pctti- 
tion the kin^ to deal with us as a father herein, 
and to take it into his own bands, without pre- 
ferring it to the Lords. 

Sir Sttmufl Sundet saith, that a kingdom or 
family beinfjf divided cannot stand. It is a 
maxim in this House that a member of this 
House may not speak against what is here 
done: that' he thinketh, that which was here 
done against Floid was out (»i' our love to his 
majesty and liLs children, and with justice ; 
and, if this sentence be erroneously given, let 
^e paity adjudged appeal. He saith, that we 
are a court of rtn'onl, and every court of 
record hutli |)owcr to give an ontli ; and want 
ol' use taketh not a^vay the jurisdiction of a 
court. He would have our judgment entered, 
and, if our l<»ve to his niiijest^ and his chil- 
dren hath herein conru|)ted us with t4»o much 
seal, let him he the jud;^ of it, for whose Kake 
we were ko comiptiMl.. Ho saith, that the ce- 
remony of taking i\n OHtli on a IxNik is de puitne 
tempif ; niid this was a i^ourt of Record betbre 
that cerenioiiy wuh useil iu |hc giving of an 
oath. lie (h'sireth agnin, that mir judginent 
may be eiiten>d, and iht>n, if the |Mirty ad- 
judge<l apiieai, let him luko his* c«>iirse ; we 
liave discliargeil our con!<>ei(*iieeH. 

Mr. StHtth saith, that, it' the Iwly Elizaln'th 
had been present, and coni|duinu«l to the earls 
marshal, they would have punislied Floid 
Without miuisteriug au oath to the witnesaes, 



for they can gve bo oath : that ha knop 
that the euU maidial hasepnnisfaed and. 
prisoned without oath in his own caaas 
shall we, who are the repreiaitaiive boc 
the whole eomroonwealm, dooU wh0k 
judgment given by us without oath ahatt 
less forve than thai ofthecaila manhais 
do this only by the king'aedkt 

Sii- Eduara Conkc auth, that, wfan a ^ 
nient is ready to be given whidi con o CT 
king, as all criminal mattes do, than ■■ 
acts of parliament that jodnncfla ■halj- 
stayed, thoiigh a command come froa 
king under the great or privy seal : boto 
otherwise, when the judgment ia to b^ 
for ielony or treason ; for therem tha Ic 
an immediate party, and he may deaiit %m 
it prosecuted, as weU as an ordinary 
let iiiU his own suit. 

Mr. &di€itor saith, that tltt M< 
was sent this morning from his 
drew this business into questkn ; andn 
leaveth it to the oonsideratioD of this 9 
whether we will enter this judgmeuli tka 
demanding precedents of as, wfaeieby h^ 
see our power to give such a judgmeAtf 
foareth, if we do enter this judgment, it ^ 
displeasing to the king. 

Sir Edwufd SackouU saith, Aat the Jo 
in the Lords' House oi' Pteliiimat ai 



corded every day in rolls of parcbmem 
therefore he woiud have oius so done toOi 

It is ordered, that the Joumab of this B 
shall be reviewed, and recorded on roll 
parchment. 

It H-as thought fit on this long debale fli 
Floid*s btisiness, that a committee should 
ceed to draw up tlie Reasons and graiM 
our Judgment ^vcn against Flokl, and 
the Jud^ent itself should be set down \ 
entered in due form ; which being acoordi 
done by a committee, it was acoordingl) 
order on the question, entered into the Jai 
of this House. 

May 5. 

A Message from the Lords signifying, 
they have had, during this paruameni, i 
contentment in the correspondency hetwe 
and them ; and that they, having heard < 
censure given by this House against Fki 
desire a couterencc with this House, ioi 
accommodatiiig of that business ia sue] 
as may be wi.Tiout prtjudice to the Privi 
of eitlier House* ; the number to be the i 
House, the time thiec oVlock in 4he i 
noon, pbice the paintetl chamber ; and | 
to lie given to the committees of both H 
to confer and debate fi'eel^', that we mai 
better umlerstand each othW*s reasuns. 

Sir Kd. Cfcil suith, tliat it is a rule am 
great ]>er9oiinges and nrinees, tliat, it' 
would give a res|iectful auswcr, they m 
iHit hut by their own ambassador or cna^mi 

Answer is given to the Message thm 
I^rds, That this House rectiveth their 
ships' message with a gi«at deal of ooi 



I 



>{ Itf] SOOE TUALSi d2 Ch ARLB& II 

H ■iMHBtti.aiid that we will (»ttiii|pdie 

iif fliwIia^iUr loidiliitM ttulher wwwer to 

' i Ai aM^ \f lome meoiben of our own 



& 



.X 

i 



iMrfJudbwoiikl BOthave direnitj 





ioiiie moTB wortuy. 
BBmdk^iwttni to the Lords that we will 
k«tkm ndthea answer, we then ikiiy 
Ahmt; wd he would not have us to 
tenor, which we peroeiTe is sweet in 
ii, thdr conceit ot' ns. He would 
■tBnMDD with them from the {pniunda 
of the bw : it is human to err ; 
K «e the hii^heit Courts of the king- 
krethvlVnlB of £ninr; but to iier- 
k te env is beDuinr» or unworthy a 



jk. J^mitk^ we hare given a judgment 
j>fiB>H^v«l cwMd it to be entered: he 
ll^Mtkve « to refiMe a oonterence on it ; 
if ih^ kak out into matter which may 
fa<fcgf thit then we may desins of their 
BpsfhrdMr time to answer it. 
itii«riBal,^the>Iaailer of the Wards 
Icnyour Amwcr to the Message trom 
i«dii ind that the effiact of it 8h(3l be an 
of owjoy and eontentment in the 
jwmyiluiey that hath been between 
Hu in r idming aU the time of this par- 
Si"' that, ibr our |Hurt8, we will en* 
tte dQthwipce of the same as tar as 
> ttd thit we will meet ibr the con- 
■■Mrad. 
. *"^ifinresaith, that there are three 
■■I hinineM to be considered of ami 
!« That we are a court of record; 
■jhinketh, will not be opposed : 8. 
'_^/* fc cognizance of this business : S. 
'*j^ vJHGfa we had to judge and sen- 
™' *ithoat oath ; and it is no more 

■MiiMi** I ^ ■'*™^ ^*^' making of false 
•~;^** ^^ abuses against this House. 
ya m/ s^^-^ g,^^ ^^^ ^g question 

*e are to confer with the Lords, is a 
"■it not a general question of oil our 
' M «U ' ^ therefore he would not have 
?*T ■••"oferBnoa debate of any thing that 
""'*|sii particular question. And one 
'2*is be^ whether this court having the 
■•wtftof record, be not a court of 
• •** the other pouit questioiuible will 
^"* **laweientenced without oath ; but 
^J"^^ seen that a judgment was over- 
^J"fcr want of oath. 

^^^'[laitli, that we may proceed by 
» ■ ' 'I' thii Court hath jurisdictif in, and the 
r^^tt oath is a substantial part iuciduiit 
^■■yfaJOD : that to have t«> give an «>ath 
^""y^to all jurisiiictiiin, for there is no 
g yja icaturc but hath this power : that 
^^mm that may bu reversed hath one of 
^ •*ectf, nuUity or injustfCH: : nay, we 
^^l^^ceededon oatJi. for Uie witnesses did 
lad awcar on their saliattims, that wliat 
^i^Bond and said was true i and there 




R 



\6^0.^Primkge of Parliamenti [ iq6 

wanted nothing but the form of laying of their 
hand on the book, to make such oath to be ' 
without question, which ceremony is not now 
used in ail [ilaccs, wlien oath is given; and 
anciently men swore by laying tbeir baud 
under the thi^, as did Abraluuu's servant, 
others by holuing up the liuger. 

&r Ed. Sand^i saith, that the end of thia 
Conference with the Ijords is for the acooouno* 
dating of this business : there is a preoodoit in. 
Edward the third's time, that the Lords did 
censure without an oath : the question will h» 
chiefly, whether this business of Floid b» 
within our cognizance or no. This hiiainrw. 
came to us accidentally by the examination.of 
the business against the warden of the Flei^ ; 
and when we heard of these foul speecheSi. 
though we wanted custom to give an oath, yei 
reason (which is not flying and disputattle 
reason, which the king calls opinion) which is. 
the ground of the law, told us, tl;iit we naigh:^ 
censure him. Me would have us to d^Sie 
the truth hereof to the Lords. 

Mr. Hacketfeil saith, that this House is % 
court of rcco.d ; the king himself did 1. of hie 
reign acknowknlge, that this House is a court 
andjudge of record in sir Francis Goodwin's 
case, 6 lieu. 8, cap. 16, it is there, that tlie 
clerk of this House his book is a record. We 
have power to give an oatli ; for it appears in 
the Journals of this House, that one coming 
into tliis J louse, wlio was no member hereoi, 
had here in the House the outh of supremacy 
ffiven him, and also of secrecy, if a man 
deny that here at the bar, which atler he cou< 
fesiiethon oath to the Lords, we uuiy here 
ceusuie him and send him to the Tower : that 
the judgment given by the Loi-ds and king, 
15 £d. 9, agaiust the two Spencers, was re- 
versed m £d. 3, time, because it wm mm nul 
accuMfment ; and in the reversing of the judg-< 
ment the Coiumous had a voice. 

Sir. A{/'urd inoveth that all the parts of this 
business may be distributed, as tlie points oi'law 
and precedent, to some of tlie lawyers of tl^ 
House ; the points of reason to be the part of 
sir Edwin Sandys, sir Samuel Saiides and sir 
i>udley^ l>igs; and would iiave us hoki to 
thatpoiut ot tlieir message, which was, that 
notliiu<^ should be meddled with that is pr^udi- 
cal to Uie privileges of this House. 

Sir DaaU'if Digs would liave us stand with- 
the Ifords on the aoeommodatiug of this business, 
and would liave us shew preoe<lenls, that this ia 
a court of record, and liath i>ower of juitiica- 
ture;; and that then the reuhous should be 
shewn why we did prtKH'cd herein. 

The XiusUr of the WurtU saith, tliat, sincft 
we have caused the jutlgincut to be entered, ha> 
would not have us stand on it, or say, tliui we 
intended not U» make it a precedent ; tur he would 
liave our woiti and actions ^ree. 

Sir Sittuutl SutiUrs would have them to asaagn 
us our error, aotl that we slmuld uot ^^u to shew 
our reasons UU their lordshi|)s hud tii-st slu^wn us 
their exceptiuus, and then %ie should give an- 
swer to them. 



J07] STATETRIALS,S2Charle8II. l6SO^Pr0eeeiing9agM$tR.Tkmi 



May Sf p. w. 
At a Conference with the Lords. 

The lord an;hbishop of Can/«rdurv saith, that 
their lordships* purpose is not to give any par- 
don or defence tn Floid or his offence, but only 
to confer of the manner of Floid*s punishment ; 
ibr their lordships say not but that he hath de- 
served as great a punishment as we have cen- 
sored him, and porhaps more. That he is happy 
who shall brin^ any thing that may conduce 
to the seeking torth of the truth of this offence : 
that their lordships seek not, nor purpose to 
question any power hereby. 

8h* Samuel Sondes saith that our House doth 
with all respect and thankfulness acknowledge 
their lordslups* favour, in the good correspon- 
dency that liath been during this parliament 
between the two Houses, lliat we are free 
irom any intent to make any irruption into their 
lordships coiist, but, having such an occasion 
offered, we thought we mi^t witliout offence 
or prejudice, esctend our jurisdiction ; which 
yet we have not done farther tlian, we conceive, 
reason did lead tis. That this complaint was 
first brouffhtto us, as a fault against the War- 
den of the Fleet, (who stands charged ^ith 
many foul crimes before us) for that he (having 
heard of these scandalous speeches spoken by 
Floid his prisoner) ctmoealed the same, lliat 
when we understood hereof, out of our zeal to 
his maji>sty and his children, we presently sent 
for this Floid wlio spake those vile and malici- 
ous words, and on searching of him we found 
in his pocket a scandalous uM a^piinst a noble 
member JT this House ; (sir Edw. Coke,) but 
we thought it not seemly to join that offence 
with so ipneat a one against so- noble a lady and 
her husrand, and so proceeded to an unaiumous 
judgment against him. That we hope, as we 
are careful not to touch the hem or skirts of 
their lord.slii|>s privileges, so tlieir lon1shi()s will 
not press too hard on ours, we having herein 
done nothing, but what some lawyers of our 
House (lie hopetli) will shew, that by law we 
may and arc narrantetl to do. 

The Lord Treaiurer saith, that the Lonis do 
conceive, that all those offences, which concern 
not tlie lower Hoiuie or some member of it, do 
properly belong to be Judged by the upper 
House, as by long practice and many prece- 
dents is shewn and manifest. 

Sir Eduard Cuke saith, that we hope their 
lordship will deal with us, as Abraliam did with 
Lot, who, haviug chose the lefiliand, gave him 
the right, and biui him go wliitlier he list. He 
saith, tliat the House of Commons hath, in 
manythin^, aih-e lilierty of judicature: he 
desireth their lordships to rcmeml»er, that they 
were gentlemen before they were lords; anil 
therefore we hope, tlieir lordships will make a 
favourable construction, and not press too Imrd 
on us, if we have (as we believe, and hope we 
have, not) i^me beyond precedents. He de- 
•ireth their lordsbip.4 will be pleased to consi- 
der, that our House is a court of record ; for 
that court, whicl^ bath power to imprison and 



set fmes, is a court of record ; ar 
House hath power to fine and impri 
sireth their lordships to remember 
Ed. 3. an archbishop for causing a 
our House to be served with a su 
grievously fined ; that by the statut 
4. all menial and other servants of a 
our House are free from all airest. 
nifcst and known to all, that whosoe 
court of record may incidentally € 
oath. In 3 Jac. the wutlen ol 
was examined at the bar iu the Hon 
mens on oath. That these words w 
against the members of* our House 
est pars patris,* and the king is ever : 
be resident in our House. 

llie Lu9'd Treamrer saith, that th 
pected, that we would have sheivn 
that this business was censurable by 
That tlieir lordships do acknowledg 
concemetli the House of Commons, 
ber, or the servant of any meml 
House, doth lie within the comp; 
power to judge of. 

Sir Ed, Samlyt saith, that we did 
to extend our power beyond the privi 
House : — That in this particular (v 
ho])e there will here never be the liki 
thought we might refer it to the rei 
other judgments, for we may judg 
done ag^nst this House, or a mcinb 
and we take this to be against the k 
as resident with us as any member 
thought delay would have extenuate 
uicnt and his offence ; and, though \ 
used to judge in such a case, yet 
' consuctudine referendum ad ratio 
* ralem.' 

l*he Lord Treasurer saith, that tli 
free us from any intent in us hereby 
their lordships* prri'ileges: That tl] 
ready to do us right, so we take s 
witliout prejudice to their privileges ; 
we have shewed our ascal, they will s 

Mays. 

Conference vrith the Lords, tot 
Judgment given on Floid. 

The An^hbishop of Canterbury sai' 
Lords were the first that did suil 
business, and the Lords were the 
did send in it: Tliat tlie Lonls c 
exceed us in nobleness, and seek not 
but verity : That they seek not to f 
liberties, nor would have us make ir 
their privileges : That their lordshi| 
such causes judged by them, and do 
we will leave tlu:ir lordadiips \ihere 
thein. 

The Master of I he Wards saith, 
so much embrace the ^ood corres[>ui 
amity tliat is between tlie Houses, th 
ratlier for an accomiuodatton than a c 

The Arclibishop of Cantertmry 
tlieir lordships will kindly embrace ; 
modation which b worthily propot 
hkc ourselves: That their forush 



rXTE TRIALS, 3S Charles IL iGSO^^Privitege of Parliament. [ 1 10 

the Committee thought fit, that we should nol 
adrisonor cooti-adict their lordships, if they will 
jfive further sentence on Fluid, but only desiro 
their lordsliips to take into their consideration 
the hanousness of tlie offence, and to do it witli 
expedition : and, for the second part, to offer 
unto their lordships, that our precedent shall 
not be drawn in consequence against the pri- 
I'ile^s of their or our House, and that there 
shall be here ^if their lordships desire it) a pro- 
testation in this House, that this pn^edent 
shall be no prejudice to the privil«;gef> of either 
House, and that tlieii we will di'sirr there way 
be the like protestuiion in their House. 

Ma if 12. 

Sir Edward Cooke's Report of the last Con- 
ference with the Coniiiiiitei* of the liords, con- 
cerning: the busini. ss of Edw. Fluid. He saitli, 
that he divided his s|KMH.'h into two iiarts : fint, 
the induceuient; ulieniu he laiti down our 
confidence and resolution to maintain the good 
correspondency with the I/>nls, by means 
whereof this (larliantent hath reduced great 
aliuses to a gooil onler, by |)unLshing of great 
offenders : — That what we ditl was far from any 
intent in us to gain a ])rcce<lent, or to inrade 
their lordships lil»ertics or privileges : lliat the 
judgment was given out of our zeal to his ma- 
jesty. The second part mtis, for the accom- 
modation, that we relied on their lordships kind 
messages, and that we desireil, that tliis judg- 
ment might be so aeconmuNlatetl, as it mig^t 
be without prejudice to either of the Houses : 
Tliat we leave it to their lonlships ; if they 
would proceed to a judgment and censure of 
Floid, that we desire they w«)uld then do it aC" 
c*ording to FloidN dcniei itM, and tliat the execu- 
tion might be done with s{»eed ; and that \ie 
would make and enter a protestation that this 
preceflent should not be pn-jiidicial to either 
House: That hereu|K)n the Lords did (aflera 
private consideration) present to the sub-corn • 
mittee a I^-otestation in Ace vtrlni t " A Pro- 
testation to be euten*<l in the House of the ' 
Lords, by the consent of tlio Hi^useof Com* 
moiLM, that the procee«lings lately past in thct 
House, on the Judgment of Kthvnrd Flotd, le 
not at any time hereafter drawn or used as a 
precedent to the prejudice of eidier House; 
but that the privileges of both Houses do re- 
main and abide as before." 

Sir Nath. Rich moveth, that the Committee 
may have power to conclude on the Protesta- 
tion which the Lords offer ; but ^xiuld havtt 
added, that neither the proceedings by us, nor 
any othei' proceedings which are or snail be in 
tins business, may be to the prejudice of th« 
privileges of either House hcreafier. 

The Maiter of" the Wurda coroplaincth, that 
he, seeking at the Conference with the Lonla 
to repair or exphiin a mistaking of sir Edward 
Cooke in the delivery of the message at the 
Conference at the Committee, was told by sir 
Edward Cooke, that there' was the spirit of 
contradiction amongst our Committee, pointing? 
at him; and mlding withal, thai he, who ahouii 



in general) 
aU propound the manner, bow we 
this oiflereDce should be accommo- 

f er of the WarHs saith, that, as their 
St acsit to us touching the accommo- 
liis business, so we desire their lord- 
I first propound, how they would 
mroodaled. 

hbl&liop of Ctinterbury saith, that 
I their lordships have had an irrup* 
r liberties by a judgment given bv ; 
uM tliat we should meet them hau 
east for the accommodating of* it. 
f/tr t^ the WariU saith, that our 

bad to-day some speeches of a sub- 
and, if it please their lordships, \se 

again to the House to confer of a 
tee, touching the accommodating of 

V. 

t was agreed of all sides, tliat we 
laiot our House with this ; and, in 
ne, thf^r lordships went into their 
jiudder of a sub-committee, and the 
lumber of iliv sub- committee, 
[ouse, the Speaker sitting, aAcr the 
«ith the Lords. 

irile «iith, that he would have this 
acconimodatetl, as by this precedent 
e net ourselves ; and tliai this should 
T htn«f , nor be alleged ag-dinsit theiu 

he wisheth the business be so ac- 
d, aa the delinquent's punishment 
extenuated, 
ge iascnt to th«r lordships, to desire 

may be a sub-committee of botli 
Minted to accommodate this business 

whcreiu we leave the nomination 
t time and number to their lord- 
ly saith, that it \& a maxim, that 
mi non habet Imperium,' so as the 
' ant question us, nor are we to ac- 
rcm, for any thing which themstives 
The sentencing of Floid lieth nnt 
vwcr witliout us ; and therefore by 
re not lo account to their lordships 
igment we have given herein. 
niltee of sixteen of tlie Upper House 
ed by the I^nls, and twice as many ! 
die tccommodatine of this business ; | 
ire to meet on FriiEiy next. 

il/sy 11. 

nri Cooke's Report concerning the 
I widi the Lords, touching the busi- 
!■!. That the Committee agreed on 
I W delivered to the Lonls for the ac- 
ft^ of that business, and hath divided 
p firti : first, the inducement ; se- 
ll irtare and matter of this accom- 
Dr the first, that we never meant 
llbcir lordships power, that we 
» baeause of the notoriousness of 
%i Mai of our duties, for the ho- 
iny aod his children, and our 
■I the teataice boog thas givcDy 



inl STATETIU[ML5,5^CHAU«fin..l6dO.*slVmxeiu^r«^^^ 



Mkto BOnrffedteicfD i&tfae Hoifte, w« ntft wor- 
thy of bis head. 

Sir Edward Cooke proteflteth, that he spnke 
mierally, «nd nOMUit not -the Master m the 
Wards; biltaaid,-thaithelikecoiitradietioiis,at 
the last conTention, were the overthrow of the 
pariiament : That 'the wonls which he spake 
at the time ware as the clothes in Birchin 
•Lane ; if the Master of the Wards did apply 
the same to himself, it was more than he meant 
to him ; for, when he spake those words, he took 
not measure of the Masttr of the Wards' body. 

On sir Bdward Cooke's protestation in the 
House, that be meant not the Master of the 
Wards, in any of those words which the Master 
of the Wards did except ag^ainst, the Master of 
theWaids, in the Hoose, openly said, he was well 
satisfied with sir Edward Coolce's protestation. 

iSUr Edmard Saekvilie would hare us send to 
the Lords, to know, if their lordships in their 
-House hareconfinned the protestation they of- 
fered at the Committee ; and, if they have, that 
then he would have us consentto it. 

It is ordered by question, That a Mesmge 
shall be sent to the Lords on Monday morning, 
to know, whether they do aUow of the Protesta- 
tion offered at the Comfereace by the Committee 
orno. 

Afoy 18. 

A Messaffefrom the Lords, That, since we re- 
ferred die judgment of Floid to their lordships, 
the3r, understanding that we have a trunk of 
writings of the said Floid's, wherein may be 
something to aggravate his fault, do desire that 
we will send me same to the clerk of their 
House to be opened, that the writing^ therein 
may be looked into. 

By reason the messengers from the Lords 
said (contrary to the agreement between us and 
their lordships, on the Protestation entered in 
both Houses^, That wie had referred the Judg- 
ment of Fknd to their lordships, we returned 
Answer, that we would send Answer to their lord- 
ships' message by some members of this House. 

Whilst we were in debate what Answer to 
send to their lordships message, another Mes- 
sage came from tlie Lords, by the same messen- 
gers they first sent, that their lordships taking 
notice orthe first part of the Message they last 
sent us, do now (to take away all scruple) send 
to acquaint us, that the said first part ot the said 
messa^was mistaken; and the effect of their 
lordship's desire is, to have the said Floid's- 
trunk, that they may look into the writings in it. 

Answer to this second Message is given. That 
Ac trunk shall be sent n^ to the Lords (as their 
lordshius desire) to be disposed of as their lord- 
shius snail please. And acconliiigly the trunk 
and key were both sent to their lomsnips by the 
fierjoant of our House. 

The Lords of the upper Honse of Parliament 
did, this 90th dsiy ot May 16 M, censure Kd. 
iHoid, whom before we of the lower House had 
oensoreil ; but their lordships called not us to 
dflmand Judgment (as in other censures, on bu- 
ivhefiof we teveintbittod thesa, they 



used to do) booanse we^had ibe 
ment on tne aaid Fhdd : and, 
•thought tl|e Judgment Mid 8 
on him ws^ too great, their lo 
on -him a heavier, viz. *<Tbai 
graded from his gentility, ride 
nrom the Fleet to Cheapside on 
out a saddle, ii4th his nee to 
and tlie tail in his hand, and th 
hours in the pilloir, and then ti 
«d in the forehead with ihe leti 
Friday following he shall ride 
said nlace in the same manner 
and tjiere stand two bouts mo 
with words in a paper in hishai 
fence : — To pay for a fine to tl 
of 5,000/. and to be a prisoner in 
his life." 

June 1. 

I saw this day, after our H 
Floid stand in the piBoij ; the 
tion of liis offence bang altei 
were appointed by ourHous< 
** For i^ominious and despil 
*^ malicious and scornful beha 
*^ Count Palatine, and die king 
** and their chiMren." This ^ 
breast and back, and he stood 
pillory, and did ride according 
of the upper Honse. 



The iblkiwing Heads of the I>f 
place in the House of C< 
iiig Floyde are taken f 
Journals. 

1 Commons Journal 

May 1, p. m. 

Sir li, Manwarinfi. That 
l(»rd Warden say, that, when h* 
Wales, Floyde questioned for 
the BiUe : and now is questioi 
against the noldc king and que 
Tlierefore, sithence he hath 
God and man, mo?eth, that nc 
man's sake he may have men' 

Floyde^ at the liar, charged 
with sp^aking'the scandaiou 
mentioned, against the prince 
lady, and with his denying th 
in (lis denial thereof. 

Pemugto', confronting FI03 
former speech ; tliat knowei 
what time these words spok 
such man as Fryer, except l)r 

Mr. HachfyU. That, ui tl; 
Lettice Harrys, he obsorveili, 
that she denieth, she ever 
warden of the Fleet ; but tha 
one W illianis with it because i 

Sir It} PhiUi^prx. Came 
to speak freely in this parliani 
better occaiiiion to shew \w 
noble lady, the ki-ig's dauj 
offence : 9dly, against whom c 
the pumshioent. The frftece 



ITE TRIALS, 32 Charles II. l GSO.-^Pimiege of Parliament. [114 

wkich may J>« tliscovercd by his jiaiycrs. To 
siiKiHfiid our sentence. 

Sir Edw. Cecifi. To moke this punishment 
p^reater, than hath l>oon, in like cases, hath 
been for siihjerts scandals. To boi-e linii 
tlirough the top;^iie ; and a B. in lus fore- 
head. 

Hit Geo. Goring. Aiow called np. To havo 
him set upon an ass : 1^ .stashes, as 10. bt^ads : 
at every one to s^altow a bead ; and 12 jerks 
to mak<' him — 



rf ipiteful aipiinst the king* and 
ibenuB. The persons, ai^inst 
lOpeAil issue of our ^preat master, 
arth, because he endeavoured to 
d marie hnn unhappy. For her : 
* ind iMinour to any. Floyde a 
91 original : a popish knave, the 
n of all other. For his puntsh- 
rehim carrried from "Westmin- 
I his face to an horse tail, a paper 
jreat letters ; " A popish ^^Tetch, 
njftlie kin<;^*A children :" to the 
there to lie m Little Ease. 
lou. Because a prisoner com- 
be Lords of the C.-ouncil, to ^ to 
et them know, we desire to have 
iirouprh London. 
m. As bir Tho. Row. 
Kinna^ton. That Floyde put into 
D of the |ieace. 

iorc. No punishment too great 
'. l^ppceilentK have a beginning, 
ack to the Fleet. * 
I vouchetli a precedent of the * 

rofte. 1,000/. fine, to be eni- 
rars of the Palatinate ;• and to 

To carry him in a disgraceful 
Power ; and he there to i-emain, 
ted by the I^rds. 
tumour . To go from "Westmin- 
ail, with his doublet off, to the 
b about his ueck, and as many 
IV, as bf-ad*?. 

f o punish first here, then may 
the Lords. To send him to 
ipping : beads : Tower : Little 
rtncr pimishment by the Lords. 
ile$. Jsiorry, so -imworthy a 
ear the name of an English - 
1 evade, and say, lie were a 
Jlory ht^re, with a pai)er of his 
■ his vile wonls : whipped ; Iris 
ixeji, and especially hts friar*s 
im : if these can defend him 
ipiniri ^^H : so many more at 
; and so at the Tiinple, and 
en to return him to the Fleet : 
iin into a worse prison. 
jptom. To suspend our judg- 
•en examined: tbrmayaggra- 

. To the Tower at first : then 
(Oidt ahaut it. 

w. To lc*a^ e out none of these 
rbe doubt, her^iuse committed 
lb Mispend our judgment, till 



Not to defer it, nor to put it 
L Oynenteth to the punlsh- 
r hv air Ho. Philipiies : and 

ft^fy ad«ietb, boring through 

^f^ have his tongne cut out, 
I, he an intelligeucar ; 



Mr. ISafisburi/. Sorry, hath any Welsh 
blow! in him : yet but half, for half English. 
Agri^i'lh witli tlie most smcre punishminit^ 

Mr. Price. A paper : pillory : riding upon 
an horse backward : and 200/. fine. 

Sir Ho. Bevcli. Agrceth with the greatest 
punishment, but bIfHxl ; and would not have the 
Deads, See. put pi>on him, lest should lie thought 
to be for hts religion. To defer the fine, tor 
search of the papers, for his greater pmiish- 
ment. 

8ir Jo. Jephion, To punish it presently. To 
whip him to the Tower ; vi'/. as tar again, as 
those for the Spanish ambassador : and a g^ood 
fine. 

Sir Kich. Gravenor, Not Vn defer his punish- 
ment. Whipping to the Tower: Papers: 
Beads with him : Out of the commission of the 
l>eace: Unbarristeretl. 

Mr. Finch. Desireth all these punishments ; 
yet no coqtond punishment, because no proof 
upon oath against him. Pillory. 

•Sir Tho. Wryneman. To cany Iiim to the 
Fleet, and whip liim. And hopeth, upon search 
of his paiiers, to find matters to hang him. 

Sir Jo. Strangevfi^fs. To make a precedent 
in this case, if none beibre. Whipning : boring 
his tongue, at Cheapside : and tlien to return 
him to the Fleet. 

Sir Edw. Wnrdor. To make a preceilent, if 
none before. To return him now to the dunGr^>on 
in the Fleet. Whipping: as many lashes, 
as the prince and prmccss old : boring in the 
tongue. 

Sir Guy Palmes. No blood. Tower, &e. 
^ Mr. Angel I. A gag in his mouth, to keep him 
from crving, and ]vn>ouring pity. 

Mr. Towerion. To have hiin stand upon the 
pillory at the excliange, that the strange mer- 
chants may know it, and piiblish it abroad.* 

Sir Jo. iValfcr. To avoid cnielty in his jni- 
nishment. To vilify him, as he hath done these 
noble princes. To ride backwanl on an horse : 
A fine that may go to the Palsgrave ; because 
asked, whitherthe lail would go: pillory : his 
lieads, <Scc. to be hanged about him, to shew, 
from what root this grew. That he laiiglied at 
the Icms of Prague ; therefore to make him cry 
by whip|Mng. 

Mr. Malktt. Tower, presently. Whipping 
Ace. to be respited, till the pnjKTS ])eruse<l. 

Mr. G/anvr///f sccondetn sir Jo. Walter's mo- 
tion. Not to be disputed, but we may df>*hat, 
which we are about to do. To do this, and 
leave further pimishment to the I^rds. 

Mr. Alford coucurrelh with sir Jo. XS'^uUm 
I 



115] STATE TRTALS,33 0BAnLltslLt68a~Pror<-nfiii^ff^aM*(R.Tl« 

in til, Init whiiijiing-. To fiae bim, instead of 
vhifntmg. 

!*tr H. Andfrvn eonforrMh wilh rir Ro, 
PhiDipptTi. Not rati^fird. loukchim out nrtbe 
jHisiin. uli>rcuiiioiliplonlKDf thecounril have 
TOiumLti!''! timi. I'aper: btanikd: ridetack- 
«ank: hmis about him. 

Sir KJa: &i>iJi. >iu<-li dirtirahy in thb 
nu*e. T« br iit4i«ilTi««l. ThaiourMUteuce 
wi!l becsBunM in a,^< n (Mil ot'ihe Christian 

Titt ri-.l '>' 11 I'l afftrtionlo rehinoii. iin i;,i-i, anil paiiicularv rf ox 



:ui<1s 

l»(TS.*n*, ii», EtI. li. : 

Till* 



r;'""' 



il Qiinn Jane, cvcaped 

i.t' ni'p.Kiws in relieioD. 

iW'^ ill her enr- 

biil tor the 

. briiu: ibfoi. 



For f>l«-, nulicioii* a^ 

" ■ihti.Ik.-, il.. . -. the kinj^'a d 

" hor bii-lti .■." • ■ stand m- u |il 

Ss<-k s.- U'. ■ .'I at 1,000-'. 
Committee lo aii\eg and esamii 

Sir 7^«. irtmlKorli mareth 



Till- 1. 






Ihe«i 



eCw 



>1j- Sbeifield added. 
I -i-yoe Hill) i\\ 'wed, and lo be 
' »Tiiiii;;, The SenleDce to be rt 
^b('iitr-,<>l' I i^::.! )b.Uk«e^ 

' ihu puryoir, lo Ksa 



uil. ti 



evcepi tinn detn^iWi 



Yh.} V -alkd in lo tl.e bar. i 
Mr I^prik^'pnnoiincn] bt^jodii 

TlurwsnlFn of lbeTV<l connni 
Fkijiie tU< mi:ht in BohoD'n < 
brias FVide hadter lo We<aminf 
tight ti tW cluck, tad to detictr 1 



(•oodoIlV. wi-inis eA' evntiiniit. 

To pnni<ii him »i:h as mu.h 

K" r.iiiiiir bifkiranl : (Miier' pilloty in divi-rs 1 Ifev ■> t 

i-tiumat , L - ' iu a <lam:«>''ii i " *' "' 

tor w-nie lOtai-.r. ! ■ liiw. " Mt. Priet. AD (hit dar in 

Mr. Pi-'u-'/. To « hip him, eYce|«t «iihin ' I>ii-mhmdi pui into (■or han 
»:Ti.Tr.w.niti i.!ivh^(«j IlWP/, Hoc. ' oHirfii. Nvny.Uiibv the ki 

S:r F-, t'vi-n. No whini^r^; : Uit fioe ' h»irr-t"*.or inva-er, 
iatbetd .-f ;1«|. " TtTO.r, Uvaune i»in t.^jj !v jv. »>-:«.-;». The 
pndti. I diu^tpf r>-i)»v-!cii. in some ill! 

.W.!!;™ .7':*r ITc-ii. To pte patE-hmmi Mr'juneut. iir.>:e than anv oti 
f>'«'(heb)ih«>«nBiiRfi}. If make apnvedetii, S.-t n ^iio tbf l<>nk. aarpeb: 
Iri nbrwilkKt-M -' — ■■ — No«l«enenKh a N,< n. il n. ■ ^i^nicBt corei 
■rawoN, V *^aU hiin ifae kins'* rtiiUivT ' To pnv«ed H ■ .of T| — gfa 
Tlmi^ bi* M _ ai- J,; - " ■ arm, (Iftiiai 

■^ :r^, ■ SL- F.i-T. L er^ Tlac pnfian 
■ > I Me- j i» W tW hipfueo. tku *t« " • 
>«»- I N«k J '■ 1 precrAt. By Mr. 




Ttat »« i _ 

SMC ^ kii^'f )n- , jodrBMBi. 

Mr. M l ' h J . Ai «« ken few to wMd iir | br asv. f 
*«»h**«, *« WTep(-wt(neMlMi»Uw <i wit a^^ 

£VW SiriM^. e«n. ' »i« \v« Tcv w rfic > ■iiibii ba> m 

Kt^ W^TMiiy. IV Hm m k fti ' fcRT- 




SotKiue JWnt 



r**"*«"*E*t«»J tofa « (MMV 4a«. j^M»Aw'^ T, 
Lawr: » bi iTMcki kaibcr an* »• ««h e^aw^axc. T 



*ra>«Mc. aV takv vMuir. T' » 



117] STATE TRIALS, 32 Cii arles II. iG^O.-^PHvikge of ParUammt. [118 



iDBiided him to let the House know his ca>-e 
about Finyde. Thanks to the Houiie, tor their 
love to him, and bis children. That the kin>^ 
hath given order, upon Fluy (Ps petUion to his 
learned counsel, toezaiKJiieFlnyd. That the 
petition was deUver^d by Uichard I'loyile, 
where the kini^ thought it had been Ed\iard 
Floyd himself. That Floy<t now uxai tuned 
by Mr. Attorney and fMiUicitor denictU it. 
\Vill, to morrow, gi\e oHer, to have (liis ^xix- 
mined by the Lonts, upon oath ; and, i\ ii shall 
be proved there, will punish it, acc^rdiiiij; lo 
our desire ; conceit ir.g ils to have n«) }M)wer of 
an oath. That for ttie iJi-ocedtMt t ii. 4. the 
kmg (whereto Mr. ^J^jeakfr leplied) wa.s pre- 
pared to have given au answer ; but did for- 
bear, in respect many there were no niemliers 
of this House. 
Mr. Sii.ltcUor, That the king, as soon as 
: whidi made the king and Lortis, in Air. Speaker and the House gone, the king 
MvtKttt Mdnde them from judgment in { committed the e\*amiuatU»ii t>f ¥iu\ d to the 



ntii poM bere. If any speak against this 
Hme ikwd, we send for tiim.— No ques- 
te,lM, nfm his coufesswn, we might, for 
Iht MM tftreaid, punish him ; aii«l may 
4 kirn, without oath, if the House satistictl 

^ hOw. Moore. To acknowledge no error 
■Mrjutoient, nor to contest with the king. 

Ufa fneitiQii, to address ourselrcs, in this 
OM^IikiB^jestv. 

M/KUttf the Wards. Tliat the Speaker, 
wiAe whole House, may present our re- 
^tobnajesty. So Mr. Wandesfbrd. 
- ^Ktik. Kteh. Because nothing crosseth 
•V/ifaseni; but the precedent 1 H. 4, which 
■apnatreoDrdlbr us, made in that pailia- 
■a^ wherrin the most prodigious fact done, 
Ihtcf trill pirKimcnt ; which this House then 



iili 



The tact was upon king Ricliard 



A.Gn|f/r. If any foreigner offend, just- 
ffi>f aeoiber ot* this House, in words, we 
^"^^^^^ ind punish him. 

^J^Chtmbertfiyne. Fearcth, tliis going 
{^■e kaff wiQ procure a distaste betiveen tlie 
Mudus. 

Mr.ARpc Well resolved to go to the king. 
Tifke hisi iidl satisfaction in some things. 
™*<ijtt|any execution of our judgment. 
£*y ywies made ; if any man of the House 
f* wtei Fio> d, the king woukl not have 
Jy* •faW: Much less our judgment. 

if** with die king, of our right. To 
*y*'Wr»easoii8, moving us, in this parti- 
JJj^J*^ to proceed as we have dons : 
^f^pienl ; not to dlscbiim our right, but 
*J*J*ieli search precedents. 
^^'^Seymor. To have only ten or 
y* ><tend the Speaker to the king. No 
*J*^ the king. To search precedents 



^^ •Slnmde, To leave it to the king, 

Jj*^. ^ whole House, or a select number, 

• SITl ^ Spoker to the king. 

' ^ 'Kneii Fane. Accordant. 

^ Atf. Jtrmifn. A committee, to with- 

~ tkntelres pieseiitly, to set down in 

?Pf 1 whit shall be presented to the king 

S' ^ w. Mounia^em. Not in our jfower to 
^ wfaedier the whole House, or fen-er, 
^^^totheldng. To leavethat to hun. 
rr^Kntuy, Cbuicellor £xche(]uerf Master 
'"'WirdB, pieaently to signify XA his ma- 
^TlheMre of die House. 
1^2*'^ t <^ W^rdot To take especial 
y^fltfhitt. Rkshe's motion, to answer the 
||2'*^lH.4. Neither to accuse, or ex- 
^Mdires: To shew our judgment to 
g?j^ hastened by our zeal. To de«re, 
J^ wH deal with us, as a fiither. 

May 4. 

^•flMrvfsry. That die king hadi omb- 



attorney and him. Floyd denied it. That 
the attorney told him, he had denied his scan- 
dali^iii«4Wif sir Francis Kvers, till he showed 
him his hand-wriiintf ; which he again now 
absolutely denied. That t!ie kiiig, upon this 
denial j the more desirous to |>uni:-li him : And 
therefore leaveUi it lo the judgment of the 
House, whether to insist further upon their 
right, of judging this business here, m' io go to 
the Lords in diis, as we have done in all other 
business this session. 

Sir /. FerrOi t. To have it considtTet^ whe« 
ther we be a court of reconl, aii(,l ^vhcther we 
liavo not power to give an oaili. 

Sir W. Strowde. This no seasonable motion 
now. To go to the Lords. That cxauTination 
n ill be long, and will defer his puiiishment. 
To go about that now, which may uest aiU ance 
the i^ood of our countries. 

Sir Ho. PhiUippe*. In our judgment as much 
love to die king, and his, as ever from any 
House of Commons ; and as amch duty,, in 
desiring the execution, as ever from any. To 
sit down^ and meddle no moi-e in this business. 

Mr. Afford. This House never so shaken 
in Judgement, as now. Our judgment gene- 
rally known. That done by us, in one case, 
for the king's issue. 

Sir D. Diggt concordat with sir Robert Phil- 
lippes. 

Sir Tho. Jennyn, accordant. If any could 
maintain what we have done, would never sit 
down. If that true, which we have heard 
here, this the greatest court oi' Eugbind, and 
die least power. 

Sur Wm. Heriferte. We have given our 
judgment : The king may stay the execution : 
We cannot help that. 

Mr. Mallet. Tliis a court ; where law, and 
discretion. The b^t discretion, to leave this 
matter now. 

Sir Edio. S^ckvyle. While Floid iiotpii.i:sh<- 
ed^ we ail sufter. No kiss of privilege, for the 
Lords do concur with us in the senteuce, iici to 
confirm ours. 

Sir Gtor. Moor. Thinkedi yet, they gavit 



ft 




ibis judgfiuent iutU^ &s well as Justum: For ment shaH be ealered, or not. So mr "Wm-^ 
done upon ^ood reasoa. An oath not requis^ite Speiicer. ^ 

ill all oausi'S. Tlie matter nut obsouro, but ^Ir, 6»i^ta. Tbat tbc earls manbaU ^^ it 

Iilaiu. Not loj^ tutlu* Lords. To rvst berv. case, upou compiaiut would have punidietf^^ i 
for tbat bis maJe^t^ niay btay tbe cxvcu- \vt (..\;iuiiDeuot uponualh. Kinm'eth tk^^ 
tion. liL- nw u cast*. ^-*^^ 

8ir^M--. Ct"*::/. "We ilio sinews of t lie com- Sir i'.it*. KVn.'ToWA. Thai the judgl^^^^f 
niOxivL-alib. To refipirJ our K\aii\. aud tb»^ rii;l!ily g-i\e:i t\icaiiou may be starred bv ^ 
liouourot' iiiis llxiu>e. No: lo ^o tu the Lord^, ki.iu: : So hatti S.oti. ••!* judgments given oj 
to uiovfthcia tu patch up uiu-iaulis. Lr>rds. 

Sir Tho. lii.u.. The bLimiS ol' this Hous^' Xr i.' .' .. Cor^. Jr.i.l:rr!^eut DOttobe BtaqT^ 
inuci) sbaki'n i;«iu. Tiiinktth oar ju»'n;:iKiii lor G.vii Sja!. xr. vri where felony or ^ 
ri^hiU iT^c-u and ui:i\ stcui-! upi>n reeorxl hort'. »ou, liie Lixi^ may sia\ the proeeedinj^. 
»s o.ir i'Wuu. rh'.i liiiH canuut Tii'W o-nio ii^ judkrn:eii( i::;^^! tc:' '.be kiuif: Forhia 
iLi l^trdss «-ithtT \Mth us, ur ultlumt u>: Noi Auy man k^jV stJ^ hi> own suit. Not to i, 
wiihus, wLthiuit uur ili>hi:ra^'c ; lur wit hunt us. umi the/ni.rincai. £«*^ty ntan« though 
beoau>o oaunoi lake ii<..:;iv «.•! huv puldic ajt'ii^^ - sent, ii^^ol^ttl in uiejud'juient ; yea ' 
raiuv ^a< I'.ils) ^«iiuvut compiaiut turrcut'triim u.oiii lus, ibouirb he ui' a contrarr 
beiv.T. C -UKori jiic^rd,^!. The judgment already 

Mr. Trt.. surer. Nut move«l. or i mended, we ured. The km^ niav ^tfay the execoti 
sh«iuM i.iic carry tliU to the i>'nis, i<r OHisciit t> \« here be unly )^rty. In ap{ieal, not to alaj i 
it; bill iCavetliit^ o.nir>e tbei'irof to the kuic* in iudii^iiucr/. i.'the.-wise. 
and s|)cak m> mure ut' it. ^ Sir rha. Ui.T::n. First to rend the judgaiiL 

Mr. .>ti'i^-ri. uccoHam. Mi. Xi/i*j.\T. WiUuot ffoabout to di 

Njr II. W'.'trri^U'H. Thinkeih not, bat we , them trom tiiis. N^4 to ilo lit thin^ 
b.ive|Ki\«ertou:i^i' an oath: And, tor prece- . $i>r. J'<Iy. Tiiat this question grew by a 
dents ; t.Mry privevlcni had a hi^inuiu^. sa^re trom the kiu^. 

Sir H. J lV/c. To pi\Hreid m this hy \w' of Sir Kdw. Cuke, Sir Ro. Phillippes, Sir. M«K 
bin. ' : Mt. Alt-.*id. sir San?. Sauds. Master of IM 

S-r ri.v. CiUs. Not to wave our riirhi. Uands, sir Nath. Rich, sir Edw. CectIL, fl» 

Til ink*, ih iu his cmcience, we have done well, senily to retire into the committee chaiwr, 

and iiid;ci.iUy. Ni>: m c** >'^ ^i^ Iv^rds in this , and tu set down iuuTiting, the jmb^ment. . 

i*uui^se. Tu Iea\eii to tbckiii^, and ^vith the , Sir KJiA. Sti£kryl*\ Tlwt all our prooeedia^ 

kiuj;. may be entered bcie, and ke|>t as Keconli. 

.\L:sttr ,yt' :f:e W,.rJi. S^>rrv. we dri^in to 

thi-i strait : lUii much lUcti-^ii ; Cauuo*. jv iock j ■ 

frumuurjud&rutem. \^f ha^c appeuit^l L*ii:e I 

kinv: : Cancono hiirhcr. To v:o no limir. | TlieRcf^^n iu Grey's Debates of the ipiuhll 

Tu ^ oQce apiiii to tiK' kiu^r. and lo Ut hiiu '. made m the Ht'useot*(.'ommon< in the pramH 

know, what n c ha^ c dune, bath b.xa i.u{ uf of the IVoceediuo^ atf;;in>t Tbompson H tf 

our zeal and love to him. aud :u> Ctuidr^'u. Tu - fuUtw^j : 

desire him. i'uct aiTiiu. to do ^« Lib i;». as a la- i ,- • n _ •• -i. ^ ».._- 

tber ; and uoi to put u. o. cr tu the b.rds. but ^ i*^;" .^ ^ -- '• ^'^ J}'^^"" '^ .^^,'^^ ^T??£ 
biin^lt' to end. apivvru^d :.» . \,i^)::k uu ivmplamt agamst hUB 

Sir&rt. i»: ; »■*. Nouif raUr of this Hou>o " ' i • - •■• •. 
Ou^t atur a qucsiA'C. to qi'.rMi-n ttie )vn-.ti- . S.r il^':<ii Arjr\.':...'.\ 1 wotild not wmk 
of thi> House. Tb;^ ilu j»;>Liii<iii i:i\<.u out b::u t** Ki^u. lo." tV-ar iliat be is their chap- 
of a^tat ic^\ and \'*\f m it.s mj;,«.>:\. T^* bviii alrv-.i'l\. biii tuoui\lb>auish him to Geneva; 
let the wurM LiUtA* r.«» p qiie I>«.t»t.i:i itic kini: for he sav*. •• Tmy -re wi.»r>e than thedinl 
aud his pt-iiplc. N> t trr.>i.i\';i>. iu*r c.^^i.-j a^ : that aiv lVv^*Atii-i.ins." Put him into the Ul 
iii.:.i:c. A o«r.rx i»f ''cc-n!; Thttivre iua_\ ', if Iwuishaicr.i'it tbc \iapisis. 



f1\e an «.Ath. Dtsude !• >«.ih n."» pnvilcirt.. j S!r Fr .:•:.*.* il ;Tii'.^-;t»n. I take this kh 
Ivw K':ij: lia^citir L<<r.lsd..>::>Mlij Ci^c ju.!^.'' sIiuns to be of ^rent iXHuxTiinient. Whnl 
mcut> in (Mf^!an.rnt? Tho kiii^;. .ls be.ii:. (>:«- > sptak acaiust such m«n as ibese, I speak 1^ 
sent lun, .ii'u iu uli liis ri^v.:-*^. ^i e puai>h iLc cburvb. Turtx- thrives iliis report nua 
here nbi:s>.^ t* ibe !it.:k;U>N •.four liouse. ■ u|K>n. First. Uud ai»d uu^tudent redectieasM 
yea. t'Mluir >4.n.im«: n.Lcii uv.to to tl'.e tlu- kins; ; and ii is our c.uty to take notice rf 
Lilly's hji»»xl. Ti <.:,:vr li.c ;i,<iij-i:iii:t. Let i >uch lutu. Next. 1 r.^«ir beard an v manso COB* 




nuc upvn a > « ji ii.'.riHiciT::. I'c.e**. did >%i«:ir. ht.\a\\ — lie u^. roikvs in Jimi out ot the paM 
*^ Ij***^ •**■■»• i> - -ii^i ir^v':l»|\, h«.r\, as iiiiin^>v«*:i'j: tbes«* *iiH*in:ws, aiM this inagniDBI 

*«r IPfc*"'*'**'"''''"^ ''*'"^ a Uvk.' . hisoiiti'vv. iha[ i uusik^nt iu imenalof MT- 

%8r FK-s.-ii^^- . .r-, ;...i j;- j-^ ..^ ., f.^ L.,i,uiii. i:i ibe KMut>s» of the papists. Itii 

inptua to t*A(. ijUfc^vivu. wLtihtr iLe jud^- [ «»oriliy jour coorsideriUi.Hi what to do wJA 



STATE TRIALS, 32 Charles II. l6S0.^Pnvilege of Parliament. [122 

one of the raosit capital cities of the kinetlom f 
His punishment cannot be too great. He has 
not only delamed the king", but spoken re- 
proachfully of the protestant religion, and of 
queen Elizabeth . So one protestant would do 
it, and he has cast the plot upon the protestants. 
Should you pass but a light censure upon this 
man, he would laugh at you. Thei-efore 1j« 
sura that in your vote you hit upon every 
thing he is guilty of. Two or three gentlemen 
may withdraw, and word the question. 

Upon proposing the Vote against him, (see 
p. 7. tup.) 

Sir William Jones. You have made a just 
Vote, but if you do no more, he will come off 
too lightly. You may trust him now with this 
Vote in an^r judicature ; but 1 would stop the 
mouths of his fellows, and in the face of all lh« 
workl, I would publish the evidence against 
him, and let tlie cliurch-nien see what sort of 
sons they have. Tlicy who think liim too little 
fur impeachment, think him too big for a bill ; 
but, to preparo the Lonis and all men for his 
sentence, 1 would inmcach him. 

Colonel Titus. No man thinks that this 
Tliompson deserves punishment, and a severe 
one, more than I do, but I am at a stand what 
that shall be. You are mcived for '* Banish- 
ment with the most considerable papists.** I 
do think him a papist, and much more because 
he calls himself a Protestant. 1 do remember 
several persons you have impoachetl, an earl 
into a duke [Laudeniale,] and an earl, almost 
into a marquis [Halifax. He was funm after 
so created.] And some into being public mi- 
nisters, llie effects have been like thunder 
uiion mushrooms ; it i\(ws but make them grow, 
not blast them.* Dr. Muinwaring was inqieach- 
ed by the Commons, and was brought to the 
bar *on his knc^es in tlu^ Lords House, and 
he there recantcrd what he hud writttMi and 
preaclied. He was Dr. Main waring f More 
you impeached him, and was lonl l»isliop o£ 



ID. I have heard of a precedent of sen- 
I such a peison to ride through the city 
m face to the horBe*s tail. If you bonisli 
: is tlie %ay to make him a cardinal ; 
ompan^ asyou intend in your bill is pre- 
it to him : oome men we see will strug- 
rd to keep the protestants from being 
, and 1 must believe that, at the bottom, 
ore popery better than the protestant re- 
» e may raise a dispute amongst the 
; though tlie man seem too Uttle to hn- 
< yet his crimes arc great enou]^ for the 
hus of England to charge him upon; 
I the bishnps see what kind of cattle these 
SI scandalixe the church. Therefore I 
I Rsolve upon some questions, viz. '^ ^JTliat 
I bnpndentlv scandalized his majesty and 
sicstaiit religion ;" and when you have 
oe to the vote upon him, the best way is 
ke him exemplaiy. 1 was thinking of a 
hill, to pot a character of disability upon 
for really there are such a multitude of 
e IB tlie plot (and that borders upon it) that 
isoot well impeach him. Such sort of 
CIS these absolutely endeavour to destroy 
Uctrine ol' the church, and to bring in 
tt, and such as tliose tliat foment dis- 
iH amooffst protestants. 
mot Maynard. This Thompson is as 
piT a man as can be ; he has scandalizcMl 
Hs^ fallen upon the dead, that most exceU 
pineess queen Elizabeth, and scandalised 
piMuiants in the pulpit, Ixsides prosecuting 
I fir not coming to church when the church 
nvere shut. I wish you coidd punish him 
« ^te^tny^. I think ' he that scandalized 
y*n of Doheiiiia had sentence, by im- 
■BBnt, to ride with his face to the horse's 
^* ta I nfiuld not send him bc*yond sea, 
'Jot ks will he favoured. I would fain 
tMv tftf fathers of our church will look 

• 4b man. 1 wonder that he has been 
fc*lhithe church so long. I would im- 
Ms kim to the I^inls, and then sec whether 
■iMV mend their judgment against liiui, in 
■i Wbirh will be iinich more terrible. 

• Wtf. Lff. It is necessar}' that you take 
■J •!* this matter. Tliis spirituni sword, 
■■tjbiy all compbin of, docs the mischief, 
■e hdhip of the proper diocese had done his 
^1 he had savcil you this labour. Therefore 
■■ii Mss a vote, " That lie is a scandal to 
**■ nioclioii, and that he has dishonourtnl 
tmm :" ud add what you will else to it. 

K The great tendency of the evi- 

** That he defamed and cried down 

Pray put that in its proper 

' Hfsi. When one considers what mon- 

are against our liberties, and 

govemmeDt both of church and 

I are a sort of protestants, who 

k ^.the profession of the j>rotcstant 

;1» ayare the protestant religion . And 

I'thH Hr. Thompson do this, but in 

* See Fbyde's Case, 



* The like happened here. See the note at 
the beginning of tiiis case, p. 1 . 

fHee his "Case, vol.3, p. 335, of this Col- 
lection, where it may be noticiHl that one part 
of the judgment prunouncril against him was, 
" That h(^ should be for evi-r disalileil to have 
any ecclesiastical dignity, or s<H'uiar office.** 
On the 18tli of April, 1(340, in the ucvt parlia- 
ment that met after iliis transactiou, the l^nls 
took up this ImsincKs again ; and, huvini; n;ad 
the declaration of the (aiiuuioiis against the 
now bishop of St. i>avid*s, and the M.'iitciict' <»f 
the Lords, they ri'ter the whole to their C'om- 
niittee of l^ivilegtN, withlc:iveto the bishop 
to allege any thing before the said Coiniuiltee^ 
on his part, either by pardon, licence, or otlier- 
wise. On the 1\sx of^ April, they order the re- 
cords to be brought, that the House may de- 
termine this cause. Hut on the S8th of April, 
the king sends a message by the fjonl K»'p«n-, 
** That nis majesty, understanding tlK-ro w\\% 
some question conccrnixig Dr. Mainwariug, 



123] 



STATE TRIALS, 32 Charles H. l^SC-^-Cur oj Jame$ Stetie. (i 24 



St David's after. Some have moved, " That 
this Thompson should ride with hisfaiceto the 
horse's tail ;" but that would be something se- 
vere to one of his coat ; but seeing he has for- 
got his coat all his life, the Commons may for- 
get it for one day. I would impeach him, that 
the bishops may see what thdr sons have done: 
* Hsec est doctrina hiii vestri.' They have so 
countenanced this doctrine, and have been so 

now bishop of St. David's, had given command 
that the said Dr. Mainwaring shall not come 
and sit in parliament, nor^send any proxy to 
the pariiameiit." Thereupon, it was oniered 
to be enter€>d so. Lords Journal. *' I do not 
recollect," says Mr. Hatscll, " to have seen 
this last very extraordinary (and illegal) exer- 
cise of the kmg's authority taken notice of in 
any history." See further. Commons Journal, 
the '^Sd of Feb. 1640.^See, too, Sheridan's 
Case, A. D. 1680, 1681. 



far from ponishing him, that they have pie- 
fenred him ; and therefore they are thougll 
by ill people, great finrom«n of this lam. 
Thereibre 1 wmild impeach him befote tk 
Lords. 

Sir W. Janet, I cannot teU when fait b- 
peachment will have an end, wfaeliicr evcrK' 
no; therefore I would publisli wliat iiagaiHl 
him, as a warning to other church-men, auAfa 
justification of yourselves. 

Sir J^. Winnington, I kwk apoB Ais dwfi 
against Thompson as a national huaoem, til 
to be part of the plot ; and such thingt mfbm 
are fit to be known to the world, that they nnf 
see what is libelled upon the king. 

Mr. Harbord, Some of the devgy art rt 
afraid that we should unite, that they are thnrtf 
papists themselves ; and as ibr the churdl it 
£ngland that ha^-e endeavoured to aiqpene tK 
let the worid see what sort of cattle they hm 
up. 



273. Case of James Skene, for treasonable Opinions and Decla- 
rations:* 32 Charles II. a. d. 1680. [Arnots Collectioa 
and Abridgement of celebrated Criminal Trials in Scotland] 



The prisoner, who was brother to the laird 
of Skene, was prosecuted at the instance of his 
msyesty^s advocate,! for high treason. He wus 
charged in the indictment with being accessary 
to the rebellion headed by Balfour of Kinloch, 
and Hackftton of Rathillct, at Air's Moss and 
Bothwellbridge ; with having maintained the 
lawfulness of that rebellion, even in presence of 
the duke of York, and of the lords of privy 
coimcil, and those of justiciary ; with having 
jiistitied tlic excommunication of the lung, and 
having maintained it was lawful to kill him, &c. 

The proof ailduccd a^inst the prisoner was 
his own confession, emitted before the duke of 
York and privy council on the 13th November 
1680, of wliicb the tenor follows : 

He said, he did not know who were rebels, 
but denied that he was present at the battles ol' 
Bothweiii)ridge and of ^Vir's Moss. He thought 
the persons engaged in those insurrections were 
not rebels, for they were in defence of God's 
cause. He was not at the Torviood conventicle 
when the king h'bs excommunicated, nor did he 
know who contrived it, but he thought the rea- 
sons of the excommimication just. He acknow- 

* Records of Justiciary, Nov. 22, 1680. 
t Fountainhall merely makes mention of this 
Case with that of t\io other persons, thus: 

" kf ^^'"**'' '"^^^ ^^^^' James Skeen condemned 
to be hanged for disowning the king ; and on 
™ a9th of November thereafter Potter and 
^ftewart are condemned for the same." Deci- 
«««»• vol. 1, p. 117. 



■ 

lodged the burning the acts of pariiameoty bfc 
cause they were against the Covenant; api 
would not admit the authority of tlic long or' 
parliament in things that were against the Co- 
venant. He did not know if any new insume* 
tion was plotted ; but he believed that God'k 
people were always ready to take arms in 4e« 
fence of themselves and oif tlie gospel ; that be 
was one of God's people, and iiad resolved ti 
give a testimony for the cause. — He thovgbt 
tne killing of tuc archbishop of St. Andrnm 
\s9& not murder ; That there is a declared ww 
between those who sene tlie Lord, and tfaoift 
who serve the king against the Covenant ; anfl 
that it IS lawful to kill such in defence (xf ths 
gospel ; That the king being excouunnnicatedp 
and there being now a lawful declared wtr 
against him on account of the breach of the (co- 
venant, it is lawfid to kill him, and all those wbt 
are in opposition to the Covenant. 

He renewed his confession before the Cout 
and Jury. He was desired to deliberate bcAn 
he should sign it : He answered, he had re- 
solved to sign it ; he tliou^ht it his honour to 
do so ; and he did it accordmgly. 

The Jury unanimously found the priaooer 
*< guilty of the treasonable crimes and expres- 
sions mentioned in his dittay, and that by bit 
own confession.*' The Court sentenced hun^to 
be taken to the Cross of Edinburgh on the S4th. 
of November instant, to be hanged on a gibbeft 
till he be dead, his hoid to be separated frcun }m 
body, and fixed on the Netherbow, ami his whofe 
estate, real and personal, to be forfeited. 



STATE TRIALS, 33 Cuaklbs II. iGBOj^Can of John Niven. 



[126 



Case of John Niven, Captain of the Ship Fortune of London, 
for Leasing-making against James Duke of Albany and York: 
3S Charles II. a.d. 1680. [Arnot's Collection and Abridge- 
ment of celebrated Criminal Trials in Scotland.] 



B pritoner was aerred with a criminal in- 
CBt at the histance of his majesty's ad- 
e, teCtin^ forth, that, by the statutory 
ud the practice of this realm, Leasing- 
Mgt the engendering of discord between 
■g and his people, and the uttering slan- 
ttipeechesto the disturbance of govem- 
,tte crinMs of a capital nature, yet the 
Mr had been guilty or them \ by railing 
a the duke of Albany and Yoik, the 
I brother ; by charging him with being in 
to take the King's life; with combining 
ibe French king to invade England ; and 
Doming to Scotund on purpose to make a 
to introduce Popery.— Friyolous objec- 
to the relevancy of the indictment were 
' for the prisoner, and repdled by the 

Ham Eccles, writor in Edinborgh, de- 
; that« being in Dvsart on the day libelled 
■pany with the prisoner, and some others, 
inner inquired at the deponent, and the 
r the company, what stile of reception 
doe of YoiiE had met in Scotland? To this 
Moent answered, < he had been received 
fag to his great quality and merit, and 
a fine Prince;* and the prisoner 



Rccenbof Justiciary, July 15th, 1680. 
kiwry nninst accmint of this Trial is given 
ii Fsanteinhall, in his Decisions, vol. l. p. 
The prisoner indisjiutably fell within the 
■ioil statutes agaust I^easing-making, 
loe seems no doubt of his having be^ 
raf the fact. Fonntainhall is deemed a 
r sf amhority. He' was upon the side of 
ui Gbaty ; out any one who is conversant 
'^uis of that period, and who compares 
of his knowledge with the cases in 
. must be sensible of the extreme 
fity of that writer ; a propensity which, 
M sneh as those, it was very difficult to 
.— Hia partialitT is the less surprising, as 
not to have been untinged widi 
B ; and those who have occasion to 
! hilt Journals with the original records 
r, wOl we little reason to compli- 



Ml Dpon his accuracy. 
•MmbmU's account is as follows : 

g. July 16, 1680. Niven, the 
dap, was pannelled for using some 
BBoa against the duke of York, viz. 
ron the Popish pfotof taking away 
^fife, and oveftuming our religion 
nnnt ; and that he was to consent 
iamg over tha French king with an 
•firi&n ; and that he had come him- 
to make a popish faction there. 
lId cnpa, waA^ with some qua- 




replied, there was not one of ten thousand in 
England who would say so. He added, tliat 
the duke of York was in a plot to take the 
king's life, and had combined witli the French 
king to invade England ; but the deponent can- 
not say whether the prisoner expressed thes« 
words as his own opinion, or that of the people 
of England. The prisoner at the same time 
said, no man had a greater regani tlian him 
for the duke ; that, under his royal highness's 
conduct, he had lost part of his blood in hia 
majesty's cause ; and that he would be ready 
to hazard his life in the duke's service. 

The prisoner objected to Williain Tarbett, a 
waiter, being received is a witness ; but hia 
objections were repelled. Tarbett deposed, 
that he was accidentaUy in Burntisland, m the 
house of captain Seaton, where he fell in com- 
{mny with the prisoner, and two EngUshmen, a 
shipmaster ana his mate, and frc(|uent]y over- 
heard discourses lietween them relating to go- 
vernment ; aii<l heard the prisoner say, mat 
the duke had come into Scotland to make a 
party tor introducing popery, < but our good 
old English hearts woiud not suffer that.' 

Michael Seaton, against whom also the pri» 
soner urged objections which were over-ruled, 

lifications ; yet he was conveencd on the acts 
of parliament against leasing- makers betwixt 
the king and his people, though it was objected 
these acts did not meet this case, he neither 
having lied to the king of his people, nor to the 
people of their king ; and at the most, it was 
but tcandalum magnatum^ and in England such 
a process would he laughed at. Yet his de- 
fences were all repelled and the dittay found 
relevant, and the ubd sustained, and admitted 
to probation, and he put to an assize, whereof 
7 cleansed him, and 7 found him guilty ; and 
the balance thus standing e^ual, provost Binny, 
chancellor of the assize found him guihy ; 
albeit the dittay in it*telf was neither relevant 
to infer the pain of death, nor was it proven 
against him ; but this was done to fright Kng« 
land and gratify his royal highness. But tho 
moderation of lex imic. Cod. si quis imiierat* 
maledix is more commendable, and such a 
practice should not be standing on record.— -It 
IS true he deserved a severe punishment, but 
law cannot stretch it to death. The pronounc- 
ing of sentence was delayed till the 4th of Au- 
crust, on which day thev ordained him to h% 
hangfcd on the 18th of Aui^fiist theroaltor : Bui 
the judges knew the king, by tlic duke of York's 
mediation, was sending a remission, at lea*(i 
a letter converting the sentonor to hutiishmonty 
and confiscating liis ship and all his goods, but 
preferring his credltori therein to tlic link. 



127] 



STATE TRIALS, 32 Charles II. 1680.^- 



« ^sinH 



deposed, that in his own house in Burntisland, 
upon a Sunday in April last, he was sent for into 
the room where the prisoner, two £n|gr|iBh sea- 
men, and Wiitiam Tarbett were drinking. He 
heard Niven and the other Englishman sj[>eak- 
ing extravagant commonwealth languiupe, and 
particularly concerning the duke of York. 
He could not be positive tliat the words were 
those charged in the indictment, viz. that he 
had come to make a par^ to introduce popery, 
but tliinks they were to that purpose. 



The Jury, by a plurality of Toioea, ion 
prisoner cruilty of leasing making agaim 

On the 4th of August, the ooort sent 
the prisoner to be handed at the cross of 
burgh on the 18th; but, on the 6th o 
month, the oourt, in consequence of an i 

E council, proceeding ufion a letter fire 
suspended the execotioD till his m% 
r pleasure shoukl be declared ; and 
not appear that the Sentmoe.erer was en 



275. Proceedings in Parliament against Edward Seymour, < 
a Member of the House of Commons and Treasurer of 
Navy, upon an Impeachment of High Crimes, Misdemeai 
and Offences: 32 Charles il. a.d. 1680. [Journals of 
Houses; 8 Grey's Debates, 35 ; 4 Cobb. Pari. Hist. 1222 



House of Commons. Nov, 19, 1680. 

Mr. Vemon. " I HAVE Artides of Accusa- 
tion of crimes of a higli nature against Mr. iSey- 
niour. I think he is not here. I shall under- 
take to prove them. I move that he may he 
here to-morrow morning' to answer, and his 
charge will be brought in. To charge him, 
and not present, 1 know not the method of par- 
liament, but we have Articles ready. 

Mr. Pilkington. T desire he may be here to- 
morrow to answer his charge. 

Orderwl, Thai Kdward feteyTnoiir, esq., do 
attend tlie ser\'icc of this House, in his place, 
to-morrow morning. 

November 20. 

SSr Gilbert Gcrrard acquaints the Honse, 
That he had Artides of Impeachment of High 
Crimes, Misdemeanors, and Offences, against 
Edward Seymour esq., one of his majesty's 
most honourable Privy ClJounril, Treasurer of 
tlie Na\ y, and a member of this House ; and 
then procetnlwl as follows : 

Whenever such Articl«\s arc bronjjht to my 
hands, and I am satisfieil with the proof of 
them, J take it to be my duty to exhibit them. 
1 shall only say, 1 have knoCvn this ger.tlemun 
a long whde ; ms fortune %vas raised iu this 
House, and how he comes now under suspi- 
cion of these Articles, he can best answer. 
This srentleman (if what fame says is true) has 
hiboured with industry to prorogue or dissolve 
this parliament, which all think will ruin the 
kincT, religion, and all we have. I make this 
U!seofit, that the king kno-.vs whether S<*y- 



mour has attempted this, or not. I ho| 
will think that none guilty of snch crime 
fear a parliament. One tilling more ; wit] 
impenousness did he put the Commons h 
tempt, and did talk of *< Wind-gfunsT* 
lieve you will find matter against him, ti 
him to the Tower. 

Air. Seymour. In order to methods of ] 
ment, the reading of the Articles must ha 
motion seconded, and I do second it, th 
Articles may be read. 

The Articles were then read, and i 
ibUows : 

Articles of Impeachment of High C 
Misdemeanors, ^id Offences, a^ins 
WARD Seymour, csc^., one of his ma 
most honourable Pnvy Council, Tre 
of his majesty \ Navy, and one of the 
l)ers of the House of Commons now I 
hameut assembled. 

" 1. That, %vhereasthe sum of 504,97 
Qd, was raise<l by an act of parliament, 1 
s|K?edy building of 30 ships of war, andtl 
appropriated to the said use, by whicli 
was particularly <lirectc^, '* That tlic tre 
of the na^-y should keep all monies paid t 
by virtue* <»f tlu* said act, distinct and 
from all other nicmies, and should issn 
]iay the same by warrant of the princips 
cers and commissioners of the nar\', c 
three or mon* of them ;" and mentlonii 
expressing, " That it is for the buildin 
cruns, riorging, and other furnishing of tl 
, tliirty ships of war, and to no other use. 



* This Mr. Seymour, who succeeded to a l>a- 

roiietcy upon the <ltath of his father in 168H, 

aiul is perhaps more known by the appellation 

ot Sir Edward Seynioiu-, hu^l l)een thirteen 

yewrs before this tinn» vt-rv active in the ppo- 

asecution of k)rd ClaivndoM [Sec the proceedinirs 

«kS:;aiiwt the eari of CUmidon, vol. r>,p. 317, of 

tl»js CoUectiou 4 Cobb, Purl. Hibt. 470 et I 

4- I 



S(H\. and the Continuation of lonl Clare 
LittO. It is obser\ able that Artingtuu [J; 
Casi% at*te, \ol. G, p. 103;J] Si^vmour ai 
\xtn\e [Set? ih«' Cases of the earl of Daul 
of the duke of Lee<Ls, inf'ru'\ who had a 
liiost eager and mosi; bitter in the attack 
Ciai-eJidon, all in their tiuns became the i 
of siuiiiar attack^', lu the Coutinuatioa 



I STATE TRIALS, 32 Charles IL iGSO.-^Edufard Srymovr, esq. fiSO 



rposc whatioeTer ;*' ho, the said Edwnrd 
mjut, oq or about the yc&r 1677, beings 
treanuvr of tb« Da%'y, did, oontrnry to the 
iTt, and coDtnry to the duly of his said 
I knd the sum of 90,000/. at \i per cent. 

itlonl Chrendon, coutains a passa^ M'liich 
ther uninteresting in itttell', nor uncouuected 
diis ofacervaticn : 

Before the meeting ni tlie parliament, 
lit was well known that the fMiiubination 
stored into by the lord ArUng^on and tdr 
MB Coirentry against the chancellor, seve- 
RinberB of the House infonued him of 
itbey did and what they said, and told him, 
K tlierv waia but oue way to oreveut the 
ndioe intended tov.ards hini, uhich was by 
01^ first upon them ; which they would 
le tif be done, if he would assist them 
I such irtfonnation as it could not b= it be in 
power to do. That he never said or did any 
g in the most secret council, where they 
■ere a! vaya pivscnt, and where there 
e firqent 'occasionsof mentionioGf the 
9eedin2S of both Houses, and the be- 
isvof s^^veral mcnibcra in both, but those 
ienen declared the same, and all that he 
Ivdi-l, to those who would be mostof- 
U and ioceiAsed by it, and who were like in 
eesDJuncture to be able to do him most 
chief: And by those ill arts they had ir- 
nalf' d ii*aay pci'sons to him. And that if 
roci'i now, \ritiiout its bcin;^ possible to be 
» BQCioe of. }f:ve them sucii inibnuation 
U^ht into the iirocecdin^ of tliuse g'en- 
ken. thev would undenJce to diven the 
«tbit threatened him. and caase it to fall 
KikK others.' And thii» was with much 
HteM pressed to him, not only before the 
lav tf ine uarliamcitt, and when he was 
'Mmed or the ill arts and ucg-entlemanly 
(iee iboae two persons were cugaj^ed in to 
Si burt, hut after thf Houa»e of Commons 
BCeaMd ai^nst him ; witli a full assur- 
** that they were uiuch inclined to have 
t4 the other two, if tlie least occasion was 
far it.' 

lot the chancellor wunM not be prevailed 
sayinsr, * That uo provocation or exam - 
dioidd dispose bim t>) do auy tiling that 
id not become him : That they were both 
y eounisellors. and trusted by thf king in 
MMl weis^ty aflaiis ; and if he discerned 
tkiny aiuiu in them, he could inform the 
f flf It. But the aspersing or accusing 
B ■Dv where else was nut his part to do, 
Miri it be done by any without some re- 
in upon the kin'/ami duke, who wotdd be 
il Mended at it : And tliertforc lie ad- 
Mhbi in no degree to make any ««uc}i ut- 
S > — hii behalf; but to Icrat e him to the 
iflf bis own innocence and of God's 
Mue, and those ^r^utlemen to their 
p which at some tune would humble 
Aad il is known to many periions, and 
» Ac king himself, for whose service 
An WW pcrfonaed, (hat gpe or both 



parcel of the said sum, raised by the said act, 
being tlien in his hand:., for anil tonards the 
support and continuance of the army then rais- 
ed, afWr such time as, by an act of parliament, 
the said army ought to have been disbanded ; 

tho«;e persons had before that time been im- 
jieached, if the chan<*ellur's sole indu>try and 
inteieut had not diverted and prevented it.' " 

8e(f also lonl Carnarvon's Speech cited in tlie 
case of lord Danby, irt/'rti. 

Burnet says of him : * «* The ablest man of his 
par^ was 8eymour,who was the first Speakers^' 
the Uousc oi Ooumions that was nut bred to the 
law. He was a man of ((rcat birth, being the elder 
branch of tlie Seymour family ; and was a grace- 
ful man, bold ami quick. But he had a sort of a 
pride so |>ecidiarto himself, that I never saw any 
thing like il . He had neither sluune nor decency 
with it. He was violent against the court, till 
he forced himself into good posts. He was the 
most assuming 8i)eaker that ever sale in the 
chair. He knew the House, and every man in 
it so well, that by looking atiout he could tell 
the fato of auy question. So, if any thing was 
put, ^vlic?n the court party was not well gamereil 
' together, he would* have held the House from 
doing any thing, by a wilful mistakin;^ or mis- 
stating tfio question. Hy that he gave time 
to those, who Tvere appointed for tliat mercenary 
work, to go about and gather in all their party. 
^Ind he ivould discern wlien they had got tnc 
majority. And then he would very fainy state 
the question, when he saw he was sure to 
carry it." 

Ailcrwaitls, speal;ing of the parliament which 
met on Mai-ch 6, 1679, he says : " Seymour 
had in the last session struck in i\ ith sucn heat 
against Popery that he was become popular 
upon it : so he mannged the matter in this new 
parliament that th(»u£;h the Court named Meres 
yet he was chosen Sjieaker." This heat of his 
against Popery was probably one cause of the 
king's rejection of him as 8j>eaker (Sue the ac- 
count of the proce;.HUng:s thereupon given in 4 
Cohb. l^rl. Hist. 109V et seq.) but sutecqueutly 
Ut tliat occurrence he had strenuously opposed 
the bill of exclusion, which probably was one 
cause of the hostility of the Commons ai^ainst 
him on the occasion before us. Nevermele^8 
we are informed by Burnet. (1 Owu Times.) 
490, that in the next year (ICBl) he liked the 
pniieet of declarinj^ the prince of Orange regent 
with whom the res[al ])ower should l»e lo«l|^. 
Whim the princt*of Orani^ had landed hejofned 
him at Exeter, and \iasthe projioser of the ' As- 
sMriation.' The I'rince intrusted to his gorem- 
meat Exeter (of which he Mas Uccordcr,) and 
Ih'Tonsh irtN i M' the various sulisequent changes 
and chances of his coniluct and fortmies, Burnet 
mentions several particulars, but f doulit whe- 
ther any of them are sufficiently uncommon 
in the history of political life to require distinct 
mentic»D in this place. 

Tlw? roOowiii;r may serve as speci Tienn, and 
it is to be hoped, will satisfy tbt ^'ueralHy of 
readers : 

K 



131] STATS TRIALS, 52 Cii a rles II. 1 Gso.-^ProaeimgM^ga^ 



wherrhy tlic »nhl two spvrral nds were ekidcd, 
anil iho said ium\\ wax roiiiiniKil, and kc*pt on 
foot, to the ^mii distiiriiantv, liazani, and 
dftnpT of the peni'C ami safety of this kinfr- 
doni ; and the nation was afteiwards put to a 

In relatin^r the ilisco^iTV of the comiptM^ns 
of tlie ohi £ust liuiia Cuinpany in tlie year 1(>95, 
the ItUhop tolls us, *» It was oliservt'd that ! 
some oV tlic hoitoMi siicklf rs against the ct»in- , 

tuinv did iiisiiisiUv, not only fall otf th*iu that ' 
Ktit, hut turiitnl lu s«.-ne tho company as much 
M thry hudai first endeii\ mi nnl t%> destroy it. 
Kt*\inour Miu< ainoni; tho rhief of these, and it ' 
was said that ho had l-J.-vi"*.'. <f tluir unmey 
iindiT the colour of a har^uiti tor iheir sait- 

\jrain in spt^kin^j <«f kinp M'ili law's filth 
(uniAiuoiit \»U:ih m:t tor «:;< patch o;' bu>ic«.^ 
«» ;U,' U'l'tt i.f Mar^-h l7tM. nmnit sja-s. 
" I jwm thr view of tht* Hrtus«\ ii a;»{H.u-«ni 
u*rk- ciidcMily . thai :So Torii-s uon^ a ir?v it iivi- 
j«vil\ ; \('t iiir\. to uvJwO toiMuattor surr. r^- 
»oht>l to cU:ir iIh" Ji'mj^^ofa crcat u»nny. thi! 
i%tTX*0!\ir-"-C^"'l in au« ih-.^ it;iereisi : R'rjMrts »c re 
hi>Mi-^-|it tM ihiiu «4' ct«\-:ii*i»s. ihi: ItJo Uvn 
ATar.dil.M^slv iMKx^id.^'tl. hv SiV.v; vh»> v.cri- 
tSH^'^'tluVl I'.l I IS: i>t-.» |.,\sl InJiA Co»vp.*i»v : 

in<t«tid ft" orinV:r;i: an<i cnii-naiRior ■■.:>. K 
w hivh «\vi I "» .s « ^Tt r ir."iH : i \ lo ?.:\ • .t-i. rjow \ 
nu>si >\'>4i>iikHi> prs^iixv «as Kx^UiTi-.s m f f 
K-,x:i\r it-*:^. ii»:vfi j^> l:nV tWeTic\ thai tht 
^fc\^^N i:-.^^i4>\i l■^?rrM^c> ry sj^m:' -h^. 
t."* s h .-:.<( % S^^kA •*;r^•^. iv 1, > ;li x wx?y i .:>:- 

<\vr.'. : '; •>:; »..:.;. c . •. vn \i •.: :^ <> V r: V <- " "-iTit*, 
f*i*i ti>T'nrvi .v.r.v.»ji^\ ■•.-u^.?t\i lo •••"•'w Th:'.- 
c\Ti-.« V, Nil ^^ .::: ir.'-K ■. :?..>.>,v. 5>*i. wV.-v** 
tV r,>ai*«' K*'! .•■•cj^i T^f ]>;•■>*•«:» «**.'» ^«« 

K-.t ••?\? S.y:\».x.-. w r.-» *.r ^ .Sr*h :? :*»s e^v- 

cwvT.-ki.^x vfc< >a>" r.^ ^jiv Kx^>t Kf?.\'Y, *s 
a 1 tv\ r.^ii Tin x. S-.xiitM SrwcY i>^ H.cw « 

up vias« A&\> , "ri c.-sBc^aw.^?. 

nr uriTM z.'Wff Wire jt 

s Ar^^ra n mcsk cmhk.. oJr*?f. 70*01 

uronr ir oif 








1^ Iv^ 




new charge of raising and paying the a 
SO0,000/.Tor the disbuidiDg of the nid 1 
•* Q, That, whereas anactof parinna 
tiassed for raising money fay a poll, for en 
iiki majesty to enter into an actual war a 

sisrency, disinterested patriotism, and nnn 
other virtues. Thus it is, as BIr. Burfci 
** These gentle historians (yoor Ciartn 
Norrd^-s, and Clamurieiix, and Rouge Dn 
recortfers and hlazoners of virtues and 
dip their ]feii<i in nothing bat the milk of I 
kindness. They se<rk no farther for 
than the prearchle uf a patent, or the il 
tion on a ti^iub. With tliem every man a 
3 pe*-r is lirrl a hero ready made. Tim 
ot e^ery n::ir/s capacity" lor office t 
odtce* ie has !^!V-d : and the more offic 
irore a'i;li*A*. Ewry general officer i 
thorn a T»!ar!borouirh." ererv statesman 
l^'Jj, ever\' jiidtrf a >T[urray or a 
1 1.' V who slife ^Tre lauirhed at or piuea 
tlipii ac»!i!riintacce" ''he iniirlit hare addii 
irc:\ o'h'.j-iiiced or detested by all who b 
kn-v4l*.<?s^ of tL::r characters] " na 
tr^'y I a r.iHi^ a^ :!ie b^t of them, in tha 
t f f T« i ::!rrc . £/j.z\ '•r:K'ti aad Cdhns." L« 
a >•> "' I^>rd. :»..\:.5hed in the year 17C 
I >J>;:d ihio l«-li«'ni:nr passaife fitK" 
Ff\ > HiiTw ot ihr e:Li^y part <<tbe R 
Jc:i^;5 •/.'•e Sc^>r.-^. becau^ it exhibiua : 
r»M;< p^r: f Sr-i nx* r's condoct* and a 
c-is-L' ;: i.T*>"'^# !i^it on ibe autheniz 
i"o tr.-.7.-.:i: -JTHit-.-s %-l" En^■b^b hi^toa 
•r'.-;. •,- •/'■•: :.-ir.s5.- :i -s* which occurrec 
."r-f ni^i: of i**e ■ trL:.ii>r^t in the year U 

- %5 •.b? srsi : '^Teren'x wa* cnaniir 
i^jer? 5.^* r-:< a>:«?*r :> bsT* been Vij 
^t.\> rt.-r. ;\5S.\ Sir sJrti a (kfifite c 
:S'-.i£* H.:-!^ e^.r-V y< >--i«i! pages 'at 
Vf i-^iirj-f^tf w z-r.^'i. be iiSnrt*. were ■ 
T t/w ,:?;; f. Lr»". E> \r: ^><* 11*1* unde 
-- :>f H: j*< T I 'Tr^r^ --..^ t*^ and aca: 
C'aftO.'C ; «:-£■- 3*1:7: ■• v ijrb. on ImIi 
^^'v. t: irr>"» s :• irai'rrrt:^ k*«e rffr 
tzti ^X9>,:<\ ri •". - L :• •■• -r. aad are 30» 

>iv*r".-.* T» tS* i.-:r - > .v 1 -razac< T»nd- 

iT* ^.MTtC Tf T.'.i^i. "LI ir CfC^CT the 1 

^^•»>. R.i3»r rt* iiTtrarftL «■ mdee 
fcWr. » -■••Y ir-i .M 1: rt7<>7is^iB %9 the 
TVe f*r.M icitf*!:*.-!! 7iii*->r LjiffB fkc oc 
w«renf 7^ "w^f i«fc»t mr : tt Mr. .a ftfiw. 

^iik*r> . I >c>ii»mM '•j«T-"w:r <ff "ie Ex 
1^.!. aT»r ,r irf«iierft. fmit^iiAf^c t* asrel 
uinf^t^'i*' r » r T f^ -:-<.T. .n^ Ti* tyr 
Tiwfc»:frrrs »c ii-- ;:»:; ■••f*;^. li:^ ^e'v 
!ii>'nK ww»r i-i-^-Ti-r *»'nii-'«, x: ? 
iT«ifcC tt ^itm. 'ibr* im-^i^ 7 

?KV«?ji iwmnw Titf i-ttrtv hrt fSUM. tl 
> iiuk fe »ffe uir miM « ite Bf sat ! 



STATE TRIALS, 39 CHARLr.s II. l6B0.-~Edward Stymour, esq. [ld4i 



mch kine; and the money raised by 
of the said art vi9a thercl>y appropriated 
nid use, and to tlie repayment of suck 
s as shall furnish his majesty ^ith any 
of money, ur any stores necessary tor 



'tlie said service; and wlicrras c«;rtain Eastland 

merchants were desired by bisi inHJesty's otficers 

i to furnish and supply ^rcat quantities of stores 

: for the navy, and, as an encouragement tlicie- 

' unto, were as.sured, tliat the sum of 40,000/. 



tin, who were the legal members, before 
pjoeeded to other business of importance. 
bavinj; pressed this point, he obsei-ved, 
fever it were necessary to adopt such an 
if pfticeedini^, it was more peculiarly so 
vheo the laus and reli^on of tiie nation , 
n erideat peril ; that the avci'siun of the : 
ii people to popery, and their attach- 
lonie laws, were such, as to secure these 
IP from destruction by any other instru- 
lit}' than that of parliameiit itself, which, 
cr, miifht be easily ac&mipbshed, if there 
I parliament mtirc-ly dependant upon 
u ho mi^ht harbour such desi^s ; 
already rumoured that the Test and 
s Corpus Acts, the two bulwarks four 
■ and hbcrties, were to be repealed ; that 
le stated was so notorious :is to iic(n1 no 
HaTiiig* descanted with tiirce and abtii- ; 
m these, and other topics of a similar 
icy, lie unreil his conclusion, that the 
a of royal revenue oun;lit not to 
e first kusintais of the parliameiit. 
km's Dispatches, Jumf 2d, and 4th. 
dix. Ilumet, 2. S2i.] ^Vhethcr, as 
I tliink^, because lie was ti»o proud to 
say prc^iifus romuiuuii'ationof his inten- 
«r that the strain of his ar^^ument was 
I to be too bold for the times, this speech, 
ver serrpt approbation it nii^;ht excite, 
t receive fmni any quarter (rilhiT up^tlaiLse 
P|Mt. Under these circumstances it was 
MM^ht nercssary to answer him, and the 
I va voted unauimoaslv, viitliout further 



isBariOon, in the relation of|iarUhmf:ntary 

idines, transiuittLfl by him to his ciiurt, 

Brfa he apptrars at this time t<» have Im-cii 

exact, :;iv«s the sauie description i)f 

av'v speech and its otlects, with Kurnct, 

can be little ikiubt but thoir aiHHiunt is 

.t. It Will be found :ts well in this, as iti 

other instance;:, that an unfortunntc inat- 

«, 00 tlie part of the r'.*vrreii<l historian, 

IBs ha& maile his \eracity unjustly culh <1 

■rtiaD. He s{)eaLs of Mp*yintiur's s|Ki*ch 

a had been a motion in the tei'hnical si-ls*} 

■ Vttd, tor enquirin^r into the elections, 

h hid no eHiect. Now no traces remaining 

MhiinotioD,iuid on the other hand, the i^Iec- 

ihMebeen at a subsequent peritNl inquin^d 

blaWi ahnott pronounces the whole ac- 

PlbM crronecHis ; whereas the only niis- 

ipWH i in ifiviiig the name of motion to a 

^^<ii upon the oiu^tion of a |;n^nt. It 

"vii cnouiH^, cliat it shoidil Im from the 

fibe FretAch ambawHulur, tliat we are 

( neoncile to the reiMnla, and to the 

Iht tuigftiah Umise of ComiiKms, a 

■iihj adMnpuahed ratmber rf the 

•f JLotm.- KirMtt Kncsbv 



does indeed say, that anionic the gentlemen ol' 
the House of Uommons whom he accidental!/ 
met, they in general seemed willing to settle a 
handsome revenue upon the kinc^, and to give 
him money ; but whether their gi-ant should be 
permanent or only temporary, and to be re- 
newed troro time to time by parliament, that 
the nation might be often consulted, was the 
question. fiut besides the looseness of tlie 
expression, which may only mean that the 
point was questionable, it is to be observed, that 
he does not relate any of the arguments which 
\\ ere brought ibnvard, even in the private con- 
versations to which he rdcrs ; and when lie 
aiten^-ards gives an account of what passed in 
the House of Conmions, (where he was pre- 
sent,) he does not hint at any debate hav- 
ing taken place, but rather implica the con- 
trary. 

** lliis misrepresentation of Mr. Hume's is of 
no small iiuportaiice, inaHnuich us, by intimat- 
ing that such a question coulj be debated at all, 
and much more, that it wa^i debated with the en- 
lightened ^ iews, and boh I topics of argument 
with which his ^enhis h.ut supplied him, he 
^vcs us a \ cry i'also iiotifHi of the character of 
the parliament, and of the times which he is 
describinp^. It is not iinpn>b;ible, that if the 
arguments had lK>en iL««ed, which this historian 
KiipiKhU's, the ulterer of them would have In'en 
expelled, or sent ti) tiie Tower; and it is 
cer- t:iin, that he would nut have been heard 
with any decree of attention, or even pa- 
tience." 

It has been a fashion vi ith sonic writers to 
tlepreciate the venicity ot liunu>t. 8ir John 
IJuIrvmple says, " it is a piet'c ot justice i owe 
to InsUiricid mitli, to say that I have never 
tried Hi I rntt\ tacts by the tests of dates, and 
ot' ori<'-ituil pajii^rs, without tindins^ thein tvrong. 
For which reason, I luivc mafic little iLse of. 
them in thc^ Memoirs, unless when I found- 
th«*iii supported by <»ther authorities. His book 
is the more rcpivhensible, becamte it is full of 
characters, and most of them nri> tinged with 
the (Hilours of his own \\caknK.*s.st's and pas- 
sions :?' 1 Memoira, n». (As to the iu:curacy 
t»f sir John Ihihymplc hiniiiir, see lord Hof- 
land's Addrt«?s to' tin? Ueailer prefixed to >lr, 
Fov*s Ilistnry of the e-iily part of the rcigri of 
Jiuiii's the Scx-oiul, the Notes to 4 Laing's Hist. 
of Scotland, ami the Case of lonl Uussell, a.o. 
lOH.i, iiijtu). And Dr. Johnson, in more than 
out? passage of his works, gives countenance 
to the anputation. it may therefore not be im- 
proper to priveiit some additicmal ti'stimony to 
that alreaily nd'lucetl by .Mr. Fox in favour of 
tlie bishop.' Harris, ('.' life of Charles 2, 9. Note 
{y. Y.), id>er h\x\ ing by the evidence of a letter 
from the duchess ot* Cleveland, verified aa 



\3b] STATE TRIALS, 32 Charles II. \6so,^Procetdings agaitui [I 



parcel of the said monies ntiMd by the said act, 
was at that lime actually in the liands of the 
said £dward Seymour ; uhich lie diil acknow- 
ledge so to be, and did promise that the said sum 
should lie paid Xm the said uierchauts, in part ot* 
satis&ction for the said stores, which they did 
furnish upon the credit of the same affinuation 
and undeitaking : He, the said Edward Sey- 
mour, did, on or about the year 1678, issue 
out and pay the said sum to the victuallers of 
the navy, by way «)f advance, and for provi- 
nons not then brought in, contrary to the true 
intent and picanin^ of the said act ; whereas tlic 
same, by the provision of the said act, ought to 
Imre been paid to the Eastland merchants, who 

higlily improbable incident related by Burnet, 
observes, '' From tliis letter, we may judge of 
the goodness of Burnet's intelligence ; and 
reciity an opinion, bv too many entertained, 
that be Has hasty ana credulous, and a mere 
recorder of the tales and scandals of the times." 
Ralph uiyustly accuses Burnet of inaccuracy 
respecting the Bill ** For the Preservation of 
the Person and Government of his gracious 
Majesty King James the 8econd,*' andasserts, 
' That ui^ortunately for us, or this right rei*. 

* author, tlicro is not the least trace of 

* any such bill [as Burnet had spoken of] 

* to be found in any of the accounts of this 
< parliament extant ; and therefore we are un- 

* dcr a necessity to suppose, that if any such 
' clause was offered, it was by way of supple- 
^ ment to the bill for the preservation of his 

* majesty's |)er5()n and government, which, no 
*■ doubt, was strict enough, and which passed 
' the House of Commons while Monmouth was 
^ in arms, just bitfore the ndj«»ummeut, but 

* never reached the Lonls.' .?. «M 1. 

U|H>n which, Mr. Fox remarks, "Now the 
enactment to which the bishop alludes, was 
not, as Ralph supposes, a supplement to the 
bill for the preservation of liis majesty's person, 
but made part of the very iirst clause of it ; and 
the only inaccuracy, if inilecd it dc-servcs that 
name, of which Burnet is guilty, is that of 
callini; tht^ bill what it really uas,*a bill for De- 
ctarinir Treasons, and not };i\ ing it its ibrmal 
title of a Hill ibr the Prcsenution of his Ma- 
jesty's PersMin, iVc. The bill is foitunately 
preserved among the papers of tho- House of 
Commons, and as it is not, as far as I know, 
any where in print, 1 have subjoined it in my 
Appendix." 

^ That careful, judicious, aud sagjicious histo- 
rian, Mr. I^«aing, vol. 4, note 1, sa^s, 

" Burnet's veracity, at least in Scottish af- 
fairs, is attesteil throughout by his coincideuce 
with Wotlrow's History and original materials ; 
aB immense mass of -ilSS. in the Advticates' 
Library, which I luive carefully insiiected. 
The coincidence is the more n*inarkable, as 
Wodrow, who |mblisli«nl in 1791, 1799, had 
never seen Burnet's History, publislied, the 
flnt volume iu 1793, tlie second in 173*. in 
wntingfiruiniueiiiory, Bum^ neither is, nor 



JiadI furnished his majesty with flax, heg 
and otlier necessaries for the said Mnrke: 
which said deceit and injustice the amid n 
chants did complain in the last parliament. 

*' 3. lliat the said Edward Heymour, bci 
treasurer of the navy, and then and still havi 
a salary of 3,000/. per acmura clear fw the sai 
did, during the time he was Speaker of the 1 
Long P^iament, receive, out of the moi 
appropriated for secret service, the yearly m 
of 3,000/. over and above his said salary ; wh 
was constantly' paid to him, aa well during ^ 
intervals as the sessions of parliament; i 
particularly during the prorog^ion of fiil 
months. 

*' -1. Tliat, on or about the eighteenth y< 

pretends to be, always correct ui dates ; and 
nis latter days he w-as undoubtedly credido 
But his naniitive is neither to be rgerted I 
cause the dates arc displaced, nor are the gk 
ing characters of nature to be discarded bmi 
tliey coincide not with the prgudices of w 
writers. If we compare his narrative and d 
rocters with those of Clarendon, and oonoi 
how superior they are to ever}* cotemporaiy p 
duction, how frequently they have been ■!« 
transcrilied by succeeding authors; (Hm 
himsdf, for instance, who blames them mM 
and how im|)erfiectly their loss wouM havebi 
supplied by morerei'ent memoirs, we il 
discover the real value of Burnet as an hill 
rian." 

8ee, too, as to the comparative accnraej 
Burnet and Dolr^nnple, the Note to Mitchd 
Case, anie^ vol. 6, p. 1292. In that Note, In 
slight error of the press, the relerence to II 
r\'iu(>le's Memoirs is printed p. 94, to ed. 171 
i:)Stf!ad of p. 9, 4to ed. 1771. An instance 
Biuni'i'^ want of exactness in his expreHM 
which has been so injurious to his characi 
for vevacity, may be found in what he H 
(see vol. {'»,' of this C-ol'.ettion, pp. I-IJO, 14i 
of " Tlir Trial of Iieiand and others." C 
the Trills of Ireland, Pickering, and Grv 
vol. 7, p. 79; and of White alias WhitebcM 
and others, \o\, 7, p. 311. 

Seymonr is the Amiel of the * Absah 
and Achito^ht'1/ in which Dryden has raid[ 
him very lughly : 

" Indulge one lalK>ur more, my weary muse 
For Ainiel ; who aw Ainiers praise refuse P 
W ancient race by birth, but nobler yet 
In bis own ^vorth, nivl without title great 
Th« i^anhcdiim lonij I'u.ic as chief lie ruled, 
Thrir ro:if cii guided, -wA their passion oooT 
No drxtmiis was he iu tiio crown's defence^ 
S:i forniM to siK'uk a lo^al nation's sense. 
That, as their band was' Isr'eI'M tribes in i 
N<> til ivas he to represent thrm all. 
>fow nisher charioteers the scat ascend, 
Whose loose careers his sloady skill 



They, like the une(|ual iidei* of the day, 
:V!isgiiide the seasons and mistake the war. ' 



While he, withdrawn at their mad labour 
And safe enjoya the sabbath of hit tinla^'* 



STATE TRIALS, 32 Chaalss II. iSso.-^Edward Seyiaiumr, esq. [138 



sty's mgn, (1666,) and duriiur a war 
tun gqwral <if the United I^ether* 
the said Edward Seymour, being 
r theoommianonerii fur prize-goods, 
ileatiy, nnlawfiilly, ana in deceit of 
r, unlade a certain prize-ship, taken 
ibjects of the nid States, without any 
iitthority from the same ; and did 
hduig and goods of the said ship, 

Ltlie same, without the presence of 
seper ; and did afterwards sell the 
eadinfir the same to have been only 
» Sugars, and did account ^?ith his 
r the same as such ; whereas, in 
caid ship was kulen with Cochineal 
, rich merchandizes of a great va- 



rivood, ihe first two Artidct, I 

ake, sindl be proved. 

Hw. As to the two last Articles, 

vdible witnesses that will prove 

tisiy the House. 

iiN>M r. When my charge is present- 

rriting, I do not doubt but you will 

Dvenient time to answer it. It con- 

reral parts; as matter of account, 

I may nare a copy of it, I shall make 

swtir as will satisty you, and, I am 

every member. 

■on. I suppose, the Articles ought 

, paiagrapn by paragraph, at the 

dropped.) 

iri« Wimniwgton, If yopr meaning 

shafl answer in writing, I conceive, 

•D is imiieached, the matter is to be 

smined nere. |^But time being given 

BUT to answer till Thursday, he went 

fmour desires ** he may have the 
vriting." This is an IniiM*acli- 
nnt to have its determination here, 
! Lords House. We arc the great 
iquirr, and are to receive any iufor- 
fhis unpcadiment being umfertaken 
iA, I would know, whether, if articles 
Ird, tliis House will admit, or allow, 
to give his answer here ? 
mker. When Answer is made to the 
len is the projK^r question, Whether 

S'ven in writint;. But your ordcT 
T. Neymour sliull make answer on 
and tliat he lia%c a copy of the 

November 25. 

MSHT. Vmi did appoint this time for 
Hi my Answer to the Cliar^e a<^nst 
tady to answer. 1 only wait your 
irlflbaD proceed; whether I shall 
MVHT m tvriting, or answer the Ar- 
Waveread. 
**^ were read. 

rf. You have appointed this day 
war's Ansiver. It has been the 
0e« when a member is accused, 
IP in Us place, and give Answer. 



Mr. Se^nHmr. If that be the mediod, and 
that be the way to come to your end, I an- 
swer. 

To the first Article : I do allow, that, by 
virtue of tliat act, I received, as treasurer of 
the navy, 498,35 1/. Is. H)d, and no more. That 
was the total for rigging and equipage of ships. 
What was more, was tor the ordnance, whidi 
was above 20,000/. but by vurtoe of that, I re- 
ceived no more than tha former sum. That 
sum knnd Danby paid, according to the inten- 
tioB of the act, and none of the money was di- 
verted to any other use ; as appears by the 
accounts. 8o that tlie balance of the total is 
9/. 55. and that is all in my hands. The other 
sum for that service was SO^OOO/. which Uie king 
assigned out of hia treasury. Several sums of 
money were lent to Mr. Kiogdon ; bat what 
were so lent were belbre the ad for disbanding 
the army. 4> to the lending 90.000/. &c. I 
never lent above 10 or 90,000/. and none of 
those sums were for building ships, but of my 
own proper money, and the money of my 
frienwi : And frequency the treasarer of the 
nav j^ does make use ofnis credit for the Idng'a 
service. And this is my answer to the first 
article. 

To the second Article, I humbly present this 
Answer: That it was in my power to dispose 
of money till bills were broufiHbt sigiicd, wnich 
they did not do as long as uie money was in 
my hands. Tlie 40,000/. I did issue and pay 
accordingly, which will appear by the mer- 
cliant8,who are now ready, at die door, to 
affirm it ; and they did never call ibr money, 
till it was out of my hands. The time of con- 
tract and dcUvery of the goods was so long, 
that all the money in my hands was gone : All 
was done by the navy-board, and beibre the 
merchants came with their bills, it was so bng, 
that all tlie money was paid out. What wiU 
make this manifest, will ne the merchants com- 
plaint, the last pariiament. I am so far from 
prejudicing tliem, that I did serve them what I 
could, by reflecting on the hardship of Uieir 
case ; and I humbly offer you their petition. 

Mr. HorOord, " You cannot receive this 
paper. If Seymour insists upon it, he must 
withdraw whilst you debate it. This is not the 
place to hear the merchants ; that must be in 
another place. That Seymour should produce 
this paper, and desire that the merchants should 
be heard, is a strange motion to come fi^om 
Seymour, who has managed so many impeach- 
ments. 

Mr. Sfvmour, Tims miich I know, that 
when evidence is produced, it has never been 
dcnic<l. 

To the third Article : I had the honour to be 
Speaker of tlie House b.^re I was treasurer of 
the navy ; and I was in the condition of a pri* 
vate gt^tleman ; but though it was not great, 
y rt it did support iny ouauty ; but it woiud not 
maintain the principal commoner of Eng« 
land. I had the favour from the king to re« 
ccive 3,000/. a year, as for secret service, te 
avoid laying the fees in the Excheqiier | 



13.0] STAT£ TRIALS, 32 Charles H. lei^O.-^ProaeiingMagaiuai 



Mhich mL«&ll ihc ftivoiir I eTcr received from 
len! Oniibv. 

To iIk- toi'rtli Article : Tlus Article is of mat* 
ters itono Al'kivn yeaiN Asr(>. aimI so unceriain a 
rfmnre'^ tb^t there remain not any footsteps. | 
For theorizes, I nevir roreivixl tlio money, nor I 
ev«Y w-.is an aeoountunt tor tlie prizes. I aci^^ no ■ 
ochenRi>«' than as the other eonunisidoueTV. Id 
the article vt is calKil '* a it^rtain ship/' with- j 
one name : When it haii :i more certain name, 
and iv« a more ccruiin cliars'e, 1 shall make a 
more iviT^in ar.'SMiT to it. Since the commit- j 
missioners ct" the prizes %verv» under a mistor- 
tuiic, she cc^M! I'lvn ui Br »x»k -house never 
itp^tke Of' «t : nr.d smiv that, there hx« bi'cn ! 
mn avt i«f oSii'. ti^i. Hut t iliM^biui any U-notit ' 
IrvMii a»ts el' jbli". ioi. This article is of' mat- 
ters d'.Mu* !"i?\»>'n \ ears since, and as there arv no ] 
i\^tsiti»ot It, Mhi:i persons will charge me 
wi^rv' pvir^culdrly. 1 shall ifiic a m.^rv pin^.-u- 
Ur ans'v* t r. 

Mr. M:-.: :^':. It' S^vmenr hi^ i!->a<' as irell 
as he hasstM^kt' ■•»h\h is jIw,:\s »^ .U' he mav 
<vme e« » ell. 1 liU'^ e ir.r.i he ma . » .ililraw . 

Mr. N: •■:.■.-. I k;;i»w wh;.: b«-«v»uu"s me in 
p^ni »*t'uur\. I Ajkr.oM Ici^ife the ;*.is:ic« of 
tht^ Hei;*^ :" ' 



ih.-.r 



-.. •.■<wi.' 



I • «■ '« 



•',: ".111 :»»,-, in 
igrai:t:*.»c r'.e i iv:^\ of iv.v l'h:\rs::\\ ar. *. c»>n^e- 
mem liiiH' :■,» ntaki luy a:i>w or ; aiul 1 h''i»<» to 
maLeiiiy J ;'■-.:: .V ylj,\-y i.» tlie H"»r.'«'. si r..': 
ioe*er\ iMtwri-.lir uvirb^T. l»i*n*v iu-.*:''T- 
fv.-.w :.»a".*wcrivs er.:rj.7.il. b-.ii 1 •: i..\ rv.is- 
d Hi'm •.!'.% r,- ■.•>->•, 'T Ji.".*rkMiead a ^^-'^i.-v ;r*m 
iS- i'*."^" •>■■:■ '1 • :' K"^--!. \*H* v..;. ^., a . 
e>*r." "4; : > ; >:.,^' i .'.^^ "•.!' :ta- I'-dr Vhi;^:» 
•j: I"-. V-. !.^. '.■.-. .:• : • ■'-. ..rr; v. i- : b\ ♦.'::. 
'»■.:'- -i" . :. •• I" ../. 1 \ -J., i • -» " *■ 

t "• ■ " -- * i • ." 



.\ 









t:i.> ~.i£..r? r.!-.\:- ::r 



u- 



. ■• v>! . • c:- V ".yt'a Ciir.^\ -. 



AzaI I cur* >*.vr\-^ ?'.*'^j..!s. •.:\\^-.t':> V c*;ii-.v 
Uninj, ic-i -'■': iiar«^% i»h;l I. T^iiC v* -*'-^* 



*.\ 







- -^ 

■i a fKiRiii'^iQ*;a «.k' c .:''^ •! ^l\ 

wtw ia>srenfctatil .3 ^l- >:• -..m:- i:. 
•Ml Mi aay ifei*r *>?ifu ^-lac-.L ..Hi: *.' -r -^ry 
Tlir fcsi «irp 1 c^rr ttMiJtf ::5 -r."* -«', -.. . * .vc ^ 
rfp«riSia»fOi. a::.i w 'i\ :•. . .-vm ..:^* 
■» 00 «cnrt : ±'^- %*^t2. ... »v -^ji^ 
UMV rf UK. I ha J » •: ■XT'A .. : -Jia . >«. i"^ ■>,*. I " .«• ; 
09 Boaiivr it^ ik: k*'i-'«. : : ^ * ^ ■ ^'.r , •. ; i v: o^j: 

ftrv *|il^:'sKj;uc-- . JUS -\-aa*': s 

9% ktOliir Bid. Ul*£ 'hKOtl>f. I ikiv w 
lUll IMIC WXlilrr, JUC *JX \7al^ 



altn|rether positive in that question. I 
pve vou one insumee more. The idt^ 
on tbe throne, and the last moment o 
session, the House expected that the m* 
hill should be broiurht down from the 1 
I: \\ as flenied, and severaH mc8saj|;es passe 
iwi vt the Hoi;5«« -.At Kst, it iras not bn 
dow:-i, but met me at tLe bar. The king 
aDjfr^- at it. I said, " 1 wouki be torn 
the eliair wiih uilil horsc-sc^ befcwe I woiil 
without the bdl." The House, At the 
end of a se&>ion, uere jealans of some 
thatuMi^ht be otftred, and the House 
thty \ten? pleased to lay their trust in r 
was ii> hihder it. But the matter of disc! 
inc the Backers Di-bt was brought in 
and in the L/^nis House, and if 1 could 
htH-n prevailed with, that bill had been ai 
Had 1 been a o^rmpt man. that bill 1 
ha^c pa>se>!. You hare h«^ard of it in 
C«ileman's Papers. A ^nileman brougl 
a pivfrni fiT'm the otv of Lubdon, and 
!h.\T ;:-e{i::crjac aii«i bis inessaj'e were rec 
he w.W ttll V'Hi : he is a man oi h<inoii 
hivo itkkc n no mdirv^.t way. In the latti 
of ib^^ p.in:j^if:;.i th^ttbe PKKwas di»eo 
in, I *-;?:-■*«. '.: wJi be :. i'liine-J th^t no 
» AS w i:.:ir.i: ::i ibe ih«iri'nrthe dL>cuvi 
it- 1* ««>-.;.'•■ iwii.l'US l-\ utuwe cfHU 
kr, » :. •. i ;:ai iS- iK-n^-'ir to l«e ci'ii, 
iTi a! :■: r.«>: :■ *-.-. i • t \-. . •.;>** ^ -..r place. 1 
plitt i .1 ib-r k\-i,t :\ jv-rs*'U!* not us 
ri::.,\ .; •: 1 '■■..'. \w^. iC-lx:- 1 B 
An-'. :" ;. . .v. ri..^i ,r. ilh^; «:.>».V^\ iii« 
■ :-. I ^.. . ■ «".: Cf^' t'r.-.dr,.'e c 

H . -• i ...... : .- '.. ..• .:r I.' bv liauic^i. 

:• 'O" ■ -' ■' . ■' - - ' !-• "■*> -:^ tiir Ti 

.-..» i\t' \ ■. ;.. .* - •. '-1: i:.;'.' mv 
■ - ■ . - . ' 1 ■- ■ ' T • 

^..T .!."»" •_*. ■ A. ... '. .' i ... >.irr 1 di 
vi..„E. . - . .•..::■.: _-..-»: :;.>i 1 

\ ■ . . ■ . . 



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'^v I * ■•- r'l..'. :\^. <k-: :^'. *wi i^-: 

• j«. ■- ■ .» ■■ •*.-.■:■■".. i_." .-.■ n^ ^< •.* =i A 

i,i.'j- -'Z l .-*•■■■'■ '<i- i !.;■ ; : .»-. >■ 
>.■ ■ . '■ 1. ■ •-•» i-* . ^ .« '* . • . ji.T : ■ 

• :»...•.■».•. .--i . 1.-* . !d,.-t;^ ; "ii-i .^i 



Hi] STATE TRIALS, 32 Charles II. iS^O.-^Edward &yma8r, esq. [14$ 



Teneratioii for. I^ those men ywXk abrnatl 
with what penetential wonLs they please. They 
ihst have broken the triple lea^e, shut up the 
exchequer, hecaiue I would not trust their 
tnaas^'*. >V hen the' parliament is dismisseti, 
they will do the same thina^ i^^ain. 'Iliat the 
Phat«stant religioD may be pre.'ierred, I am tor 
thrproiervstion of the'rrown. There remains 
■y charge: with yon. Do as you think fit, I 
w4| do a^ an honest man, and never depart 
ftm my resolutions of nn' sincerity in the 
nmecluit reliffion, and service to my country. 

Mr. ^fiirM Fleetwood, He answered not to 
4be Aitide, ** That he misemployed the public 
■MBfT.^ I do justify it, and will prove it by 
pod 'testimony, that the money <^*antofl ior 
aa actual war with France was not so disiK>!U!d 
U*, bal to a oomrary use. Pray read the 
mz|^ article b^* article, that 'we "may know 
JOJT opinion of it. 

Mr. Vernon. To the last Article "of Money 
tceetred for Secret Serrice," what secret ser- 
vice he did that pariiament, he that received 
the money knows better than I. Unless leap- 
np oat of die chair* wus " secret service," 
im that needs no proof. Though he denies 
idiag the kind's prizes under the notion of 
WMiiAga rg ^r Indigfo, and Cochhieal. As 
far A^H^ of Indemnity, 1 know not iiow that 
cu tAf^r hino, aince he is impeached ; it is not 
mier here to determine, but in the I^rds 
House. If %ve f lave not justice arjpiinst him in 
tbe Lords House, 1 know not where we can 
htte it any where else. In the Courts of 
WertDOuuter, where the juds^es stop all pro- 
Cfe d mga, I expect it net. The duke of \ urk 
uriB nSicted for a papist, and in other present- 
ments of papists, they stoppeil the courts of 
kw, heonse they were too big tor the law. 
Ilus man is in so much favour at court, and 
hai 10 ranch money to mnna;y^, that he can 
Bake all of hia side. See the effect of your 
•Mbhs to the king ; yon had put the Iting 
tpona moat grateful act to the city, and done 
({•od wnrice to tbe nation in the country, yet 
be, Jeffreys, is chief justice of Chester still. 
HUs address ^vas not gmnteil, nor your ad- 
dremes for pardon of such as should come in 
to dbcover die Plot; if ever men desened 
fjtrdon, they did, when the kl :g's life and na- 
tiDB were in danger, and an exception of ** per- 
jnry'* was pnt into one of the pardon^. What 
We you bad of effect from jrour addresses, by 
.DeaDs of such oonnsellors as St^ymour near the 
bog ? I move you to put the question, " T])Ht 
tMreii matter of impeachment in this charge.'' 

Mr. Harbord. I [iretend not tocliarm any man 
by what I shall say ; but the first sten yon are 
li mdce, » to read the charge, article by article. 

The Article was read " for the Money aiven 
fcrShips." 

Mr. Harhord. So great care the parliament 
took to provide money for ships, andponish- 
■art fhr diverting that money. Now, in short, 
vMier cu this article be proved ? It may be 

^ 8« 4 Cobb. PtoL Hi»t. p.890. 



said, here is nothing but an affinnativc and a 
negative, ami so perhaps men may not be ablo 
to give a judgment, to say what to do. From 
precedents in your ancL>stors time, and in the 
Lonisr Parliament, of Impeachments, the ques- 
tion is now, *» Whether Mr. St^ymnur is so far 
guilty of this chai^, as in your judgment to 
proceed to imi>eachiucnt.'' ^Though he has an- 
swered all the tour articles, and endeavouretl to 
clear himself from other aspci'sions. When he 
was in the Speaker's chair (:is you said very 
well in your specrh, " the chair had been 
so vitiatc^d,*') I have seen him cast his eye 
about, a!id he was tom*^* to that perfection, as 
lo a man to tell you how a » oic would pass, 
and spies and cnnssnries were sent out, to fetch 
men in : this I have seen an hun<la'd times. 
This ariiele two gentlemen undertake to prove, 
and no man can say^ but tliat if he be guilty 
of it, he has made a great breach of his tnist. 
The witness that can prove this article^ had his 
hand in putting out the money >Vlien a mem- 
ber cannot in^e good the ai-ticlc, he names 
witness4^. Tlic first article can be proved by 
a man that had his hand lor it, and Seymour 




he (Seyiiiour.) If gentlemen bid me name a 
witness, that an olfender may escape, they ara 
as guilty as the person accused. 

Sir William Junsi, I have attended the de- 
bate, and this is not the time to bring that iu 
(piestion. Seymour Ls a man of great elo- 
quence, and has showed you that he is an aide 
man. It* he be go(Ml, lie is able to do much 
good by it ; if othemise, much hurt. He has 
answered the articles, one by one, and it Ls not 
iimeh matter whether his' answer liad been 
" Not Guilty" only, and he could not make a 
better answer. 1 take it, that, us to the fpreskt 
sum given by act of parliament for building 
of sliijjs, liM cliaiwH is, »• Tiiat he diverted 
that to &Mi>tlier purpose, and indixnl to an ill 
pur|>ose, to keep up the army." His answer 
is, *^ Til at he received so much, and the rest 
was the onlnaiice, and was paid according to 
the act;" and he has referred you tohiiac- 
coiuit, ami tlicre remjiins 9/. &c. It may be, 
the money lent for kc:e|»ii;jf up the army vas 
other men's moni,y, upon ih(i credit of himself 
and his friends. tVith all ihimess 1 do repre- 
sent the c!?ecc of the cha*'j.ij'(r. and hi": answer. 
I do not do.iy but tli'it ibis is a good answer, 
but all in urTcct ainountstj no nioi-e than, *' Not 
guilty of the charge.'' I did observe, that he 
has iteceiv<-d no nu'.n':» exiiectation in his 
abilities. He introduced his speech to this ef- 
fect, '^ Tliat he was unfortunate to have a 
charge hg-ainst him, but it would be less so, be- 
cause he should be heard in parliament, and 
would call un Kastland merchant to testify for 
him, (&c." But that is a mistake. 1 am 
afraid this House cannot judge this matter. I 
could wish tliey had that power. It may be, 
it wouhl be more secure for tlie nation, that this 
House had a several judicature ; but I am 
7 



143] STATE TRIALS, 32 Charles II. l6$0.— Proceedings mgabui [i4l 



ftfraid this House has none. I rise not to a^f. 
grrftTate one point ot' the char^. If he be 
guilty, Wt hiin be condemned ; if not, ac- 
quitted. You (under favour) have nothings 
lo oonaider, but whether this article be a crime, 
if proved. Seymour did not take ui>on him to 
tell yoa this article wati no crime, thou(|^i prov- 
ed. No doubt, if proved, it is m crime against 
several acts of parliament, uppropriatinsr Hums 
of moB^, &c. that they should not be uiLsa|>- 
plied If he, as treasurer of the navy, luis 
mis-spent it, to another use, it is a crime ; the 
penalties and and forfeitures are fine, and lo«s 
of his place, if he be ffuilty of a new crime : 
The next article is of pfrcat coiunderation : 
There was an act of parliament for a war witli 
Prance, and that army had the ill luck to tro 
off with nay, and not fi^htinf;'. l*hat money 
was not nt to pay them, but money was bor- 
rowed to keep the army up. No man can 
think but that tiiis was a crime to continue the 
army a§^nst an act, though he lent the kin^ 
hia own money ; especiiuly considering the 
hazard the nation did run, by that array's \mn(r 
kept up, when there was no work ior theni, 
It was well done for Seymour to mention his 
good actions ; it mav a little mitiE^ate his pu- 
nishment in the Lords conrt ; but this ib not so 
proper, to tell you any other afr^rravations not in 
the article, ffthey l>e crimes, let them add them 
as articles ; let n<]fht be done, and proceed 
M'itli that trravity as in other places. If any 
member will say that this matter contained in 
the artide is an otfcnce, let him rise up and say 
HO. Two members have said, that they do un- 
dertake to prove it. 

Sir Tho. Ijee, That which is out of ques- 
tion is not the question ; but the question is, 
** Whether upon these articles, you will im- 
peach Mr. SejTnour?" 

Mr. Kint^do^. I should not rise up to speak, 
unless it were in my power to give the House 
some information ; and it is only because I am 
named by Mr. Seymour, to whom I lont money. 
This money he lent to me ; but whether it was 
misemployed, I know not. He has offered to 
produce tiis acconnts. Some part of this 
money he lent me not, for some part he bor- 
rowed of me. As to the other part, said to be 
lent for continuance of the army, I lent none 
for that purpose ; for those great sums wore 
lent long before the matter of disbanding the 
army entered into debate, or whether you 
sdiould continue them. Long before the act 
for disbanding the army, there ^vas a necessity 
that the army in Flanders should have 10,000/. 
to pre\'ent them l&om starving. The other 
money I took out of his house to disband the 
army Trith,which might else have cost the king- 
dom 80,000/. more. 

Sir Thomat Lee, I have been long acquainted 
and have had a friendship with Mr. Seymnur, 
but what I shall say shall be for your service 
which will be, to commit this matter at large, 
because Se3rmour is charged with having em- 
ployed the money to different uses,and Kingdon 
ftysit WB8 not •mployed to the uses in the article 



mentioned, but on the contrary. It is noli^ 
tliiuff for the Commons to make coinpbinttftthi 
Lonb of one of their own members. This «1 
be but a mean reoompenoe of yonr credit, li 
lose your proof, when witnesses shall go bad 
in the l^rds House, and the Commons ■■ 
not to fail in their prosecution. For that reasH 
the Commons have given notice to offendeni ■ 
to the duke of Buckingham, ^. becanse thcgf 
would be so well inf(»riued, that they may new 
complain, but the person may be round guikft 
It is a matter of s'- great weiglit, an impeafl( 
meut, that the Oimmnns ought not lightly ti 
accuse. Impearhmrnt is your weapon, h4 
you must not hhuit it. If 'you are roistakn 
m one part of it, you may be* in another ; mk 
it will be a fatal thing to go to the Locds wiA 
a mistake. You have heanl Seymour's dl» 
fence and Kingdon's e%'id(^nce. 

Mr. Horbord. Vice-Aduural Penn and eon* 
missioner Pett were accused at Brooke-Houf 
before the commissioners of accounts*. Fleif 
was accused, that he had embezzled prize* 
goods. He M as summoued hither, and aa* 
swered his charge ; and then tlie question 
" Whether, upon that complaint, there 
ground for impeachnuMit l*" And it 



solved in the afiinnnfivc. You have;^B 

I caaxi 



I 



grounds now again.st Seymour, 
tako for myself, but not for another man, tt 
make good What I have asserted. Mrs. Ccflicr 
disposed of an hundred pounds to get theeri- 
deiire against the lords ia the TowrT taken o£ 
If evidcucr against Si-^yniour be nameil, tb^ 
may be taken off. Wv see money has nuned 
us, but honker I shall propose a {vay to md» 
thekingilom happy. 

Mr. Bo-ytk. I riHC up to undeceive gfentle* 
men, 1 hear it said nhmad, *' that friendship 
Sfuidcs me in this mattrr, and not iimson anl 
honour." — V\'lK».socver savs so, is guilty sf 
irejudice. If S»jnioin* W u'uilty, coniwma 
lini ; if iimoceot, aequithim. If wo be b^fHed 
in this in)|U'achme!it in tho liords House, it wiD 
be a pi-ejudice to all you sIkiII do ; therefore I 
woidd coiuuiitthe Ardolos to be well considered. 
Ill tho last parliament these Articles were let 
slip, and I doubt it will l)e s;aiil, thvrc U somer 
thmg of reveTi<^e in it, men: tlian upon pubUe 
account. y\nd if That api>ear, it will be adaqip 
to all you do. Therefore ooinniit tho Articlea. 

Mr. Mo'ttiiffu. In the last parliaruont, did 
come a credible substantial gentUMuan with an 
impeuohinent agaiust Seymour ; but he had 
usal him ill, and the parllainent was di.s<iolved. 
Sir Chri<t. Musfiriitr. An luipeachmenthaf 
been brought in, andyour iueml)er has answered 
it. What is beforr* you i ;, the urrouud of Impeacbr 
ment iu this ArtirT\'. Tht* men ihers that broughC 
in th-^ aiticles may have gruniid to believe thenit 
yet they may bt^ deceived, anti so you exposa 
the honour of tiie House. In the Impeach- 
ment of lord ^lordaunt, several witnoflM wot 
examined, and several days were heara ; uid 
next, you have done so in the case of Sir Wir 

* See vol. 6, pp. 8(ia, 870 of tiiis CottactioD. 



4^] STATE TRIALS, 32 Chables II. l680.~^Edward Sii/mour, esq. [l4(r 

:. Clarendon's case. Th»' money niigflit Ik? h.-nl 
; anil possibly the in liiviilua I money tor ships that 
wen: U* \iv built ; but euu any nfan have satis- 
I'uction, uuk'j>s a coiiHiihtcw.* enquire ? And so 
\ }uur iiouour will be saved. Be ii])Oii surt 
i i^nnd, and that the e\ idence hiay becleur,cuni. 



F^nn. Sereral persons did enquire into 
And it was so difiicult to make 
out, that the Hoiuse did, by act, ^c. com- 
persons to enquire into them. Tliey 
witnesses upon oath at Brooke- House, 
they made a fmrticolar report of tlie e\ i- 
'Conld any thin^ be ck^rer ? But here 
icit sud, ** gentlemen will make this charge 
cwd ;" but vet no proof is made of them. 
B^^hkhit produoes his account, and will stand 
ind fill by it. Kingilon tells yon, *' Tliat that 
af the money borrowed was a mistake, and tliat 
Boney was not so emptoyed as in the charge." 
1 VMire, therefore, that it be committefl. 

Mr. l^iw, I sat in great awe in the Long Par- 
fimen; but Seymour, I rcineniber, accused 
M Cfairendon m the l^ong Parliament*. It 
vas then said, " To char^ Uiat great lord, and 

Kre notliiug^y would be a diMhonour to the 
Me." A great gentleman then of tlic House 
[t may be, I can produce the very Speeches I 
then took, in short-haml, both those against 
Ub and for him ; tliose who were for Ckiix*ndon 
were for discovering vvitnesses, that they might 
betalKfi off,) lord Vauuhan,. upon his lionour, 
did undntaketo prove the article *^ of betraying 
the king's secret counsels to his enemiesf;" and 
thitwis all that was expected, that a gentle- 
■an ibonkl rise up and say, *^ I undertako to 
prarethat articki." 
Colonel Birch, Love tells von, ** he sat 



I Miit it. 




great awe in the Long Parliament ;'' and 
I ankr in^eat fear ; for that I thought never to 
see the Gissolution of tliat parliament. I re- 
nember that bii*<iness of tlie Impeachment of 
kMd Clarendon. In short, I did not believe one 
wori vf that which Clarendon was accusetl of. 
I preved no witnesses to be e\amin(f<l, hut itir- 
tlier ta "^^'m^ tlie matter. We know which 
wind blew Clarrndon over sea, and what wind 
Uows now. 8e)'nioiir has suid, " he is a lover 
ofbii kfflg and coimtry, Vc." but 1 cannot but 
obierve the hand of Ginl hi this charge against 
Cnuendw. y\ hen Sevmoiir was in the chair, 
nsman wa^ iiiore sliarp upon me, and I some- 
limes as smartly replied. But as to the last 
" LiOAnt, I t!tijik he did lielieve the plot in the 
Pta'iiam* :it, and therefore I did recom- 
him to the «.>hair. If he be guilty of this 
dilige, no mar. sliall prosecute him with more 
warmth than I will do. When you resolvcnl 
ftat money should be gi\en up<r) a jKill-bill, 
fur the French war (which I was convinced of) 
ID XOOfiOOL for some thing's was to Iw pro\ided 
IB a few days; I said to sir U. HowanI, ** You 
hiTe 50,000/. remaining, &:c. in your hands ;" 
k replied, *' I woidd be taxing, Scv." I told 
yoiionnerly of " a cudgel, that would break 
Ikt glittering bottle, the^ Fn.'neh king;" but 
VBD must have a sharp Kword to d(» it now. Sir 
Robert Howonl said, " He hud orders for is- 
niB^ out that money, ^cc." I never hcanl but 
tbatif a memlior said, he v.'ps mistaken in on 
Aitide, it was no fartlier insisted on; as in 

•Hp^ vol. 6, p. 323 of this CoUection. 
f Ibkl. p. 340. 
vol. vjn. 



Mr. Papillon. There were tivo acts for dis- 
banding tlie anny, but the parliameoit had a 
I trick put upon tliem. Iliere was two luindi-ed 
thousand pound given ford'sbauding the anny, 
and it was employed to keep it up. I am 
afraid, this money lent by .Scytiiour uus that 
which kept it up. 'lie should not have panod 
with the money till it was eUeeted. T do not lay 
so much weight upon \s\y,\.i is suid by Mr. 
Kingdon, as to cany this eliarge to a' coni- 
mitte<\ 

Mr. KitifrJon. I sjK'ok to orders. 1 shoidd 
! not have troubled \ou,l>ut that 1 find myself 
I rcllected on by Papillon. All tbaf^ money W(.'nt to 
i disband the ra'iny, and what was lent to i^lr. 
Seymoiu: ^as before the dislKindiug the army. 
I NirlV. WinninKlon. Hook upon this Article, 
! and i fnid it mentions not u!ie u<irdof of King- 
; don, but " that SeyuMnir directetl 80,000/. 
; Vc." Hut lliat Kingfffui'sniuncy was not (his 
money, i.s i:i;.M'e than any !ii:>n iuiisny. King- 
don iscouiphiine<l of for inispaying the money. 
l*roiimui ardety Sec. I should lie glad if Sey- 
mour \vtts not impeachetl ; but there is a jwr- 
ticcp^ ciiwinisy 6cc. I hiiirm, that, u hen th^ 
eoniniitteesat lor eniirii'v at\er the pensioners 
of the long parliament, u gentleman of (pia- 
lity gave evidence, it worked so hard. And that 
was the rcaMm the charge cumenotiniliat par- 
liumi. at against Seymoiir, that parliament Inung 
s<ion (iiseliai'ged. I woidd know, v^hen a muu 
is iinpoucht'd, if, hny man shall stand up 
an<l .say, '* he dooj n<»t b'.lieve the ai ti- 
des,'" wiiether this shall desinix any im- 
peach meni 1' but gc^iitlenien .say si.:ll, it*^ may 
Im.' eomniittefl, which is a gentle rejection of 
the thing. If this getitleinan be guilty, it is 
more glorious for him to be tried in the great- 
est place of tlie kingdom, and to justify him- 
self, than to stifle it here by commitinent ; and 
then the ne.Yt thing will l)e, v itnesses will run 
away, beeausi; this great man is too great for 
the 1 'ommons of England . If you take away tlie 
means \ou take away the end. The court 
ever caks for prosecutors, but ne> er for wit- 
ness™, till issue ho joined. Seymour has com- 
mittoil a givat crime, and he will commit a 
gi'eater to keep himself from justice. I was 
counsel for lord .Morduunt *^^ in his imi)eacli- 
rnent ; and I remember the House would not 
let me produce one witness for him, and he \sn3 
iiniteadird. W\i know what crmstitiition the 
long parliament was of, and what pn^ceilcnts 
they made ; but at the lattiT end ol it, when 
itl)egantobe filled with brave men, Articles 
were presenteil siguinst lord Da id)} , and there 
was nothing but jiroseculion, no reeomnnt- 
ment. If the articles be not provinl upon trial, 

* Sec vol. C, p. 785, of this Collection. 



147] STATE TRIALS, 32 Charles II. 1660.— 

it is no reflection upon the Honw of Commons 
but on particular men who undertook them ; 
but if the centlemen undertake to prove the 
articles, and you do not impeach tiiereupon, 
this will be a great discouragement to call great 
men to account. Kingilon borders upon the 
same offence with Mr. Seymour, if it oe one, 
and so what he says is of no weight. 

Cok>nel Birch, I will begin where he ended. 
He tells me, " I will look to my interest." I 
say, that Winnington pleaded for lord Mor- 
daiint, and then you know where his interest 
was. So he grounded that old maxim of mine. 
I think myself not well dealt witlial, to tell me 
of my nibbling about money. I am auditor 
of the excise, and can any man charge me 
witfi ever taking six-pence bribe ? L^ely I 
was one appointed to disband the army, and I 
meddled with no money but what I gave ac« 
<30unt of ; because I am told of '* nibUing." I 
did not say " that it wta impossible to proTe 
these Articles,*' but no man can but he that 
keens the cash. If, afler all this, this indivi- 
dual money was giren for this use. Sec, it is an 
Article to impeach upon ; if not you cannot. 

The Debate was adjourned to toe next day. 

Nacetnber 26. 

Sir J(^n Knight, I conceive tliat the House 
intende«l to proceed to such Articles as may 
be suitoMe to vour honour, and that the ho- 
nour of the krogvlom may not be laid level, and 
your member acquitted. As for the first Ar- 
ticle, *< thai Mr. Seymour had directed the 
money you ^ve, for another use, \c." it is 
n>rv nt that he lie called to an account for it. 
If I stand up and say, <* I will make fvtM>d an 
article,** coasider how it will be made good. 
Says Seymour, " Not one penny has been di- 
verted, but employed acconling to tlie act of 
parliament," and proffers to produce his ac- 
counts. In the one way or the other, consider 
well what you do, lest, if he be unpeached, the 
Lords find him not ifiiilty. Therefore it is not 
enou^ that a gentleman rise and sny, he wiD 
make it good, but be sure of proof for your ho- 
nour. 

Mr. Harhord, If you proceed by precedents, 
lam sure you have many; but the question of 
commitment of the arlick» was not first put. 
If you put the question, *^ Whether there be 
ground of Impeachment upon theto Articles,** 
Siose gentlemen left off- 
Sir Nicholat Car€u\ The question of com- 
mitment of the Articles arises from aif^ments 
of the honour of the House. But no man had 
been impeached in tlie long parliament, if that 
had been an anpunent. If you put so great a 
tlJS(M)iiragemeiit upon momliers that bring in 
im|>eachment5 against great men, \>hat use are 
you of, unless to frive money ? We know the 
condition of the nation ; if wc go this way 
to w«frk, we give up all. You must mistmst 
the lionour and wisdom of your members, that 
they brought in this chaige maliciously, if you 
,Kfer it to a committee, and rest not upon their 
undertakiDg to make it good. Were this charge 



only a breach of the letter of the law, I y 
not open my mouth, for every one ollnda 
what became of your money, when the 
should have been built within the time, u 
army raised for an actual war with Frano 
you were t(M from the bar, ^'Thataraitf 
would rather be guilty of forty nmrders, 
that it should not be a war ?*' And, yoa 
a letter was produced, *' That, abmit ihm 
lord Danby was treati^ to make the kin 
butary to the king of France, and, on tha 
tence, to keep cm the parliament ;" ■ 
army was raised ; for aught I know, t» 
on tne Plot. There is evidence enough 
if you do not impeach Seymour ^ive u|b 

Mr. Leveton Oower, I diffor in the i 
but not in the end ; when a member did 
up and say, *< He vnll undertake to pr» 
charge,** and yesterday another stoi 
(Kingdon) and told you, '* He believed tl 
trary,*' and another replied, '* Kingdo 
as criminal as Sevmonr.*' Keeping i 
army was a mat ftiuh, after the act fb 
banding it ; but in the act for diibaiidiiigj 
paymg it off, there is a danae of indn 
Next It is said. '< If the Artidea be reftne 
committee to examine the proofo, will 
maybe menaced and taken off.*^ fint 
it miglu have been in the commktae fo 
Plot ; Bcdlow, Gates, Dugdale, te. i 
have been taken off. One en' the evida 
said to be a man worth 10,000/. I 
der, such a man should be bribed or ma 
Be sure of the proof, else the honoor i 
House is exposed. Is not all the evidfi 
the bar against the Lords in the Tower k 
and printed? shall we be afraid to ahm 
evidence a«unst a I^rotestant, a man of fi 
and not afraid of evidence against pepii 
am for committing it. 

Lord Cavendish. You are moved, " Th 
clmrgemay bereferred to a committee.** 1 
for no other reason but that the matter < 
prizes may be examined. Persons at a 
mhtemay say things, and retract them a 
but those against the five Lords in the * 
were past retracting ; they were all upon 
If that be so, committing the Artidea 
way to have them fall to nothing. W 
doubt, the Articles are criminal, aiM a bre 
two acts of parliament. A member has 
** He knows, that part of that monev wi 
employed for building ships, and tnat 3 
kept up the army.'* On the other aide, a 
ber siK>kp positively to one iVrticle. If tl 
nour of the House be concenied, it mayl 
dicated ; but I cannot imagine that the ft 
of two members that asserted the Artiek 
be exposed. I cannot suppose that. Tfa 
tides are criminal, and undertaken to be pi 
And there Ls ground, to me sufficient 
in the articles there is matter to impeioh 
mour. 

Mr. Dultois. There must go a great 1 
blows to fdl a great oak. Here are higfa e 
chargetl upon BIr. Seymour, and oflmd 
proved, llie issue is» Whether apon ttl 



mi 



149] STATETRIALS, KCbaklBsII. l6fiO.-^£dii>ard Sej/atimr, eiq. HSO 

|M«aEidit BiUavenf If theUst 

jiMlUNlainekUMgn', I wouU not 

ihmk kacMC &r S\d. Tbe mouay for 
tmi^ikiifi, ftOBtA with m nuuy cImumi 
taAiM^lM.miiU MtliBTe been diverted. 
IhniiUmi^intbeflrat kO, Iwi not in 
A> Ik. He at& ot' Kiii|^'a acgitive 
■riiMaiklbefi, wOnotbeput in competi^oD 
m/kwAman*. If Seymonr be inclt- 
■Hlli lifoj, be ii ready M bring in ubi- 
kHjMOMtf. I Mn for impcftduiv hini 

blflfaaAiiiM. In thim cue, yon «re 
■MMMnMcaton, and therefore I hope 
jm^wAfmmJK of it. If you proMCuie 
viq^i^kmlkTWyiU, and therefore ■ 
■■■MlMniaifleaBjt of bin own pMidon 
kdipHHOiM; RAouMhe louo ill end, 
■lAndMHte a monl anurucool'the 
■■hefAethngW^ IdettotMethatindiutry 
■rijAwkORtbechugebewellKroiinded. 
flMM«hBanbcr(Kw£doa)tpedu actu— 
PW'' fif**! loo mcmban apeak their 
tkm^ isitmn. If thia biwiiiesi come 
Umti tJMtk, & wiU be abMlved b this 
Mabn bnf pMitive proof from one, and 
«*rbi«H&Mtwo. 

_fc. ! »»*. FiUn and truth are raMly 
AfaMS Mwha fiUty i» in a fine dreas, it 
■■■>"■•- ,I"ual 6nrt full of fear, ieat 
' ' It making good 



4«iiilrfElto 



la^MAiBauK, tkequalitv of the conipi- 
ft ** fc g aninher, and utal the Houae 
*'nni^j TiMNewithotttdoort 
Idact, who arefbr tnpcach- 
(, your pnipB' queatirui ii, 
-""T in the Arades be a 
Seymour, Hcc. ?" 
but in the nature 
jury. To what 
W BtnaiM giro the oommitlee 
^■■V if M eridence ? Let it be known 
^MlWpanlumju befcre the Lowh. hi* 
of your memben, to refo 
antrnfttM Ut befrOTed,but 
igainMlbe utethod of [wr- 
it carry it t» anodier |ibce, 
^ — .-- diaoovar the eridnice, and 
*'"i fi" iiruMcr b not to know the evi- 
■M- Bui hi itAr it to a committee to hear 
•gkinat all law and method. 
t. II' 1 wae of opinion that the 
■' ItouK waa cnncemed in it, I 
ily lie a* ewer aa thoae ffcntlemen 
iiiU thii laaige abould vo to the 
« u paM a oonunittee here. It 
~ tf miafbrtUM to the Houae, if, 
I of partiality, the 
u : Iherefhre 1 iiball 
■iAai^baifaK yM put it to lo great a 
L ilk JMurtct t» the Houae, and your 
««ha hM bea a atahna aaaertor of 
pi rf'dM CaHUMOB m the matter of the 
• kltaf mfon than to judge original 



caiuea. Your right in canyin^^up the looneyr 
bill he ligwDu^y avuened : it is a JuHtiee you 
owe him, not to expose him to that tribunal, 
wttlwut ev^eooe first beard. The evidmoe 
Kill all be exposed to your cenuiie ; there&i* 
examine the grounds of the charge. I riiall 
not speak to precedents of impeachinenia ; but 
there i> a considerable diftereitce betwixt im> 
Teason, and ^liBdetneonD<^ It 
becaiue iii* trraaon is ibund by 
the Lords, that therefore no misdemeanor. 
Piecedenta are express in the case, as that of 
ur William Icon's impeachment ; ami you 
will hardly find one preo^ent of misdenKtinor, 
"^ ' ■ one in a contrary way, but has been 
at acominittee. Wiere the matter 
chained and the proof was presoited t« the 
House at the same time, as in the case of bml 
Dauby's letter to Mr. Montagu, there was no 
need of ivitneases. And another reason is, 
where a gmtleman undortakes to make the 
charge gwd upon bis own knawledge ; that ii 
much diflbrent trom the credit of olhen ; that 
iu not girinff credit to your member, but to 
peiaons not known. I will iiM reflect on the 
creditoflbe proof undertaken by yourmem- 
beiB ; but I niubt say, you Iteard, on the 
other side, tlie tetitimony of a member (King- 
don,) if not all the conMecaUe circumstanoea, 
of hu own knowledge. I am sorry 1u hear it 
olgected against his Icslimony, " that be is 
purtiitpt criminit ;" if ao, 1 fear you wiU want 
mort, if not all, your testimony M{aiDSt the five 
bmls in the Toner ; which is so far from inva- 
lidating tlieir testimony, that it confirms it. 
Not ti) accuse himself to excuse snotlier. In 
the iiupeaclunent of lord Strafford, when sir 
William Pennyman was brougfat by my lord 10 
slww that his words had been otherwise than 
they were token lo be in the impeachment, 
viz. " That the king's little finger should be^ 
bearit^r than the luins of the law, *tc." one of 
of llie impeathmenl told sir Wil- 



themanaireniol llie impeacht . 
liam, " He did ill diacliarge liis duty \> 
Commons (being a memDer) to auHer iob 
House to run upon such a mistake." Hss not 
Sf^mour done your servicv worthily, and 1 
hope you will as worthily eoiiaider it, in your 
manner of proceeding with him- Tliat matter 
alledged gainst Seymour, " his dextenty 
when he cast his eye about b the long pHis- 
ment to tell the House," is not in any one 
article. You may see, by bis accounts, the 
money received and the money luiid ; and the 
navy-lioard must U' his vuuchcih, and lliuee he 
willproduce. If Seymour must answer for 
the faults of all men, there is (ffound for im- 
peachment. Therefure, upuu the whole ex- 
amination of this case, before it go to the 
Lords, no Direction can bn against mi|iuiil- 
ment. I do conceive that the act of jiarlia- 
ment fur building the shius, Sec. does ini|io»er 
tboae aceouiits to b« taken by the Huuse of 
Commons, iii an expre«s clause. Ireiucnibcr, 
ill a disuute betwixt the LiinU aiul Cuminons 
about tne arcnunting, dec. the I»nl9 are ex- 
idudcd, anil you ought tvgulariy to recave 



151] STATE TRIALS, 32 Charles II. l6SO.--Procetiingi ag&mtt [ I5f 

if it had sat, (as some took care H ahmild Mt, 
hy (lisaolrin^ it) by the person's eridenoe wla 
wus employed m the things th enud fi 
Tliey tell their story with cohereiioe» and pit 
reasons why they' may be trusted. Hoaerf 
this nione^'* xsna empjoj'ed for thearmyiil 
koc'P it up/ But others say. by circumiluidHi; 
\s\\c believe — You are told by JenkiBi tf 
** facto proprio, Vr." I think, KmgdoB ■ 
under sii^pi'.Mon of the same thing, aiM itaa 
natural suspicion (»f this gentleman to hei^ 
ciisetl for TiMiiey. ^o. And should not I tikkk 
xhat if m\ neij;iiboar's house were od fire,Ai| 
my o\\z\ ^vas in dani^cr ? And that is K^f 
don's case. It is natural tor men to be i 
rates fur fault*, that they may be 
tor. 1 think, there is ground lor im| 
tho fac: beinc criminal, and will be 
Tht> ihiii^ it^Hf makes the tact 
you ha^e no suspicion of the 
dertaken, because Kingdon speaks in hudim 
case, it has been well ohfccted, '^Tkifttk 
freat {len^n that has great power can 
N? punished, if e%iilence be brought totfae* 
minee;** therefore I desire evidenee 
not b->kn«>un. fh:>! art, force, or 
t*omipt nr i.'in'V fnim ginne their 
The com nv.rt. -oVf socivcy. 5ie last 
Witt onl\ iMK»Hi sn ; all they did 
publicly . I ^peak it of nn* own 
and auii>n:r«T kjK>W:n:T men ; coDSiaiitly, 
oisfht. 1 r.! Ilanby had inteili:rence of 
was i^'»ni . Finoh teils \ *mi, ** That hy 
rity irin\ i1v;t>s uor? hn^ki^ht under ibei 
ttr '^t thi* r.n.i-lc n" the m"!iey, ^c." And he 
toi^k i<oas:-.«!i to ir..2;jiiify S.\\ iu«Hir, Sec. If ths 
witatss affunsi the k^ris. b^m^ pu^tueps crasi- 
Hif. had ::- «ne a-.«ni! tn »-xcuw what the hrii 
hatld^yi.;. h «\h;M be no < «Mupetent cr kiEB C B ; 
but if Kii';:>v ".T iMil 3*t-:>e St'^mourhe ist 
iVknr^ittent e^U.-HV. To corooiit thischnib 
i< :^ li-a :t »■ iV.t' j,m' i^f the House ; TbuiMi 
;HLttl:c v-.:->L''^. *- FiKit tLwre is matter of !■- 
'>"achny : \ .• '}-^<t: iriic.ts. 

>!7 H. V. I •• i.« prwien: at the Impcack- 
n-.vT.i .*?' .-o: t* i--!-.>»r. Yesterday. I heaidt 
r.itu V; ss^i\. '- T.. iTi-: that uupestchment, ti 
r»*r% jr«.,:r- ji !TwvS r »i.d nse and saT, *• I 
w.!i XAx.* iiiji: i-Tv.'-.** 'j»^ .! :" and for that iMh 
Si*", I ivA '.V «* ic*-->i tius way of pn^ 



that acTDUht in the House, nnd to let a com- ' 
initttv examine it. If thb* be so, rectMvc the 
first motion of iMumiiittini; the Articles, and so 
you niiiv nx-eive the nrc<»unts in tlu' House. 

■Vlr. HurintnL Tlii'n' is a n»ricctinn u|>onme, : 
of •• dcxtiTity, Sec." ft is a tinrible expression, ; 
to fri;rht a p:t'nilt>ui:iu fn»m his public duty. 1 
will nrv(*r decline niv c*ountrv*ssor\ict\ nor do 
I C4«vct S\vmo!ir'spln*'c, no/cnvy him ; there- 
forcl lio|M' vou Mill net sufTora'uian tJ» h*» re- 
tlwicil on, til at a thin«r i< dt»nr w ith •* ilexte- 
rit\ ," «IuMi it is dene with sincirity. You are j 
told by S«'vuM»ur. '* Th:st \* liat lie has d»»nr j 
was luit without the .ippntbmion of the Com- i 
mi<sionersi»fthe n?.vy.** There m as a ir^'at 
stni««rle hi*tu i \t h< lu * and the ( 'enuuissioners. 
\c, 'nien>e.eh;iiits. iimlinu S«\\iuour's credit 
anil |M\vir ttv"» l»i;:. fetl ujwn theUminiissioners 
ot ihiMKivy. Sty meur h;u! iit<:t ructions not to 
p«y any nioiuy wiih.kut warrant fmni the 
c«»nMU!s<iert •■s 'of ilie vzvy. Tlie inerehauts 
said. •• That the i-Mnniis^ioiMTS had told thctn 
they \l^^\ onUnsl th. r uionei", but S^'yunnn- 
w:.< ii,>r r,^,|v |o pny jr." But (hereaso'n why 
S.*\nunir voull \wt oS^y the cotumis»ionefs 
onler, w as thai he th sms«>t them, ami came 
!".»! to them in some n^MitliN I have the 
|«|Mrrs t»i pntvo ,V\ ntonr's Apiwer. ami tlw 
(\Hnmi<sioiii«TS Ueply lo it. (Th»»n ho spoke 
ef \\\< n fiisiiisT lo sTon a c«^nveyancp to lortl 
l\v.ili^k of fluids from ilie kiiic> A-itowhat 
KuixK <aid of •• dcxter.rv, \o." I never voted, 
ui anv tvuueil. •• Tbiu th.« d^di^e %>f York 
sl»»nilJ stay ni rn^Usul." when he was 
tUvnuxl ai» t*ne«ny xo \\w naiiep. 

>lr. F:i-}.. W iu'. Ma'-Upr'' rr-.lunl. 1 diil roi 
kiHiw Tii^ maner b^twiu S'wvour .vvi th»^ 
r.*\^ -l^^V.. I d.* vi\ . the n.;\) ->KLnl !">!>Ur> 
*i*«»*hers to Sexmo'.ir's aiViMV-.T^i", ar..! the K\- 
i'h>;ikT. it' 111;% i:r..l r.r..». u;! ?-...{ dci.v tht 
■^ivr. .\s I'l.v- Il^riXYirs i»*ii-:r even wiili uk 
ia th«* Asivrs^^n, •• That I w?.-; irv »'f ihi>«fc' iha: 
ivta;-wjl the I'.uke in Erclaiui.' I cun Tusrif) 
it'vsvtft*' <\tTy rHMv'v r. -ivi siie n->iX i.4r:.il. 
I w:ts ixs r' r :r>^ " : t'lK :v !l:> h js: U- »., «.i=:o- 
tily th«-i-.!<lits ti* i!*.' iK> -v. 1 .». « ;h--./K v 
was :taxv!KI-^ :r,f i».:ko >:i *;.;.? >• aS«*nt, j:^i 
had s^vllr.:^ f. r it, li! iIk* ei-.-^.^^n ■'?" the pat- 
lianieitT. • : -. I wv-s sa:-.*:>*.* i »:--. .t k.'^n 
that " e. \:rr'.-\ ' wi< ^ ,- .. , . ^^^t .m; w: :.ru 
to e\^v-s^' Hirb».«^? ♦'■^»!n • .a: ^ •'.•■. 

kQo%i : v'f wti^ »»:'.:^T i»a\ 
B.»*r :n :•!'* :tM[:*"f. *^.:rt» I .-"^si :<r he'» ^ito* 
•vwttt! \k\'.. ?'s's>* > ^ :••/ I ■ " ■> ji»- ^ V * '^ rs b i * e .vx''* 
I iw««TsaH b\ s Vrv>!**.s "hj? *»e .\:«vv »w*«*»w. 

^w tt\:.;VrsK st.v«cr •■■•^■jv'-. l^ '"* i^-. \t? w. 
**«**i>f nx's ?■' > ■> • ■- t."'.' i'-.fv ■,""*.x^".t ; "'v 
^^Jiy *:i ;3c -..".^ ■•.■.-. !•■ :U*- i^ ■;: V 

y?U.fiA: J.MI S.:K*f\: \ - v:< jfliX ■vk-»j;k-;vc: 



■•.IV V"^*!- 



t"av. wn tne arrv-V h-' ur.j^^rcvt io> pnwe; he 
ow .e*'. ue wx* AS.Sjvii by di« ^* Hfeocp.** It wm 
* Ir^irx: vm<»\ itw '.vx^wivjc^ ia«T.aiMi I tkiflfcil 
wil Sf 'i*' PAW . It he wvw :>t £Tvatesi cneny 1 
'. d -. I i*u' Wv«r.c : dnti ii:kretV.>nf I am lorcHi- 

M- i.-rv. I «>£' <cv.»iE .«r>'T 10 die qmitiw . 

If" I » r^ "••" * •<«.>'•: z -Jnf -r-is<^ and v^uirr rf 

I, I 's'vvA' -*c "v j^i^nss r^Hrtmaatat. I Inn 

•Y'H^N*-' "^'^ :• <''-*-'r\ . STE*-^ ittsa aesht« airtif 

.>rjv "« i " ■-■*' * f • »* i> '. S«: «.•- . ■ ■ Now ^-oti hsn 
'^ i.'«» : •*■ %. * I.- ♦>« -\' Ki. T»v lit* h««tv>ur of the 
U ■. ^ y« li^e r • *-h«^ wSifTh xn-1 whea ths 

»•«■•■••«%. i»i «^ 'T'H^'v '?^i. isti ■>«■ wf 



iT a. 



.svif. - TWt is 



133] STATETRIALS, 35 Charles II. iGSO.-^ Edward Seymour, esq. [154 



ihr way to inralidati: all your tettimony, by 
poUfekhuig the fiTtnessei, who hy corru^ion or 
mmop nay be taken off." 

yUr. Trtmckard. I clesireyouwillkeepf^icrt- 
lv lo the question. In the caae of lord Claren- 
M, the House had not no great inducement to 
inpearfa ai now, because members did not un- 
make the proof* of the charge tlien ; tlicy 
kid oidy inducements to believe it. Money 
■Mint byHcymnur, and, consistent with truth, 
■rt knt to Kioffilon. In an imneachmcut of 
onglit to be more tender, than in a 
barely of mi^Mlcmeanors. When gen- 
ido andeituke the proofis fnf the charge, 
■ iiaAiparafvement to the members to refer it 
*• A cammittee to examine evidence. You 
■Maot put discmirBgcment upon your mem- 
kn, lea yoa lay out measures for the future. 
Hkmtbe duke 'of Lauderdale was charged, 
iwi ifter the parliament was prorosfued, you 
fcwHi one of tlie witnesses Iwught ofi', and*thc 
sent to the Tower. If the Ijonis find not 
;^, the diminution is of their honour, 
and It is no more than a petty jur}' 
Ml HadiBi^ the person guilty, when the'graiid 
/■y has limnd the bill. I^^ay put the qnestion, 
** Thrt there is a matter in the articles to im- 
poKh Seymour." 

1% Tho. Lee. I know not what the Jjtmh will 

«T capctT u ing the Ship and the money in the 

divide ; hat when matters are reiluced to par- 

I, yon pre obligetl to consider the act of 

nly, whether the crime be panloned by 

' * You are bound to take notice of that 

it is plaiidy expressed, ** Hiat no 

ihall be impleaded for what ho has done, 

to tho army, 5cc. by that act.** 

ffe Wi/liirm Jorifs. In |K>int of law, every 

^^hiwng the goods purloined and cm- 

ii an offence, and the art, &c. does 

the goods, the indigo, ice. of which 

was made. Take it oi*.e way or 

r, the question is at an end. 

Sv TkoHun Lre. 1 desire only to know, whc- 

dtor a particular exception does not explain the 

(fir /v. Winnin^ttm, Look into that act of 
WiBB which passed some time belbrc the dis- 
■miB|f-act, and \ou will find abundance of 
in it fur the benefit of great men. I 
be very loth to put an article u|Hm Mlev- 
r, that is already pardoned. Seymour did 
Thouifh haply he might be panloned by 
U he wouki not shelter himself under it.^' 
to that particular relating to purloining 
I, or any corni|>tion in his office, if, 
think that an argument probable to im- 
1 kive tlie gentleman so well that I 
hardlv arime him to plead it. 

' Arch. I will not take notice of par- 
«iB geat fa nens pockets, but that act of par- 
taken of. I said formerly, u|ionthat act, 
MB it was wdy for the sake of some f^reat 
na." If hwyers say that Seymour is not 
to the prizes, &c. by that act, put 

put, That the eonsklera- 




tion of tlie Articles be referred to a corauuttee, 
it passed in the negative. 

liesoived, " Tliat Mr. Seymour be im- 
peached upon these Articles, and that a Com- 
mittee be appointed to pi-epare the said Im- 
peachment.'' 

Mr. Harbord. 1 have set^n no other prece- 
dent of commitment upon a charge of misde- 
meanors, but that ol sir Giles Mom|>esson. 
The House did onler liis commitment to the 
Serjeant. I desire the loiii^ robe may consider 
of it. 

Sir Christ. Musgiavf. Way call for tlie 
Journal, and see the proi^ent of sir William 
Penn. 

Mr. GarrOKay. We have not been frequently 
troubled with iiii|»caclimcnts ; but iu the last 
parliament, the case of the im|K»chment of 
lord Monlaunt and sir William Pcmi was ibr 
misdemeanors. That of lonl Clarendon was 
another case. In this you cannot extend the 
impeachment farther than the articles. 

^ir Thomas Lt:c. L'uIcsm you \wll do, in this 
case, mure than has been done in any, refer it 
to a conuuittce. Consider the precedents of sir 
Giles Mompesson, \c. Ik^cause nobody would 
be security for his forth- coin iLg*, anil no con- 
fessed the fact, he was imprisouod. Is there 
no diHerence lietwixt misileiiH'anor andtrca.sou ? 
But 1 will not enter into the debate, but desire 
to know the coin-se of all |»arliainents rehtiiig 
to prece<lonts. Li't the fact Ik' plainly before you 
and do what you will. 

Sir Fr. Tl mnin^ton. Be careful not to go 
from the rules of right. I appeal to you, if 
an iufonnation of luLsdenunuior Ix; against a 
man in an inferior court, whether they do not 
imprison the party till they shall thiidc fit to 
bail him ? I bi*lieve there are several prece- 
dents of ineiiibi*rs couiplaincHl of here, that 
have In'cu committed. Sir John JU.*nnet was 
taken into custody, in onlor.to have an impeach- 
ment drawn against him. Seymour beinif com- 
mitted to the Serjeant, if he sa^', ** I desire to 
be bailed,** he ought to be in a court of record. 
But I take it, there is more value from an im- 
peachment (»i' the House of ('ommons that 
sounds, of grie\ance, \c. It is not the judg- 
ment of the House that he should remain in 
cust04lv, but for so small a time till the iui- 
{leachmeiit may be drawn up. Hiirhor prece- 
dents than thosc^if the lung {>arliiiment nuM 
Slide yim ; that so, if he stand conunittcfl till 
e impeachment lie drawn up, he has no wrong 
done him. 

Sir Chrii. MitufiraTe. I cannot agree to refer 
this to a committee to examine Preceilents, and 
in the mean time to conn nit him ; wliieli is 
first to commit him, and then to examine pre- 
cedents of commitment. 1 nonlil know by 
what rule you commit him to cuKtcHly, if the 
crime lie bailable. If he offer bail, the Hoiitie 
of Commons cannot bail him. liCt us that 
complain of arbitrary courts take care that we 
be not ofienders ourselves. Ik;ing a member 
of this Home, you cannot dii'est himofthepri- 



«lbere 



151} STATE TRIALS. 3* Charles II. iSiOi—Prteefdhgiagi 

vflepfB he buout of the House. Pray vidk in Kvcb f« preoedenU ot niinwiiwiiiii fran 
vtT\ steps In this nmtter. Tbis nuumer of pro- atteodance in parlianHoL"— " Orteed, ' 
cee£iigiii not for your honour. he be MupendM whikt the Irnpeacluiia 

Sir William Joaa. In ^ our proceedings we •■ ■*■ — " 

are lu well to satisfy our own coneri^iw* as 
other mens. I amyet hut young in pariiameut, 
but what mnvK me is reama oflBw. If a man 
be accuaed of crimen, there is not a i 
sbould be in cnatody ; it may be, in 
is danger of AighL If hebeaeciued of capital 
Crimea, the man may ruu awaj', anil hazard bii 
nalBle, to mtb bis life. In aome capital cases 
a man cannot be bttiled ; but in most cases bail 
piay be taken. It is iiaid, "be may go any 
if not imprisoned;" so far, it may be, wed^ 
vre it i but the reason and prartice of all olbei 
eonRi ia against it. I desire only that your 
■MCfldeaia may not outgo all othio' Coucti of 

Celand Ttha. If yon do any thing, and hare 
MO nreceiletit fbr it, Hevmour will have all the 



honour be ezpoaed. 

oieocea, ptay let preoedenti be searched. 

Ordered; "niat, the searchii^ for Precedents 
coaceming the committing a Member lo custody 
vben impeached in pariiament, be referred to 
the Committee appointed to dnw the Im- 

Decenditr IT. 

Sir William Pulteney reports irom the Com- 
mittee to whom it was referred to prepare the 
Impeachment agaiQst Ed^i'anl Seymour, esq. 
n member of this House ; and to search pre- 
cedents touching tlie Imprisoning of Members 
of this House, nhen impeached m parliament; 
Hiat ibe eommitlee bad directf^ him to make 
a special report thereof: Which he read in bin 
l^ace ; and afterwards, driiTercd die same in 
at the cleii's table : Where the same was read ; 
and is as fallows : 

** The 18th and imb king James, air Giles 
HoDipcMon'scase^ whowasGOnimitted by the 
House to die Seijeant's cnstody. He made 
his escape, and a proclamatini was iasned out 
from the king to apprehend hint, (he reads the 
IVodamatiaa) he being committed by order of 
the HouM, to be soit to the Tower. 

" Sir J<din Bamett's case, who was Judge 
of the prerontiTe court, in the IBth and 19th 
ILjaoKs: Reatdved, That the dieriff of Lon- 
don do Mcure his pemn. 

" Kr William Penn's and Mr. Bmnkard's 
case, as in the Journal 1668 : Penn's runs thus: 
" 13 April, 1668, Onkred, That Penn do at- 
tattd the I4di.» And dien there is n Narrative 
* ~ ' lemeni of Frise-GoocU. 

Thursday next he make 



to Moaint Peon with this order, and Penn was 
tB dehTcr hia answer. 
" A Immi from die cwiimiiiMWis ofac' 
I waaread, and the etidoiGe was read; 



■•<*imd to hsdnwn up against hiB, and to 



" Mr. BrunkanI not beii^ to be fmmi 
tus coBtonpt in the wari^ the Jutioe e 
Howe, Ordered, That be be cxpdM 

Mr. Harbord. The piccadenis m w w ted 
sueb as the House ordered to be ann 
which were none but OMamil 
peacbments. Mompesson ' 
the se^eant, but he brtdu fraa that can 
and (be Lords ccnsnrad him; they dtgi 
him from his knighthood, and fi ^ 'tir hini a 
of numey. BeonetMrred fiir the unirc 
of OxfiMd, and w« jndge of iho prang 
cout. He tetk. great aami of iudb^ 
bribes ; he likewise waa tuned ei* «l 
House, but being sick aad infinn, was 
mitted to stay at his own Ihmbb. He wa 
dersd to be coar^ed to the Ttnrar by 
sheriff of London, or to take aecHnqr limn 
for his appearance. Ihere are two odter 
cedents in the late hmj^ p'*"''"lWi 1 
was accused by the commwODn of noei 
of taking prize-goods out of an Bait 1 
ship : he stood up to justify hhoMif fi«n 
artides, and was suspended. PrecefcH 
fximmitmcsit were aenrahed. HasnpanM 
away, fitc. Bennet was not cnsnaitted, 
Brunkard was aecnaed for csnsing die di 
ship to strike sail, when the fleet waa in 
suit of dte Dutch. He did nut atteod 
House, and was expelled, and articles wan 
hibited against him. Asftrtheaiale of I 
mitment m general, I find |wecedents andi 
of commiimcnl for crimes of much leas na 
as, for speaking scandakMsly erf acts pai 
19 king James : Mr. Shepherd said, *' ' 
the bill for the better ke^mg the Loid'a 
was rather like a gin against Ihe papista, 
acakist (he Puritans." Wbetherhehadai 
clination to farour popery, I know not. 
did not explain, in his plai-o, tDgiTesatii& 
totheUouse, and waiexpelletT Sr £da 
Sawyer was the Ling'n Mrraut : he exi 
douUe to the bonk of rates. Herrttf 
Dawes, &rmers of the customs, wen < 
manded to come to Whitdiall to diseomM 
matter. By thedukeof fiuckingfaam'a&i 
Sawyer came tothe House, andlbenwcn 



'liament. Dr. Parry, in ^ 
Stc. For a hundred years last past, preoe^ 
are rlcar of cran mitment of persona impcoc 
UpoB the wbok matter, I more, " iW 
wUl commit Sir. Seymour to the seneanL 

SitJat^TrtdtuMam. I did attewTlha c 
mittee that you ordered to senreh fbr pr 
deub : the matter has been evened by I 
bord ; give me leare (o express it mora fl 
and to hare 



STAT£ TRIALS, 32 Charles II. l6%0^^Edumrd SeymouTy esq. [159 



eofgiienuioa. Mompesioii was cbtrved 
le moQopdy of lioensiiM^ inns and ue- 
s, &c. He confessed nis crime itahe 
lioee, and before the Home ; and the 
daj, upon the report, the House re- 
. to go up to the Ijords to impeach him : 
and not tiQ then, he was committed. He 
■ed the crime he was charged with, and 
mr of flif(fht he was committed. Sir 
rd Coke ddirered it as the opinion of the 
iaaesy ** That, mdess some persons would 
tike fiir his forthcoming, he should be 
dbjrthe seneanf After this vote for 
—iiUu ent, l&e Commons addressed the 
i snd both the kiiu^, to issue out a pro- 
lin to take him, being fled. Sir John 
^a ease was much the same, for cxor- 
M m m court ofjudicatore. Sir Edward 
iDe nuule the report, ''That he had 
many bribes, and had committed extor- 
in his office." Dennet was not in the 
r; he was sick, and was heard l^his 
d at the committee, and the llouse 
■at suffer them to be judged, till tfiey 
kcard hi then: pUoes. Bennet continued 
nose of sickness, and his counsel being 
, ^ Whether he would confess, or deny, , 
■m/* they aaid '• Neither.'' Where- 
he House came to this resolution, '< That 
K ia faulty ;'* and so he was ordered 
decosloily of the sherifls, &c. to be 
iilBd to the Tower of Lomlon. The other 
tests t j q u o i l gd are foreign to this case be- 
SH. Tney were committed upon Uie no- 
r 6f die tfiing, and suspicion of flight. 
■WIS onhr suspension of the House, and 
Bid^ for nis fliglit, was expelled, and an 
voted against him ; but nothbg 
It. As for Shepherd's case, 27 
1 know not where Harbord finds 
Mtin any journal of that time. As for 
I CMC, no doubt but tliis House has 
r of jiMtein^ their own members : it was 
kaak reflecting upon the proceedings of 
fsdae, and so judged, " upon the House 
* You arc upon prosecuting Seymour 
lisrds House, ana so I suppose your 
ittBcntofhim b in order to his custody, 
I pooishment. In cases of information, 
ife not erpelled a member witlwut wit- 
I beiiig heard. It has been moved, 
t Ifr. Seymour mi||^t be s(>cured.*' I 
I to you whether an unpeachment be not 
i uiat charse ? It has aln-ays been, that 
rinof the House are free from arrests, 
tfBcaseoftiplony, treason, or breach of 
MB. Have yuu a mind to think fit that 
MV be committed for an accusation that 
r-HaU does baU ? For libt-rty of a 
I is as essential here, as liberty of 
!■ Hen. 6*s time (it was an unfortu- 
,1 wish ours more fuitunatc) the 
Mtk then aiming at the cnmn, no 
~ so much inliis way as Thorpe, 
Commons, who upon an oxe- 
him. This parliament did what 
ftr ihs ^ou%e of i^oncaster, and 





from thence came the civil wan, and so much 
blood ; but the same parliament could never 
extirpate the House ot York till tliey garbled 
it. If once you pass a resolution, ^* That an 
information upon a bare averment must be ne* 
cessarily followed witli commitment," I would 
know, whether you garble not the House P But 
consider the conse(|uence ; no man's innocence 
can save him, if his testimony is not heard till 
his trial. I would know, whether the gentle- 
men, who would commit Seymour, think he 
cannot find security for his appearance P Thero 
is no likelihood that Seymour should shun his 
trial. 1 move, <* That he may not be com- 
mitted." 

Mr. Harbord. Tlie chairman was directed 
to report what he did, and no more, and the 
committee, if there be occasion, will justify if. 
I did not cite Hall's case, but the journals wers 
brought to us, and none beyond 1640 ; some 
few notes the committee were forced to oae^ 
and those were brought by Mr. Petty, which 
we took to be authentic. If we had made no 
search but in the Journals, they were so im- 
perfect, thai we should have had no preoe- 
dents at all. Tredenham told you of the 
Speaker, Thorpe, arrested in Hen. e'stime, 
ike. I woukl preserve the privilege of your 
members, but i remember about ten years ago, 
there was a design to turn out eight or ten 
membera who voted against the Court. I laid 
my hand to the woric, and to prevent it, I 
searched the outlawry-office, and found 56 
members outlawed, and Mr. Seymour sat many 
years in the chair outlawed. 1 pulled that 
out of my pocket, and saved those eight or teii 
by it that were designed to be turned ont. I 
know not whetlier Seymour will run away. 1 
have told you, that my opinion is, to secure 
him ; do as you please. 

Sir William Pulleney, I observe that, upon 
commitment*!, ^c. the person accused was 
citlier committed upon confession of the fiu:t» 
or flight. But it is moved, " Tliat witnesses 
be produced against Seymour." But if he 
should know baore-hanu what they can say 
against him, tlieymaybc corrupted, or me- 
naced out of their evidence. But when you 
have given j'our judgment that you will un- 
jieach a man, there is no precedent to be found 
that, when a judgment of impeachment has 
been found and carried up to tne Lords, that 
you should say, ^'our metnber is not in custody. 
It does tantamount prove a vindication. When 
tlie Commons came to the Lords House with 
the impeachment of Bennet and Mompesson, 
they liad imprisoned them ; and to produce 
proofs liefore that time may be dangerous, and 
of* very ill coasequenoe. 

Sir Chris. Muifrave. There is a groat deal 
of difference betwixt Mompesson'sand Bennet's 
case and that of your member. To preserve 
your prii^ileges, it is the best way to go by an- 
cient fireccfients : Mompesson's witnesses were 
heard at the committee before he was chaiged. 
There is a great deal of difference betwixt a 
bare assertion againata man, and when yo« 



159] STATE TRIALS, 32 CUAKLU II. l6S0.~Proeadinga agmut 

an usared of endence. One reHon why I rauxled the said Aiticia to be m^ 

HonpeMOD was Mcnred, wai, becauw nobod^v I 418.) 

wodU aniwcr fbr his fimh-comiiv. IF hii { The Hoiute being' aoqiuiiitEd, " Tl 



p4inuhiiieDt, vet if'Seymoui' ' "*"' tieymoar, e»\. van ai 

"" " tbe lint , to tcceitethnr lonhliips' pleuure;' 



iras chalged in WntmiDster-HBll, 

Mid aeowiil articles are, tliry nooM take ae- 

ctnilT t^ his appearauce. VVby willvnutben Imet'ltng, 



illcd ID ; and beiiur bmnefat to tbe b 

liy will vnu then kneeling, tbe LonlChanot&r told bim, 

nrntme him ? And it may be the Lords will ' tbere are Aiticlea of ImpeacfanieBt, fo 






It Uiefty. You irill puuiih that jud^, Criniei and Sliatemeanon, braogbl fi« 
1 bclieie, that will not bail a perxnn Uut is Hoiue at ComuuUB a^tiiHt bim, wb 
bwhble bj law. Seymour may be fgrtli- 
eomini; upon win 
therefore I would di 

Mr. GomKFay. Methinki you are iTT^nlar, 
and a little atbichand with it. You luost rme 
" That tbe Articles iDiut go to the Lordt ;' 
daeSeymourwill standcommitled.andnnthing' < 
will appear ^rainst him. iSir John Bennet 
waa baited by the sheriff of I^ondon ; and if 
•o, tievmonr may be bailed to betortb-comintc, 
and tiiere ia no danf^ of bis escape, ii 
caae of miidaneaiior ; therefore put the 
Iff his Articles. 



should b«ar read." Which ba 
iKty for his a|>pearai>ce, and i sired be might have a copy of the Articl 
DOt coiDput him. a short lime eireD him to pot in his i 

I thereunto; nliicb he is ready to do. 
Oidered, by tbe l^wds apnitaal »'»■< I 
' ' ral in parliament assembled, 'IlMt Edwai 
, mour, aq. may have a copy at the Arti 
Impeachment bntii^ht up by Ibe Ho 
Commons against hmi. '' 

IJecember 23. 

This day being appointed for Edwar 

mour, «u|. (o put in his Answer to the i 

Brr William Pouheoey reports fit>m ,ho ?„ ^P"^'"^'. ^''"«^» *""" »JL"< 

Conmitlee appointed to pit the Artid« against ■ £?^r'.f^;i!u''''i'*r^.,""'1.*** 
Mr.Seyn«niilntothef<.Snof«nimpeacS.ent. ^,^,'^.'^' "'" Lo^ Cbai^or 
Tliat the »iid Committee had aJed upon a ^jJl '"" d"* ."JTIT'*^ ' ^^ " 

- - ^ ' - i™gea It to be a high and (ri«at fiirour 

from ibis most honourable Huu$e, (hat I 
commatulcd to answer so soon as this da' 
said. His Answer was short, [dain, atut 






which he read ia hw place ; and aDer- 
waids, deUrered the rame in at the clerk's 
talk ; where the same being twice read, was, 
upon lht> qiKstinn, airreed to. ' 

Ordered, " Th Lit the said Articles, s> 
upon, be ii^mssed. 

" Ordered, ■' Tlial Mr. Sej-mimr be taken 
into ciistoily of the SFijfaiit at'Armt attending 
Ibis Housi', for Kccuring' bi^ fbrthcomii^, to 
ansncr to the Iiiipearliment of this Houi 
against him, until In; shall have given sufficient 
security Id ibis Hnii^e, to anstver to the said 
impeuchroent. 

Onlered, " That the Serjeant at Arms at- 
tending this House, bt impo'.i-ered to remve i,- i- l- 
«™.y IW 11. for,N.™„,„g ,,f ,1,0 ,^d M,^ i |i';Sj;^,^"„^^^ 
Se>inour, to ansircr to the irnjieacliment of ' ^j ^^^ * ' '"""".• • 

this House." j "To the fii,ii Article: Tlut this m-spo 

Then sir Williaia Portinan. Mr. Ash, and l>cin|j; Treasurer uf the Nary, did itn-ivp 
Others, proffered (heii-sc-curitv, 6i:c. ' '""- :— ii—.i.- — ■- - - 



while be w 

ie Ass 

SEVMUI7R, esq. to tlie Anirles of lm| 
ment exhibiteil aj^iiist him by the 
mons assembled in Psrliamcnl. 
The said Edward Seymour, sniinrri 
selTalladranlagcot'cxcejitir 



no the in 



u Lee, It is not an ordinary ci 
Ibr a inember accused to have so many t 

know therefore that you have made au offur 

impmrer the serJeant to take his security.* 

HoL-sE or Loans, Dcrcnbtr 21, 1C80. 



raised by tlie uct of pr.rliumeut 
liuned in llie sUd lirst Article, lor buihli 
ships. tL; sum of AM.tiU. U. lOd a 
more; a'l uiiich iliU ItesjiundrM did ap 
ihe usls mcutionca ij th.; siid ai-l, an I: 
Rcs|iimdent'<i ticoiunti. r->aily to bo jirodu 



this lionourab! 
pear. .And tlii^ Hi 



d 90.iiOQl. • 



iiiident > 






as brought from tlie House of I 
Commons, by sir Gilbcn Uenard, knight, and uiuiues raised oy luc saiu i 
others ; who did, in the name of llie Couinioas wlialsocTer. 
assembled in parliament, and in tlie name of all '• " To ibc second .irticle ; This Itcf-jK 
tbe ConuDVua of Em^laiul, inipiacU F.itwarJ sailh, Tiia: he had 40,00U.'. p;in-<'l of ih 
SeyBKHir,eBq.Girsei-eralbitrhC'riu>efiaiKl>lis- me:> raised bv iliuact iiieniiiiiicd iu tit.; i 
dMiieanora and OSetkces; and ivas commaiide'l ' .tnii-le, in his bauds, r.t liic liint- of tlic 
ta exhibit Artideii against him for the said lii:;h I Iictivi\:n llic cuiuniis^siottcrs of the nan 
Crime and Miadewieaiwra. I'lw House com- '^ £a.st:atHl tnuruhams, iiientioncd iu l1 

— } '-ond Article. But tlus Krspoiident d< 

• Bc« the Caae of Warrea HaitiDga, a.D. that lie eierpromisedthesaidiucrchauUi 
|r08,iBaiaC«Ut)CtiMi. - ^ 



le taia 40, 



tliem the said ii),WOl. or any pan of it. 




desires, your lonisliips will bo ploase<I to ap* 
pNOint some speedy time fur hiiv trial and to as- 
sign him couD»fel leaniiil in tlie law, to assist 
him in his dclencc. And your Petitioner (as ia 
duty bound) shall ever pray, ^r. 

" EdW. SCYMOIR." 

Mr. S?3'mour liring* railed in ; he was asked, 

" W hat i.iiunsel lit^ did dusirc?'" And he named 

' Mr. Pidltxlcn, Mr. Keck, and Mr. Thui-sby. 

j A Message was 8<?nt to the House of Com- 

I nions, by sir Miks FltTtwood and sir \dani 

Oateh'y: To aetpiaint them, that the Lords 

hine receivetl a Petition fn»m l\lr. Strymour, 

wherein he desires a «lay may be appointed for 

his speedy Tvial ; that'their'lordships, Hnding' 

no issue Joined by replication of the House of 

Commons, think fit to grive them notice hcrr<»f. 

Onlc«Hl, That Mr. Pollexten, Mr. Keck, 



I6l J STATE TRIALS, 32 Charles 11. l6&0,^Editard Seymour, esq. [ \6% 

Has RcvpAmleiit further saith, That, before the 
mt EartJand merchaots did bring tliis Itc- 
■onflrnt any bUU signed bv the rammtssionei's 
m fte aary to be paid, tois Respondent had 

eiut said 40.0001. by virtue of several or- 
■■gned upon him, to be paid for the usc<i, 
MacBordiBg to the directions of tlie said act. 
" lb the third Article : This lieniondent 
■ilh, lliat be frai Speaker of the House of 
GnvMiia h tibro he was Treasurer of tlie Navy ; 
wd that, to Bup|M>rt the dignity of the place'of 
flipaker, his m^esty was graciously pkiiseil to 
gmA onto this Respondent the yearly salary 
tf Sv|W>/. ; which, to avoid the' charges and 
of die Exchequer, was paid out of the 
~ for secret service ; which this 
It dodi auknowledge was paid, as well 
the times of prorogations, as during the 
lof sessioiui. 
•*Tothe fourth Article: This Respondent 
■Ih, Tliat the matters therein charged are so 
aad uncertain, that this Respondent can 
no particular atiswer to the same : but 
that he did not act alone in any tiling 
of the prizes, hut jointly 
according to his commi^^iou ; and 
Matrer commit any such fraud and deceit, as 
h At Slid Article mentioned. 

' jtt whicli h^ humbly offers to the conslder- 
n of Ihb hmiourable 'House. 

** EowARD Seymour." 

Tka Loc^ XThailcdlor asked him, '' If this 
MK the Answer he woiild abide by V/ He said, 
'hvrv;* aad withdrew. 

Oifaed, Hut a copy of this Answer be sent 
Ip ihfe HoBK «f Commons. 

' January Z,\^t. 

A MiIm was presented to the House, from 
Urwf Seymoitf, eaq. ; which was read, as 




* To die li^it hooouraUe the Lords spiritual 
and temporal in Parliament assembled : 
ITw hmmrfe Petition of Edward Seymour, 
tsqnire; 



i 

I 



^ That whereas, (or some time, 
kihMh lain under the weight of an Impeach- 
MftfluuA d»e House of Commons, of several 
V|h crimes and misdemeanors, to which he 
kihgireu an Answer to your lordshi|» ; and 
e Iw is in no manner guiltv of the Articles 
^1 charged with, that his truth and in- 
uy & fiiDj vanifested, he humbly 



j his trial, upon tlic Imjicaclmicnt of the Houso 
of Commons, whereby he is charijcd with high 
crimes, misdemeanors, aiul riflciiccs. 

House of Commons, Januartf 3, 1681. 

The Ans^^TT of E^lward Seymour, cs4|. to the 
Articles of Impeachment exliihitcid against him 
by the Commons, assembled in [larliament, was 
read. 

Ordered, That a Commiltee be appointed to 
prepare Evidence n<ifainst I^lr. Seymour, and 
manage the same at his Trial. They are to sit 
de die in diem : And arc im{)owcred to scad for 
persons, papers, and records. 

House of Lords, January 8, 1601. 

Ordered, That Saturday the 15th day of this 
instant January is hereby appointed for thu 
Trial of Kdward St-ymour, es«i. upon the Arti- 
cles brou;4fht up against him by ttic House of 
C^ommons, whereby he staiiiU chai-gcd with 
several high crimes and misdemeanorH. 

A Mes.sage was sent to the House of C-;m- 
mons, bv sir John Coel and sir Timothv Da'd- 
win : 1 f » let them know, that this House h:i\ a 
appointed the 15tb day of this instant January) 
for the Trial of Edward SeynuiUr, e9k\. upcn the 
Articles l>rought up a&nunst him by Ihe Housa 
of Commons this day se^ ennig-lil ; ai;d that tha 
Commons may reply, if thiy thiid-: lit. 

Two da%'^ aAcT this the pailiament M-as pro* 
ragued by his ii'tijcsty to the '^Oth of January, 
and soon alter was dissolved. 



▼•U TIIU 



M 



IfoJ STATE TRIALS, 52 Charles n. l6SO^Proceeibig(i Mgtdmti 



£76. Proceedings against Lord Chief Justice Scroggs befor 
Privy Council; and against the said Lord Chief Justio 
other Judges in Parliament.* 32 Ch^^rles II. a. d. 16 

Proceedings BcroRE the Privy Council. 

Articles of High Misdemeanors, humbly of- 
fered and presented to the oonsideratioD of 
his most sarred Miyestj, and his roost 
honourable Privy Council, ajF^inst ^r 
WnxiAM Scroggs, Lord Chief Justice of 
the Kinjf's Bench; exhibited by Dr. 
Oates, and Capt Bedlow, 31 Car. S. 

HAT the said Ixnrd Chief Justice, con- 
trary to his oath, the duty of his place, in con- 

* Roger North, whose representations, how- 
ever, are always to be received with caution, 
lias interwoTen his character of Scrog^, Jones 
and Weston into the account which he gives 
of these proceedings against them : 

** Mr. Jhstioe Jones was a very reverend and 
learned 'judge, a gentleman, and impartial; 
Kit, being of Welsh extraction, was apt to 
warm, and, when much offended, often 
shewed his heats in a rubor. of his countenance, 
let oflTby his grey hairs, but appeared in no other 
disorder ; for he refrained himself in due bounds 
and temper, and seldom or never broke the laws 
of his gravity. There are, in the Report of 
the committee, certain relations tencfing to ac- 
cuse divers of the jud^ ;- and we know how 
such matters came ready cooked and dressed 
up by party men to serve turns, and are pre- 
sented, with the worst sides fomards, to an as- 
sembly then wilFmg to take every thing in the 
worst sense, and who, from super^oial coloms, 
eoDohide deep in substabces ; which matters, 
passing without hearing, but of one side only, 
are not much to be regarded. Of this sort was 
« story from Taunton Dean of the punishment 
of one Dare, the very person that affronted the 
king with a petition , as I touched before. [A peti- 
tion from TauntonDean was brought up by a man 
whose simame was Dare: He, with his fellows 
waited upon the stairs of the House of Lords, 
and, as tne king came down, put the roll into his 
hand ; the king asked. How he dared do that ? 
Sir, said he, my name is Dare. But he had 
better been asleep elsewhere ; for he was af- 
terwards raii^ht speaking seditious words, and 
was punished by the judge of Assize ; and 
the judge, wlio was then Mr. Justice Jones, 
l»eing pressed to intercede to the king for him, 
answered. He knew no favour he deservetl ; 
which was aflenvanls put among the sins of 
the judges, p. 543.] This judge, it (teems, upon 
A 1(^1 conviction for seditious words spoken, 
inflicted such punishment as he thought the 
crime deserve*! ; and, being presseil to inter- 
ct^e with the king for his majesty's favour 
to him, answered he knew no favour ne deserv- 
ed. There was one of the sins of tliat iudge. 
There was nothing more in particular ; but he 
vfm takfu iu, with tba other jvdgea of the 

3 



iemptofthe king, bis crown and 
set at liberty several peraoiia aocoaed m 
before him of High TreasoD, wkhomt 
ing ever tried, or otherwiae aoqoitt 
namely, the lord Bradendl, kc. 

n. That at the Trial of sirGeorgeWi 
and others, [See vol. 7, p. 589, of th 
lection], at the Seaaiona-hoose in t 
Bailey, for High Treason, the said Loi 
Justrae (aocordin|[ to the di^ty of hi 
managing the s^ trial, did braw-b> 

King's Bench, for two or three matt 
passed there while, he sat as judge 
court. One was the refuainsr to preset 
kingapetition of the Grand Jury of SI 
about sitting of the pariiamenf. If tfa 
crime, it was a very slight one ; nor do 
any man of law will aay that the jwi 
bound to cany all the crudities of jury- 
the king, but are to use their discretion, 
address, of that sort, is no part of thai 
nor do they, in any respect, repres 
county ; they are taken * de Corpora 
' tatus,' and not pro, nor have any rati 
bind the country in any thing ; hat, 
ipatterB, out of the crovm law, they 
single persons and not ajury,nor is any 
trate, or other person, bound to go c 
errand. Another great sin of that cc 
the discharging the Grand Jury three c 
fore the end of the term, while tl 
divers bills before them to present; 
which was an indictment of recusancy 
the king's brother the Duke of Yodc 
discharge, they said, was precipitous ; 
usual, and done on purpose to stop that 
ment, which was an obstruction of^tlie ji 
the nation. The jury here, it seems, w 
ijCTioramus, though from the same i 
shall soon hear of a total obstruction of 
and no crime at all to be found. But 
examine this affair of the judges, first 
solutelyin the judges discretion whc 
termine a session, and when to detain 
charge Grand Juries ; and « de offici< 
* non datur cxceptio.' But what did it 
an Indictment, that is the cause of the 
and who else is concerned in it ? But f 
end ? Not for any real effect, for sucl 
may be Non Pros, or pardoned the n 
ment. What then ? To be a public ai 
the king and his brother ; and that if t 
had stopped such an Indictment, the^ 
have it to say, in order to rebellion, tfa' 
was no justice to be had against pajaati 
they roust right themselves. Now wai 
veiy careful provision of the coml, by 
dmcretion the law undoubtedly entmi 
irith, to stop such an inconvauenoe, m 
as it went off nkatly and witfaoiit noiie 



5s] STATE TRIALS, 32 Charles II. lesO.-^Lord Chief Justice Scroggs. [l66 

irb Dr. Titm Oites and Mr. Williun Bedlow, 
•-0 of the inincipil witnesses tor the king in 



etioA are the only masters of discretion, and 
9 not allow the liberty uf any to tlieir su- 




** The next matter, which was higlily agspra- 
fted agwuKt the iudges of the King*s Bench, 
toch an iUegal invasion of projierty as had 
It been heard of since William the Conqueror, 
u a role made by that court, that a certain 
•k— liber mthutatus, The Wcckl^r Pacquet 
' Adiioe from Rome, * non ulterius imprima- 
Iv.' Tlie caae of that book was this. The 
Melaboiir of the faction at tliat time was 
■f tomake popery as odious and dreadful in 
» hUs of the common people, as was ]K>s- 
Up ; for then the inference of course was, 
llbiayoaare to expect from th6 Duke of 
ttk, and that the long and the duke are all 
e, etgo. Sec. Upon this design - a weekly 
fell cane fbrtb entitled as above, which, under 
of telling all tlie extravagant legends 
' m a buflbon style, continually re- 
CD the gjovemment of that time; and 
» thai collection went on and was pub- 
I pieces, which the zealous gathered 
most rdigioualy, and now would ex- 
for any softer sort of paper ; for 
grows ao insipid, as old state 
Tnt printer I think was one Lang- 
or one Janeway, and had 
against, and, I tliinlc, convict and 
for some of them. But it was an 
nol easily c o rrec t ed ; for, the outward 
^ ' ^ against popery, to be accused 
to be accuseil for taking the Pro- 
against popery ; and every week 
BO that a conviction of one did not 
li the next, and no ordinary judicial 
" reach it Thus it was very hard to 
his inconvenienoe, which may bap- 
m M any time, when popidarity runs very 
t any government. At lens^h the 
of tnis rule was made, but, 1 think, 
BO frrther, nor was the printer taken 
pfbranj contempt of it ; but it was enough ; 
K nde itidf was shewed, and, as I said, made 
ireat noise. 1 do not remember much ugi- 
Ifan about die reason upon which the court of 
h^B-BeuA took this authority of making a 
-'- '- J order upon them ; but it seems 
on that law which takes away the 
her ; for it is therein declared, or 
have resolved, that all jurisdiction 
the Htar-Chamber might lawfully ex- 
icaled by hw in the court of King's 
And It is wen known that the Star- 
made proviaionary orders, as well as 
to obviate great offences ; and 
aa Hales (in a posthumous piece) al- 
~i the originals are not extant, may 
into the usage of the common law ; 
^m matteiaofpnUic nusanccM. With- 
•kL Ae point was eontrovertible ; for it 
kt mad on the other ride, true, but then 
foUov the natnrt of their 





that case ; and encourage the jury impannellud 
and sworn to try the uialefactorH, against the 



proceeding, viz. the King's Bench by indict- 
ment or information, having no ground by law 
or precedent to proceed fur utlences, extra to 
the court, othen^ ise. And when a book is con- 
vict of crime, it may be part of the judgment 
* quod non nhcrius imprimatur,' uliich will 
bind the person defcmlaut. But how inei>t this 
method is to stoji such a Protean mischief, uiWr 
a little time, may become sensible. But admit 
it not to be a clear case oii the couit-side, there 
was ground enough for the court, as they say 
good judges do, t«) resolve it fur tlieir own ju- 
risdiction ; and errors in judgment of courts of 
justice are not criminal, but corrigible by su- 
perior authorities. Therefore, in quiet times, 
this question had been carried into the House 
of Lords by a petition of the printer, if he had 
thought himself ffrieved; and then tlierc had 
been a due consideratiuii uf the law, and tho 
king's counsel hod been heard upon it, and the 
determination authentic, as upon a writ of error ; 
or occasion might have been taken by a sburt 
clause in an act of parliament, to Imve declared 
the law one H'av or other. There should be 
always a distinction between corruption and er- 
ror ; the latter, if Westminster Hall may be 
heard in the case, is no crime, nor is it, with 
any aggravation, to be actionable at law. And, 
upon the reason of these instances, it seems 
that to proceed by imjieachment, for error in 
judgment, as for crime, is contiary to the po- 
licy of the English constitution ; in which the 
authority of courts of justice is sacred, and the 
exorbitances of tliem, when they happen, should 
be set right without exposing to contempt either 
the persons of judges, or Uie reverence due to 
their stations, lest what is got in the shire, is 
lost in the hundred. But it is seldom fniuid 
that, when ficrsuns are fallen u|)on in an heat, as 
upon the vindicative turns tit' parties, any deco- 
rum is observed, or due steps taken ; for tliey 
will always lie too long or too short. Thus far 
concerning the King's Bench, as a court, and 
its legal jurisfliction ; which, in this instance 
sho (but in nothing mure) touched 31r. Justice 
Jones. 

" The case of Mr. Baron Weston was very 
extraonlinary indeed ; he was a l(*anied man, 
not only in the cvmimon law, wh<*rein he had a 
refined and speculative skill, but in the t:i\i\ and 
imperial law, as also in history and hunuinity 
in general. But, lieiiig insup|H)rtuhty tortured 
witli the gout, became of so touchy a temper, 
and Husce|itihle uf anger and pusailun, tliat any 
affected or unreasondbie up|K>sition to his opi- 
nion v^uld inflame him so as to make him ap- 
pear as if he were mad ; Ji^it, when treated 
reasonably, no man e^er was mure a gentleman, 
obliging, condesccnsive, and comumnicatiw 
than he %vas. Therefon;, whiki a practiscr, he 
was (»bserve<l always to smxecd better in argu- 
ing solemnly, than in inanaging of evidence ; 
for the adversary knew how to touch his pas- 
sums, and make th^m difonfer him, and tbca 



l€7] 



ifmiff 



said witriMsss, by his publicly upeakinff slight. \ deuce, and the misrepeating and onitt 
^ly agairiKt them and their cri. j terial parts of thdr evid^oe ; whisr 



]y and abnsivf ly againKt 

take advantage of it. But, at the* bottom, he 
yras ns just as the driven snow, and, being a 
judo-c, f„r which office he was fit, because he 
had ni'itlicr fi^sir, favciur nor afl'ection besides 
his judginrnt, ho would (it'tcn, in his charges, 
ffhin<* with his hurning and wit ; and a little too 
much of that bruu^^htthis a<Tusation over him. 
lie vias one of a cliAi' conduct, and by princi- 
ple, honest and just, and, as wc fuid in the best 
of that character, nn i\as he intreiiid, and fear- 
ed not the face of all iiuman kincJ. He made 
DO ceremony of flying in the face of faction 
at all turns, and, -being one of thf»sc they 
call prcrut^ative men, inaccessible and unalte- 
rable, he uas hatefl bitttcrly by the party. And 
to do liiiu and the n'st of those gentlemen 
rif^ht. 1 uiiist needs say that the prerogative 
of the cix/wu is a doctn:ie so constantly recom- 
mendeil in the law Inioks, that a man cannot be 
an honest lcarne«l lawyer, but must be in the 
popular sense, a prerogative man, nnd, in every 
»*ense, a hater of what they call a rc*public. 
This Icanied judge was so st«auly in his admini- 
atn\tion, that no advantnirc could l>e taken 
o^inst him for what he did ; so they watched 
his circuit rhargfcs, to iiud soinowhat he might 
M V 1o accuse hun of And the onW passage, 
I find chnp^-cd ujion him, was at Kingston as- 




servetliem but a parliiumMit. lie knew no re- 
j>n'sentative(.f the nati:m bit the king (which 
in an ai-tual svw^v^ is true, lor, in jiarliamont, 
«urh, IIS do not cli'.)ose, have no actual mprc- 
f>entati\i' ; but, in a Ktral si.it^i?, as U» the bi:i»jg 
bound ail are repns.iitcjl) all jM)wer, says he, 
centers in him. (That is all coemve |M»wcr ) And 
thru the judge, in the towering of his fancy, says 
' i'fsiith lie (i he king) has wisdom enough to 

* entrust it no nion; witli tliesc men, who have 

* givrn us such late examples of their wisdom 
' and faithtiitiu-ss.^ It would In* hard to pro\e 
hen* \\ lioui he spoke of, so as to fi-anie, out of 
thes*' w-omIs, an uccus'iition ; bui it s«'ems there 
was tio bt'ttt r, and so it c«mc iM-Jine the liousi^ 
of (*oiuiuons ; wtudd any one h:ive thought it i' 

" ft is to In: notc<l thiit,^during this heat, as if 
the oonunoTi law ot' justice had l>een abroga- 
ted, noi.f of tbcs(.' rc\ereud uu-Ji were either 
called U» l<i- lii-aid, or had any tiuic given them 
to answer ; hut the censure of the House, past, 
and, tor |>M.us'iiii)«-Mt. tln'V were to Ih» impeaeh- 
c«l. Th« V noii' n^siiiist 4)aron Weston, was 
' thaf i' ^ V. .nf!s, iuhis cl.avire, were scandalous 
■ to i,ii fi to. iiiati'iii, :"i!l ti'nd'Ug to raise dis- 

* eon!,' Vt:. V nrw :■•»« oioiUnee. It hath been 
the U'^ai^e ol flic nnuiiion law, to chalice men 
withriit't floue, or wor-is, ot' a dire* I >eiise <:(>n- 
ken. Marter of agirravation net er makes an 
accusatiou whove liie ^uti)l•et. uf itM.'lf, di»th 
nutlM*arit. And mi caret uj is the law uf eri- 
loinai nattcns, that it riN^uimaii iudkUu*^ to 



be certain to every intent, or else it it t 
i«-ill be quashed. For which reason, i 
may be taken in any harmless sense, 
the same words will abo bear a crimiuf 
they shall be taken in the mildeat leoft 
however, was it reasonable to bring 
charge as this against an, otlierwise, u 
tinnaLle judge? It was much wonderei 
time, that, in all this noise about the 
none were sent for to the House ; th 
was tliought to be, that they were stoi 
and would have justified all they bad d< 
that was not thought seasonable. Th 
for his part, was so tar from being co 
at the terrible sound of an impeachmei 
w hen the other judges looked grave and 
he was as gay and debonair as at a weddi 
was only sorry that he had not an opp 
of talking in tne House of Commons, ax 
have (!omp(mnded, tor a moderate puni 
to have had his full scope of arguing 1 
case before them. And, as tor impea 
he longed to be at it with them, he ci 
where, or lielbre whom, provided h< 
have his talk out. He was prepared t 
Magna Cbarta, and to demand the J 
pat iunu and his lawful challengiw, and 
that Ijcx Terra was referred to the coi 
not to the (K»untry , and was nothinc* to 
nose against his right of trial ; and, uf 
law he would have died at a stake, and i 
quittiid one iota of his judgment to 
world. It is pity such a st<»ut combat 
not had a clear stage and a fair enenr 
as things fell out, they were not so hard 
** No articles were ever preimreil aga 
of the ju(lg(-s, exn^pt sjr \\ illiam Scro| 
chief justice i»f the King's-bench, 
whom articles were brought to tlie Hoi 
ordered t(» stand ; but i do not fmd by t 
that any nienil>ers were ai»{H>intefl 
I louse to carry tlR'm up. He was a n 
lay too o|Wfn ; his conrse of lile was sea 
and his discourses v iolent and intern per 
talent was w it ; ami he was master < 
city anil boldness enough, for the settii 
wliich, his |>erson was large, and hij 
broad. lie had a fluent ex)>ression, an 
g(MNl turns of tliought and language, 
coidd not avoid extremities ; if he did i 
extremely so, and if well, in «'\ti-eme 
the plot, he was violent to insanity ; ai 
receiving intelligenee of a truer iul 
court, he was converted, and IxTam 
once, no less violent the other wav 
made the phn -drivers and witnesses m 
And U.iti'K and IWslbMMlid him the In 
prefer articles to the king in trouneil aga 
« barging various inmioi^ities ; and th 
an h^'aring. but, they tiiiling f»f prnof, 
juHtitied. The occasion of 1 1 is eon vers 
was told by the |iersou that administ 
uif ans to him, was this. The lord chie 
GOBu: once I'roin WindMur wiiliik Iwi 



7ATE TRIALS, 32 Charles II. l6S0,— Lorrf Chief Jwiice Scrogga. [170 



dieted were by the said jury acqiiilteil 
t thea charged ajj^ainst them, and iully 
I* the said witnesses.'^ 
hat the said Lord Chief Justice, after 
if tfafesaid shr Georj^ Wakeman, and 
' Hiyli Treason, as aforesaid, in the 
buae of the said Dr. Titus Gates, and 
un Bedlow, and in their gi*eat dis- 
at s|)eftking' of them ; said, that be- 

ceil iu his coach; and, amonp^ other 
diemsrgs asked tiiat lord, if the lord 
f (who wosithen lord President of the 
ad really that interest with the kiii£f 
led to have f No, replied that lord, no 
I joiir footman huth with you. This 
tue man, and quite altcrcil the fer- 
18, from that time, he \\M& a new man. 
U for hiin that the i>arliament was 
else they had pursue<l thi^r imiicach- 
nst him, and what an embroil it had 
arliamcut, is not easy to conjecture." 
'0 short account is eironcoas ; " They 
d Scm|j;^ forHifrh Treason, but it was 
It the matters objected to him were 
leiacunors ; so the Lords rejected tite 
tent, which was carried chieily by 
fDajiby's party and in favour to him.'' 
mes, ^h. 

'ranck Winnington, in his speech in 
ment October 36, 1C80, says, *< at 
I's Trial, tliose i>ersons who at former 
d been treated with that respect 
le to the long's evidence, and whose 
i reputation nad stooil clear without 
IB adi other trials, were now not only 
tea, but their evidence prescnteil t*n 
as doubtful and not to be deiiende<l 
• at all other trials of papists from that 
nri. By which many of the frrcat^:;st 
I Kre f|uttted and cleared as to the 
'iboie tliHt were brought for detauiing' 
'■ evidence, and subuming' witnesses, 
hereto, very kindly treated, and dis- 
arith easy sentencesi, es|iecially if ya- 
ut if |iritef4ants, thou^fh only for 
ir vendinff some unUt'en!^ IxKik, were 
d Old la^ly fined. liut 1 beg- leave 
■larw in the case of one Care, who 
ted lor priutint; a weekly inteliigt'nce, 
he FMrket of Advice from floriie, or 
lory of Popery.' This man hail a 
main of writiu«;r extraoniinary well 
aul^ect, and that fiaper was by most 
MWiKhi, not only very ingeniowi, but 
■aetiil at this time for the inforniation 
pfey because it laid open very intelli- 
and ckieats of that church. 



• Vfoa an information e-iven to the 
Kafl^a-bench ai^ainst this Care, this 
; * Onlinatum est, quo<l \a\wt 
Weekly Pacikct, 6cc. iH>n u1- 



vel pnblicetur per aliquam 
)i'f miupque. PerCJur.' I think 
piittte leu than a Uital prohibition of 
Wf ftiaf agaittst popery." 4 Cobb. 



fore the trial of sir Georgrp Wakeman (meanin^^ 
the aforesaid trial) the witnesses ^meaning the 
albresaid Dr. Titus Oates, and tlie said" Mr. 
William Bedlow) were to be believed ; but that 
at and after the said trial, they were not to be 
believed by him, nor should not be believed by 
him ; or tc> that very e/lect. 

IV. Tliat the said Loi-d Chief Justice, by 
reason of his ollico, haih taken upon him the 
power to oppress by imprisonment, his majes- 
ty's loyal subjects; namely, Henry Care, for 
writing* and causing to be printed (hvers single 
Hhect hooks in Bn<^lish, called The Packet of 
Advice trom Rome ; tiir the information and 
discovery of the idolatrous errors and impieties 
of the Icomish church, to his majesty's io^al 
and obedient jirotestant subjects (in this con- 
juncture of time very useful): although the 
said Lord Chief Justice neither did, nor could 
alled^ or charge the said Care with any thing 
contained in the said hook, that was any ways 
criminal or derogatory to his majesty's laws, 
crown or dignity ; and refused to take very 
good bail for him, though offered ; and after- 
wards less bail taken for him upon his Habcat 
Corpas in court ; but by the said Lord Chief 
Justice's means, he was continued bound all 
the term to his good behaviour ; and at the end 
theref>f nntil the next term ; although no par* 
ticular crime was, or could be proved against 
or laid to his diarge. 

V. That to the great oppression of his ma* 
jesty's loyal subjects, the said Lord Chief Jus- 
tice, contrary to law, and in manifest breach 
of his oath, hath, without any reasonable 
cause, imprisoned a feme- coven, and diverf 
others his majesty's said suliji>cts, and refused 
to take bail, though tendere<l, and the matter 
biiiluble, as in the case of Mrs. Jane Curtis, 
^Ir. Francis Smith, See. 

VI. That Uie Lord Chief Justice is veiy 
much addicted to swearing and cursing in his 
<'Oiiusion discourse ; and tu drink to excess, to 
the great disparagement of the dignity and gra- 
vity of his said place. lie did in his common 
discourse at dinner at a gentleman's house oi* 
quality, pubUoly and opculy use and utter 
many oaths and curses, and there drank to 
excess, 

VU. That Charles Pri(;e beinjj accused upon 
oath, before the said 1x ml Chi«*t Justice, to be 
a Popish priest and Jesuit, and iinpriNuncd (or 
the same, and also divei-s otlior i>ei-s(nis accused 
u|Min oath for High Trca>:ou ; :ls namely, sir 
Francis Mamiock, ICicliard Vaii'^'ian, esq. and 
Daniel Arthur, inoivhunt ; the said Jiord Chief 
Justit*e s(>t them at largo ui>on bail, without 
consulting his mnjesty^s counsel, or his wit- 
iiessi's, an<l against tdeir ctrtisont; divers of 
\>hich |K'r8(»ns have not since ap|)eared, but 
liave foH'eitfd their recognizances, and the 
iiersoDs not to be found. 

VIII. That the said I/ml Chief Justice, to 
the great discouragement of his majesty's loyal 
proti*stiU)t subjects ; to \\w nianilitst rncoiirage- 
meiit of the Koman catholic sulijects ; wlien 
inibrmatioii hath been duly and legaliy gifoi 



171] STAT£ TRIALS, 52 Ch arLbs II. iGsO.^Procecdingi agama 



to him of the abode, or person of a Popish 
priest or Jesuit, and a warrant desired trom 
him lo take or search for such priests or Je« 
suits, he hath in a slighting and scornful man- 
ner refused the same, and hid the informer ^ 
to sir William Waller, who busied himself m 
such matters mainly. 

IX. That the trial of Knox and Lane, at the 
bar of the King's-bench court for tlieir misde- 
meanors, in endeavouring to take away the 
credit of Dr. Titus Oa^ and 3Ir. William 
Bedluw, two of theprinciiNd witnesses for his 
majesty, iu the prormg of the conspiracy and 
conspirators against his majesty^s life and go- 
vernment of t^zse kingdoms of Eng^nd, Ncot- 
land, amd Ireland, the destruction of the pro- 
testants and protestant religion, and introducing 
and settling of popery there ; althoug[h the evi- 
dence was so full and clear a^nst them, tliat 
the jury found them ^Ity without goine from 
the bar ; yet the said Lord Cliief Justice, in 
further discouragement and disparaging the 
evidence of the said Dr. Titus (^tes, and Mr. 
William Bedlow, would not, nor did not give 
any chaige to the jury therein, but rose up 
Buddeuly, after the evidence closed by the 
counsel, and letl the said court abruptly, oefore 
the said jury had given in their venlict. 

X. That the saw Lord Chief Justice, knowing 
that one William Osborne was in the conspiracy 
and contrivance with the said Knox and Tisne, 
in the last article mentioned, to take away the 
credit of the said Dr. Titua Gates, andf Mr. 
William liedlow ; and knowing the said Dr. 
Titus Gates, and Mr. William Bedlow, to be 
material witnesses for his miyeflty , in proving of 
the conspu*acy and conspirators, in the said last 
article mentioned, and had been so againsit seve- 
ral of the said conspiartors that had been tried, 
and were to be so against several others of the 
said conspirators that were impeached or accus- 
ed for the said High- treason, and were to be tried 
for the same ; and knowing the said Wiliam Gs- 
borne had been detected belbre the Lonls in par- 
liament assembled, fur his Raid conspiracy and 
contrivance with the said Knox and Lane ; and 
that upon his own oath, tlicrcnpon denying the 
fact in their said cons[>iracy anu contrivance to 
be true : yet out of his malice to tlie said Dr. 
Titus Gates, and Mr. William Bedlow; and 
as much as in him lay t*> endeavour the dis- 
paragement, if not the* supuiTssiug of the fur- 
ther discovery of that hellish and damnable 

ert ; the said Lord Chief Justice, without the 
owledge, consent or approbation of his mu- 
jeity, or any of Ids learned counsel in the law, 
or the said Dr. Titus Gates, or 3Ir. William 
Bedlow ; did voluntarily give the said Osborne 
liberty to make an afhdavit before him upon 
oath, of the trutli of the said tact, he had be- 
fore, as aforesaid, denied iip<in his oath ; with 
intent that the same miffht be maile use of 
against the said Dr. Titus Gates, and Mr. Wil- 
uam Bedlow, to their disparagement, and the 
a|iparent prejudice of bis miutisty, against the 
md eonspiraton, in the said High Treason. 
3CL lliat he the laid Lord Cluer Justice, to 



manifest his slating opinion of the evi 
tJie said Dr. Titus Gates, and Mr. 
Bedlow, in the presence of hia mos 
maiesty and the right hon. the hyrds an 
of his majesty's most honourable privy i 
did daix; to say, that he had, thought t 
Titus Gates, and Mr. William Bedtow, 
had an accusation ready against any bod 

XII. That at the assize holiTeii a 
mouth last, the said Lord Chief Jwvtio 
presence of several justices of the pe 
the said county, did say to Mr. Williai 
low, that he did believe in his cunacien 
Richard Langhom, whom he condemn 
wrongfully, to the great disparagrme 
majesty's crown and dignity, tlie jastic 
court, the jury and evidence. 

XIII. That the said Lord Chief 
contrary to the dignity of hia plaoe, di 
merchandize of the triab of certain pi 
be tried in Statfordshire, and took 
guineas in earnest ; then sold Che saki 
other persons, refusing to retnm the sai^ 

Siineas to those from whom he had i 
em. And furthermore, before the tri 
George Wakeman ; he the said Lon 
Justice did bargain with two booksd 
150 guineas, for them to print the tria 
in c^ai^ they would not lay down the 
beforehe went into the court, he wouk 
into the court, but would go into the o 
and if the sani trial by reason of ha 
could not be finished in one day, he 
have 100 guineas more, or to that ter^ 

The ANSWER of Sir WILLIAM SCR 

knt. Lord Chief Justice of the C 
King's- Bench, to the Articles of Mi 
Gates and Mr. William Bedlow. 

I. Tothe first he saith. That tlie kx 
dencll was bailed by the Court of King'i 
in open Court, and afierwards by thi 
discharged ; with thu*, that W^ilhain 
did inuwrtune the lord Westmoreland 
the said loi*d Bnidenell dischargetl, for 
had nothing to say against him, as he sai 
lord Westmoreland. (See the Itules of 

II. To the second, be saith, That t 
omitting or mlsropeatiug the evideno 
George Waken lau's Trial, it ih a re 
upon the whole court to suppose it tri 
that they should let it pass. But he sai 
1^1 r. Gates being a:fke<i at that trial, whi 
not cliHrge sir («eorge Wakeman at the 
table with a letter under his uwa hand a 
ing the death of the king ? He am 
He did not know but that he did : to v 
Hns replied. It is plain he did not ; lor tl 
council would have committed him. To 
Mr. Gates replied, that that council woul 
mlt nobody for tlie plot ; which mi^hl 
cause of* the misdemeanor of frowning 
articles mentioned. 

III. To the third, he saith, he doth 
member that ever he expressed much oi 
ing their credit beibre their trial ; but thi 
were some paisagesat that trial whid 



rTATE TRIALS, 32 Charles II. l6SO.^Lord Chief Justice Scroggt. 174} 



■t caoK of doubt : which he h<^»efi 
i do, wtthoot making it aa article of 



nd V. To the fourth and fifth, he saith 
ncnons in the articles mentioned, were 
A by lum for publishing several libel- 
■cumUIouii papers, whicn were proved 
bem upon oath : which commitments, 
a Fenie-Covert aluo, notwithstandincf 
m and Mr. Bedlow's skill, were accord- 
V : though there is no law for tliese 
o calliucto account for judicial acts 

€>cher men. 

a the sixth, which is an insolent scan- 
ftrreth himself to the testimony of that 
in cif quality, whoever he be. 
To the fsevenUi, he saith, that the per- 
his article weie bailed and discharged 
onrt, where the Attorn^ -General was 
cd ; bat indeed Mr. Oates and Mr. 

1 consent was not asked. 

To the eighth, he saith, he conceives 
Mt obliged to do all the business that 
if the peace may do ; and though with- 
iflence he mignt have fnven such an 
IS is meotiooM, yet he did not, but a 
A' his did. 

I'd the ninth, he saith, That when the 
IS tried, he told the jury the matter was 
id so did the rest of tkc court ; upon 
le went away, without any compli- 
Mrl Oates, to try causes in London. 
9 the tenth, he saith. That Osbom made 
»aflMavit8 before him: the substance 
ras, that one Bowring, a servant to Mr. 
od said, that he hail heard Mr. Oates 
t the kingdom of En^^land woidd never 
f iBtfl it became eiectne, and the kings 
^ ike people. The other affidavit was 
■ «ii sent to him by an order of coun- 
e aandned ; wherein ani<»ngst oilier 
he swears, that though at tlie trinl of 
■d Lane, it was asked where Osl)orn 
I Mr. Gates's counsel answered, tliat he 
1 ; yet Osbom swears, that lie at that 
s at liis father's house in the country, 
I Mr, Oates knew it ; that he took liis 
him the day before he went, and told 
he went, and saw a letter wrote by Mr. 
I his father to send for him. Notwitli- 
^ it was carried at the trial, as if he had 
d no man knew whither ; so that tlie 
which the article chargeth me for [kt- 
ID he maile, was not sworn before nie. 
Bk aaith, it is UKHre to be wondered how 
IH sbonkl dare to chargi* that as an ar- 
•nneanor, which ^"as said in the 
je, anil yet repeated falser too. 
at Slonmouth assizes he <lid tell 
r, that he was more unsatisfied about 
■dHm's Iriul tlian all the rest ; and the 
Cr.tfaat he was drcflibly informed since 
■t Mr. Laiighfim's* study was so si- 
ll he that wfi&ed iu his chamber could 
^isngbam write in liis study : which 
low^scvideDoe. 
t _ .1 f«ith, the matter coBplaiaed of is 



a mere contract with other men, of which he 
thinks himself not bound to give Mr. Oates and 
Mr. Bedlow any other ac^count, but that by the 
taking of tiienty guineas he lost forty ; and that 
his backwardness to go into the court at Wake- 
man's trial, makes it look as if he had not had 
ten thousand pounds to tavour Wakeman in big 
trial. 

If these Articles shall appear to your majesty 
to be frivolous, or scandalous, or not true ; 1 
humbly pray your majesty's just resentment 
thereon, in honour to your coiuls and govern- 
ment. And that such an unknown attcnipt may 
not go unpunished ; that the promoters may be 
letl to be proceeded Against according to law. 

Tlie Articles of 3fr. Titus Oates, and Mr. 
William Bedlow, against the Lord Chief Justice 
Scroggs, were h^rd this 21st of January; 
1679, before the Ring and Council ; and u|H>n 
the hearing of both sides, Mr. Oates and Cap- 
tain Beiliow are lefl to be proceetled against ac- 
cording to law. But we do not find that the 
Chief-Justice recovered any damages. 



PROCEEDINGS against Sir WILLIAM 
8CROGG8,* Knt. Lord Chief Justice op 

THE KlNG*8-BeNCII, AND OTHER JuDGES, Of 

Pablument, S2 Car. II. a. d. 1680. 
House of Commons, November 93, 1680. 

Lord Russel. *• There are some persons at 
the door, who can give you an account of the 
illegal proceedings of my Lord Chief Justice 
Scroggs, in discharging the Grand Jury of 
Middlesex.' — 

Whereupon, several of the Grand Jury were 
called iu, and some other persons, who gave 
an Account of the carriage of that matter, as 
will !>« at larc:e recited in the Articles against 
the Lord Chief Justice Scroggs. 

Sir William Jonet.f Sir, The preservation of 

* See what Burnet says of Scroggs, ante^ 
vol. 6, p. 1425, and Roger North's character of 
him in the Note at the beginning of this Case. 

f Burnet, after mentioning that he obtained 
by means of his " Memoirs of the Dukes of 
Hamilton," the acqnaintance and friendship of 
sir William Jones, then Attorney General, pro- 
ctiCfls, ** He was raised to'uiat high post 
merely by merit, and by his being thought the 
greatest man of the law : for, as he was no 
flatterer, hut a man of a morose iempcnr, so he 
was against all the measures that they took at 
Court. Thev were weary of him, and were 
raising sir John King to vie with him : but he 
died ill his rise, which indeeil went on very 
quick. Jones was an honest, and wise man. 
lie had a roughness in his deportment, that 
was very disagreeable : but he was a good iia«- 
tured man at bottom, and a faithful friend. He 
grew weanr of his employment, and laki i| 
down : and, tliough the Great Seri was offered 
hi|p, he would not accept of it, nor Ktiwu ta 



Sl • 



175] STATE TRIALS, 32 Cuahles II. \6B0.^Proceedhigi againni 



tlio flroTemment in general, as well ns our par- 
ticular Kufottes, have a di'piudaui.'e \\\y.m the 
niatttMT that ik now before \ uu ; in whieh there 
are so many uiiscari-ia|(v.'8 mi coin plicated, as 

husiniss, The ({uickness of his thoughts car- 
ried his vie\^s far. And the Kouniess of his 
temiHT made him too apt both to suspect and to 
despise most of those that came to him." 

Aitcrwanls, the bi^^hop sjK^akin^ of the dis- 
mission of lont Danby^s (larty and the intro- 
duction of Essex to tfie treasury in 1679, says, 
*^ No |)art of the i-liaiiire that was then made 
was more acceptable th:ui that of the judges. 
For lord Daiiby had brought in some sad crea- 
tures to those 'impi»rtant |M>sts, and Jones had 
the new rootlellhi*;; of the Leuch ; and he put 
in ^ery worthy men in tlie room of those ii^iio- 
raut judges that wt*re now dismissed.'* As to 
this, it maybe obstrr\id. that if sir William 
Joiit*s pissi'vMnl the pouer W completely new 
modelling tlic Bench, he appcais to have eiu- 
pkiyetl it u ith inore moderation than miprht l>e 
expected frum a man oi' such a tt*in}K'r as 
Uumct has di-scribcd sir William Jonis lo 
ha^ e b<m. Of his zeal and acti\ ity nsfainst 
loni Staifurd, priK>ls are to U> seen in thi Tri::l 
of that lortl. and in the l\i;-liaineiitary History . 
He Mas out' of tlK- luo^t strenuous and peiii- 
aacious supjHM-ti rs of the LS'dl fur t xi-lcdintf 
the duke of York. StH:* tlie I'uriiaitK-utary 
History. See, too, 1 tiurui't's Own Times, 
■«k'», 40o. 

Sir \\ iliiain Teni(>le. uiciitiouiiiir ^ir William 
Jom> fnterini: itjii>a the Bill of L\elu>iun. bo 
abruptl\ and m> desivratih as hv did, a-lds, 
" Ami ihi» per^ui u;i%i:isf the name i-f thi- 
preaii-si lawyer i}\' Kncliuui and cvMnmi.*nlv of 
a *cr\ vise uutu, iH-xidiN this of a wry ricli. 
and «tf a ^^ar^ or rather liiiiorous naiun.*, inaite 
iR'xiple sreiHT-alK cuiichhle that the ihliu:^ \ia5 
t.\Ttaiii an«l skfu'e. ttud would at ia<»t be ^•.fiittt^ 
on all parts. ^«luto«T eoumefLiine W(\^- Uiiuk 
ai i*»nsn." \iid Swifi hx»i in^Ttctl in h:s V;i- 
)kiid;\ Ti< ihc thirtl l*;ui i.f Ttiiii-le's 3Uiin»iPs 
th» f.»lu«i*iMs; \i'iy ci*. inr.s An ■»•■!■ »te. ^.hirh. 
ill h:s pn-nuv, li* VJX"!, Ti luplt- l'.»'.ii tian : •• Sir 
\\ tl!i Jill .1 •■!»<■< \iu<» re^iuud \>uc of tiie Ik's! 
s|»^':.ke'.> 'v.\ \\.c W i.Nf. ^'.\y\ u.:.N xrry /c;U^»ii> 
iii ri> rt^lcii\«'iirs I'll- •souTi'tif:'^ iht \\i\\ i>f 
K \i" Ills • •« . Ill- « a» a ; K rs. M of jjnreat | '^rt \ 
jp.d t irTiiv . an;! \xa^ i: z iv.t^t:; a:. a.'iLVtiiui to >a- 
\* ■.lli.iiu 'IVn:!''.' , w.i* M- ■} l» SeV hslii •-U1- 
^'i. \«»' in ilif iifi.^irv "1 s.» uiiaivcptattW a 
r.v>.vio^' T'l.Ki *-f . I .i:- :••-•% -;:h. 1c»M. a::-jiiM 
li:-' K\ 1. *•. ■! 1»::." i«« lii." Ut'ii'"*'; :!:»• suH- 
»s^:.t' «: '* ' :•! ill >.« ^- ;he a.;;;i- r i» i»«n ii 
«^> V'^ :'. : • ; ■ .i:**'::' ht \*a» vM .ii.«? 
r\,,H. X- :• '\ir.r..i •.!• i».. vmi. But y-u. 
•>ji'i !: . '^* ■' ..i .1.- r'»t\»'»il.tv I ' ,.■ i»» Me tlu 

• r-i* •• ><:,•.-:. \"U 'ij^r iK»» L'U»»i^hi us in.>m 

• i ■ ' ■■ 

• ;.i K • 

>ir ^^ ■ 'T2 J-'T**? U iTen^rally rr^Hitcd if 
faA«e bivu iL«- utat-ri^r' [lie - JuAtml Mu^r!4 
Yxvik-aLvia •.4''tnc PrxvptLopi •jt' tikr l«o hM 

fMiaBucflV tfi Kjif Chftikt iIm 



there ariseth some difficulty bow to i 
them. I cannot but observe, how the 
mation is here ai^ain mentioned ; by wl 
may concUiile tliere lieth a fj^reat weigli 

[4 Cobb. Pari. Hist. Appendix, No. W 
tchard 1008 ; 3 Kenn. 399 ; 1st cd 
foke seems not to think it ceitain 
William wrote it, but yet to admit the 
re]>iitation that he did. Burnet says, ' 
at tirst petuied by Sidney ; but a new 
was luaile by Soiners and corrected by 
with which' pretty nearly agrees (^k 
account that it %«as llrst drawn up b\ 
m»on Sidney, tlicn iniprorcd hy lord* 
and XasA of 'all corrected by the very* 
sir William Jones. 

Ro^'r North, whose lan^^uage is in 
sufficiently un&|tarin^ of those whom 
liked, and* M ho «lisliked sir WiUiain Jo 
only for his political principles and com 
tor his prole.isi«»nal liralry with sir 
North ; nevertheless asenbes to hi] 
merit. '' 1 am persuaded," says he, 
beiiiji; ill place, he was very weary of 
pnxwcutions, as lie Mas afterwards • 
amons;^ the heads ot a faction a^nst tl 
iu \khich he had sened : the former 
noxious to uneasy reflections, that, 
attlor he exceedeJ, innocent blood mi; 
the rear of liim ; and the other touchc 
pututiun, as not eitasLsteut with the 
<»f a servant, who thou<i^h never so 
should not piibllcly riy in his quondam 
face, .ill w hich niatioi-s must ur-«nl< U» 
l.y one of Ins ikii.'I ration and iuii^rui 
who x.asiio ill man ai the bt»ttt>iii. tho 
iip.l'jiiiy misiiakeii in his eonduct. Am 
U'Jievt, that. uU riioi);; \^^. aimeil at s 
poM in the law. thin till, d bv itie b 
iu^'ti'V Notih, and dirtuted all his . 
waid> iu jir.»fK»<iui: t«» hiiiiM-f. in j 

liiat. to ffilA|>JSS ii:> ripil and Ff-tTr 

miii:: bin he- this d;s3])|i.iiiTei1 aiid 
cr*-,*.-;*:!'! iht- uiu'-.LMiios^ uj h:«i ir.l'nl, g 
.i>thc prorTtrs. :. ■ '.lad muu- ;u^ arils 
X i«.}*'r.t .111.1 II TV iTiilar : uU u ni: "n |„ 
ii«>'U' iM r^-^' lvt iif:ir!\ rHji.-t- I ha* 
Aiurlhi' Ovic.-ii .Mr'.-j'iiCi,!. Iv ^ i,i q. 
iiiM-'h ;.".»r'»aii. Hi ijuu,! >i,a;t';l.u. v. 
unh-.jiij.i: ^- j-..-?r!y w, :^, w ,.!.» rj.»i 
come i..i«iilu r- i.: '..in re iit- w.i*. 
>■»:■■• v.ri\'t\ a... v.n:- wo.'i ii.tat. 
ri..i- 1 r ■ £ •« .k.- «» a »i .1 f.ji-ii:.^ »!•: a,iui 
j«. : o' •■!'. . - V. ..^. lie ;i.;.t i i;p"t.it 1 

^i'. it.» .■■»'.t ;. Iii-: 1.% ■»! I . lii.viflit'v j 

.-"* S»n' ^... . ^. 1 ... r *^.-,^ ^ ,\ t 
:.ir u . . r-. ^-. -.1 k:p, CI 

■••■■■ • » -I* ; . 1 - 'if knv\ 






« 

c-.? ■ - - 

I ''-■ -4.'.; . • j» .i ,■..<:?, 'v.t » 

1 ■'■•■\.tM ti -,» . iiin(\- »;■► '..# r»'a> ter 
lU f> h"ii*» la li".ik:ni;ruini'<!irf . «lMi 



HATE TRIALS, 52 Charlbs II. l6SO.^Lord Ckk/JuHice Scraggi. [175 

they should have known, that though a Pro- 
ehuuation might be of great use, to intimate 
the observation of a law ; yet k had never bcei» 
used instead of a law. But yet I do not 
admire so much at this, as I do at the dis- 
charge of the Crand-Jur}', before th^ had 
finished their presentments. Tt tends so rauclr 
to the subversion of tlip •.'stabiished htws of 
this land, that I cluix* pronounce that all the 
laws you liuve ah-eadv, and all that you can 
make, will signify uottiing against any great 
man, unless vou can remedy it tor tlic futur*". 
I observe, tfierc were tuo reasons why thi» 
Grand-^ury were so extrajudicially discharged ; 
one, because tliey would otherwise have pre- 
sent!^ tlic duke* of York for a Papist ;• the 



tifjtA to petition by means thereof; 
the best way to reuiove it is, to find 
Imen and contrivefs of that Procla- 
1 onier to proceed against them ac- 
» their deserts. Without which, what 
f done in ■■fifing the right of peti- 
nil remain with some doubt ; and 
: advised the proclaiming to the ^eo- 
it b seditious to petition the lung, 
lat chvrtiseinent they deserve. And 
1 humbly conceive, yon will do well 
r of it as soon as jon can. It is not 
:hai the iVocbmation shall be made 
h country gentlemen, to get abhor- 
titioning*; seeing the Judges thcm- 
'e made use «if it to that purpose : 

I oonsidt of the common aifair ; wlie- 
p or aliiT the Rye discovery, I cannot 
•ilher way, it most sit hard upon sir 
ones's spirits, who, being a lawyer, 
mill, in the general, no bad man, w as 
his work the formal wa^ , and hated 
Ho that knouing the horrid consc- 
od hazards of that Plot, which could 
ct to hiiu, tlie thoughts of it wt-rc a 
I hifl mind. And it is said an unoircd 
lim a great cold ; under whi<'h iii- 
ivin? lead at his heart, nature wp.nted 
aster the distemper ; so it turned to 
at icvcr and earned liim off. 
as a fierson of a very clear under- 
and (if possible) clearer expressiuii ; 
e was assisted with an extraurdicar}' 
ihad of both, as also of his own ge- 
th, for that was his foible. He ivas 
proud, and impatient of competition, 
• more of btiLg lett beliind, as it was 
c lo he in the cfiurse of his prefcr- 
mHjv he missed of his desired post, 
partly occasioned a sort of resttess- 
cfa made him commit several gross 
the main cliances of his tife. His feU- 
De%'pr to be disturbed in speaking, nor, 
mrlience or emergence, put by the 
od connection of his thoi^hts ; but 
lib a constanc3% steadiness, and fleli- 
admirable in his way ; so tliat, in 
as counsel, one might mistake him 
3<!jp. He affected somewhat of the 
rase ot hi* own country, which was 
crchirc; as, to instance in a word, 
isteail of Although, as we pronounce, 
tt no di«i<Ha!itage, but rather set him 
irtudiedthe (aw in Gray's Inn, ami 
t IB the Kinfr's-bench practice. He 
dn general learning, as history and 
r,aad, as great men usually have their 
>hli was to |irofcsH of that sort more 
l^pd to hiui. And accordmgly he 
gglpany, wlio were, for the most 
■■^ nich as were most eminent in his 
LiUqInii, ^c. and I dare say they 
M^B hb company, than he in theim. 
Ipikdbisfelicitifla; his infelici^ was 
^I'lniaidB the anticourl, or rather 
iV|M^ I umI conse^pMiilly mofX be 
VQl, 



a fa^ ourer of noucoiiforiiiily ; for opposites to 
goi-emnuiit, of all kinds, sioni to make but one 
(HU-ty. Whatever his thoughts were, it is cer- 
tain this course was wholly out of the way of 
his aims;. He had anutbei* great disadvantage, 
wliich w as timidity ; he could not supiHirt liim- 
selt under any apprehension of daiicfcr. Once, 
bein£^at his house at Hautpstead, about the be- 
ginning Ui'Oatc's's disro^eiTf whether for n*al 
(tr nirccted fear hf \i\\{:\s beil, but it is critiu'n he 
sent n:j cxpivss lo his hous*^ in London, to have 
all his hillL'ts i-eiiioved out («f his collai's into his 
back %('ir(l, lest tlie jiapists, with fireballs 
thrown in, shoi:M fot his Louse on fire. And, 
as he \^us apt to bo dejected upon melancholy 
r<:ric*ctii>ns, s;>, on the other side, he wa*: coni- 
itionly elated and triuinpliant when he had 
tiiirer pr4)sj>ects. But his greatest misfortune 
was his miNlukeu i>olitii*8 ; for he thought the 
croivn must needs, at Ic^ngth, truckle to the 
House of Commons : but this error being 
common to the whole faction with whom he 
conversed, it is no wonder it infected him.*' 

Tlie Examcn contains a considerable number 
of anecdotes respiting su* William Jones. 

Dryden, in allusion, 1 conjecture to the Bill 
of Exclusion, describes him m < Absalom and 
Achitophel,' under the character of 

** Bull-faced Jonas who coidd statutes draw 

To mean rebellion and make treason law." 

* In what Macphcrson calls the life of King 
James tlic Second, written by himself, (see tlie 
Introduction to lord ClariHidou's Case, vol. 6, 
p. 291, of this Collection), the following jpas- 
sages occur resjiecting the l^«sentment or the 
duke of York: '< January, 1681, on Oates'a 
affidavit that he had seen the duke of York at 
mass, and rec%*ive the sacrament after the rites 
of the Churcli of Rome, the Grand-jury, ailter 
U'ing discharged at Hidca'a-hall, were sent for 
hy the Justices of the Old Bttiky, and prpsented 
hiin for Hecusancy^ wliich allowed a pretence 
for the duke to appear afler Plroclamation, as 
the duke of Norfolk and others had done. But 
thb was neither sale nor practicable, so was 
removed by Certiorari to the Kin^'s-bench, 
and, if necessary, by a NoU Protequi. March, 
1681, Arguments by Smith, a lawyer, against 

N 



179] STATE TRIALS, 3-2 Ctt ABLES II. l6S0i— IV«cccAift agiriait 



[II 



odier, hecMXue they iirRscnteii a IVtitioa to be 
deiiyered to the tunif. Hot the sitting of the 
parikoient ; wliich tfK^y 8aid it was not their 
Mianefls to deliTer. Tfiongh I cannot but ob- 
sen e, how, upon other occasiims, tliev did re- 
ceire petitioys, and deh^ercd them to the king^ ; 
and afl the difference was, that thoae netitioiis 
CO delivered, woe against sittings of parlia- 
menti. The truth is, I cannot miirfa condemn 
them fiv it ; for if thev were guihy of such 
crimes as the witnesses Lstc this day given you 
information of, I think they had no nason to 
further petitions for the sitting of a parftianient. 
But, Sir, this business will need a hirtber infor- 



removing the dufce of York's Presentment by 
Ceriiotm, The duke's counsel not prepared 
to answer a ttiing ne«er yet disputed, so pre- 
vailed with the court to adjouni till the answer 
could be framed, which provini; satisfactory, 
the Certimwri was granled." Collins, in lua 
pDeracc, calk the instrument an indictment of 
the duke of York for not oominf|^ to church, 
which was presented to the Grand-jury of Mid- 
dlesex, on June 16, 1680. 

In the volume of State Tracts, wliich was 
poUishod ui 1689, is the foDowing artide : 

Reasons for the Indictment of the Duke of 
York, presented to the Grand- Jury of 
MkUksex, Saturday, June 26, 1660. By 
the persons hereunder named. 

f . Brcaiiwe the 9oth Car. 2, when an act 
waa made to thnnv Popish Remsants ont of all 
ofiioes and places of tni<Et, the duke of York did 
kiy down several great offices and placet (as 
km high admiral of England, apeneralissinio of 
all his majesty's forces, both by land and sea ; 
iro^'emor of the Cinque Ports, and divers otherH) 
thereby to avoid the puiushment of that kw 
against Pi^sli. 

S. SOth Car. 2. When an act was made 
to disable Plipists from ^tling in either House 
af PMiamont ; there was a proviso inserted in 
thalact, Thnt it shouM mit extend to the duke 
of Todk. On purpose to save his right of sit- 
ting m the Lords House; thovghlM refuses 
to lake those oaths which Pkoteitant peers 
oaghtindo. 

3. That his ni^y in hbiipeecb, Hatch 6, 
the 3l8t y«ar of hn reign, dott give for • ran- 
aon to the pariiament, why he sent hit hiothcr 
«ut of Engkind ; because he would leave no 
mm room to sav, that he had not reni6«'ed all 
cause which might mfloence him to Popish 



motion; and ihereforo I honWy |f«y it M 
be referred to a ooaumHee. 

Sir Hemry CapeL lUs mmar » sT \ 
gveafeesi monmut. We aie under the secad 
of partiamenta for redroMig our giie » ep e 
and another oni of pariiMaee^ that ika k 
have its oourae^ thai the jodgea ehiiiuit i 
the law. I obaerve thai theaa judgii i 
grown omnipotent. ^ They have done ihi 
things which tbey shonld hnve left ondoe 
This is ver^- fine, that judgpta, w^ must 
upon the Bench, aMHt he dropped at Wki 
hall, before they cone to WeatnSneter-hd 
and I know what law vie nuMt kavey 



. f-J^ *«« *Mivc been divers letters read 
m both Howes of Pteliament, and at the Sc- 
cret Co niBritieca of boA Houses from several 
»*«»»Md othcn ai Rome ; and also from 
•*°*'^'f^j»»Kope and egento of the Pope, 
■Brt^ foreign parts, which do apparently 
^ew^ great conespendenries between the 

gg" ly*^ *n* ^^ P^- And how the 
j^ggee nM not eboaae but weep for joy at the 
«■"» •flme of tbe duke's kfteie, and what 



great satKfoction it waa to the Poi>e« to hi 
the duke was advanced to the Catholic lefigii 
Thai the Pope has granted Bmov'b to i 
duke, sent him beads, ample indiilgenoes, w 
much more te this nurpose. 

5. That the whoiB House of CemmoiiB hi 
declared him to be a Papist in their Votes, 8| 
dav Ipril 6, 1679. ' Resolved, utm. am, 11 

the duke of York's being a papist, and < 
hopes of his coming such to the erown, 1 
given the greatest countenance and enei 
ragement to the present conspiracy andt 
' signs of the papists against the King and p 

* testant rriigion.' What this Conspin 

and Design is, will appear by a Declaration mi 
to both Houses 'jf Paruament, Blaieh 
' Resnlwd, neM, an. by the Lorda Sjpnrit 
' and Temporal, and Commons in pa"v«" 

* assembled ; tliat they do declare, that tl 
' are tullv satisfied, by the proofo they h 

* heard, there now is, ami for divers years 1 

* past hath .been a horriil and treasonable ] 

* and conspiracy contrived and carried on 

* tlKkie of the po|Hsh religion, for tlie murder 

* of his maiestv's sacred person, and for s 
' vertuig the iroteatant Religion, and the ; 

* cienl well established government of 1 

* realm.' 

6. TbalbesideBallthisproof, and much m 
to this purpose, it is most notorious and evidi 

! lie hath for many vears alMcuted himself fi 
Protestant Churcnes during religious w 
ship. 

These are the Reasons why we behevc 
ihihe of York to be a papist. 

Huntington, Shatbiburv, Gray of Wi 
L. Rnssel, L. Cavendish, L. Branilon, Sb 1 
vrard Hui^rford, kt. of the hath ; Sir H 
Cahrerly, Tho. Thyn, esq. \\'in. Forrester, i 
John lirenchard, esq, Tho. Wharton, Sir HV 
Coopo*, hart. Sir Gilbert Gerrard, hart. 
Scroop How. 

The Jury was sent for up by the coor 
King's Bench, whilst they were on this Indi 
ment, and dismist, so that nothing was fiut 
done upon it, saWng that the Jury received 
presentment. And by the disniission of 
Jury, a very great number of the indietUM 
weredischaiirged. A thing scarcely to he] 
rallded, and of* very ili consequence, not oi 

! to many private pcrsoRs but chieiBy to • 

I public. * 




7^ 




111 ] STATE TIHALB^ 32 Ch ablks II. 1(80.— £ori Chief Jmike Scraggs. [ 1 82 

those you hive aUrMuly, at of those you are 
DOW making, we shall spend our time to lit- 
tle purpose. 

Mr. Saeheverel. Sir, the husiness of tliis 
debate is a great instance of our sick and lan- 
guishing condition. As our ships, forts, and 
castles, are for securing us fttnn the danger of 
our enemies from abroad, so our laws from 
our enemies at 4iome ; and if committed to 
such parsons as will tuni their stroi^h upon 
ns, are equally dangerous. 8ir, we all know, 
how the government of Hcotland hath been 
quite altered since his migesly's lUistoration, 
by some laws nuide there ; pray let us have a 
care that ours be not altered, by the corrupt 
proceedings of judses, lest we be reducMl to 
the same weak condition of defi»fliiig oimtelves 
against popery and arbitrary govemmcsit here, 
that they are there. If judges can thus {ire- 
vent the penalties of the law, by discharging 
grand juries before they have made their pre« 
sentttienta, and can mala; laws by their rules 
of court, the gnvenunent may soon be subvert- 
ed ; and thei^mre it is high time for this House 
to speak with thmie gentlemen. In former 
times several judopes have been impeached, 
and hanged too, for krss crimes than these; 
and the reason was because they had broke the 
king'k oath as wdl as theur own. If what hath 
been said of some of these judges be fully prov- 
ed^ they shall not want my vote to inflict on 
them the same chastisement. The truth is. 
Sir, I know not how the ill consequences we 
justly fear fkwn judges can be prevented, as 
long as they are made durante bene'vlucito^ and 
have such dependencies as they nave. But 
tliis must be a woricof time : in order to remedy 
oar present grievances, let us pass a vote upon 
this business of diseliargli^ grand juries; 
and that it may be penned as the case de- 
serves. 

Mr. H, Sidney. Sir, I would beg leave to 
observe to you, necause I think it may be ne- 
cessary to to be conildered by your comitifttee 
what an opinion was given not long since by 
some of these judra about printing ; whicn 
was, that printing of nan's mignt be pnriiibited 
by law ; nnd aoeordingly a proclamation issued 
out. I will not take on me to censure the opi- 
nion as illegal, but leave it to your forther con- 
sideratSon. • But I remember there was a con- 
sultation held by the judges a little before ; snd 
they gave their opinion, that they knew not of 
any way to prevent printing by law ; because 
the act for that purpose was expired. Upon 
which, some judges were put out, and new 
ones put in ; and then this other opinion was 
given. These things are worthy of a serious 
examination. For if treasurers may raise 
money by shutting up the Exchequer, borrow- 
ing of the bankers, or retrenchments ; and the 
ju^^ make new laws by an ill constniMion, 
or an ill execution of tlie old ones : I eonclude, 
that parliaments will soon be found useless ; 
and tne liberty of^the people an Inconvenience 
to the g o vemme nt . And therefore, i think, 
Sir, you have been well moved to endeavoor to 



lileiHlniaiins ftom those that advised the 

fradanliDaagninat petitioning. Seethecon- 

MMejiniiMlnaiMidiaatoMiy, that the 

ji4^HMvtui tlingriefiBceBof the country, 

w he j a igM ■lOitmdwss them,and we sh heire 

akcf AH miadcmeanors, and what 

in Hw nliuu> Uto jndm must rectify. 

m pmoBBtien, tGit they must an- 

it If tftMbedutteinWesldfnMer-hall, 

tfmin jariea in the oomtiT represent 

IhntktmisB? Suppotethere should 

!at of murdering a man's lather 

, 8cc. and the jodges take upon them 

fe the jury I this stops all justk», and 

Ibe c— Bi ytnte wiH be, men will murder us, 

M we kill tiiem acnin. I move, therefore, 

teywi will proceed to punish tlie uOender in 

dmmat matter, and remedy the miscaniage 

NT me ta ng t o come. . 

Sr F. fFtimistfton. Sir, I think we are 

to the old tunes agun, when the judges 

did thij liad a rule of ffovemment, as 

ssamleoflaw; and that uiey have acted 

^wwdihgiy. If th^ did never read Magna 

Chii1a,Itlmdttheyarenotfittobehidffes; if 

itoy hid read Magna Chairta, ind do thus so 

onbwT, th^ deserve a severe chastisement. 

Tiis eniigij grand juries, of purpose to dis- 

ippiBM thnn of making their p r cicntm ents, is 

l»* H fi i i i Ae subject of the greatest benefit 

aid ssemrity the law hath provided for them. 

If the nrigci, instead of acting by kw, shall 

te ielH hj their own ambition ; and endea- 

wr to get promotions, rather by wttrshipphig 

^ tiling son, than by doing justice, Aus na- 

lin vfll aoon be re d uced to a miseraUe condi- 

te. jSi^ppooe that after the discharge of this 

gnai jpry, some person had offered to present 

MVB nundii, treason, or other capital crime, 

ftrntsf tlie ^rand jmy there would have 

MOiaUinL of justice. As fouhs oominitted 

^JHpi are of more dai^;erou8 consequence 

« ntnaa to the public ; so there do not want 

of aeyerer chastisements for them, 

ftrat he nk I humbly move you, first, to 

a yule npoB this businesB, oT^ discharging 

gnnd jniea; and then to appoint a oonunitlee 

lionne the nrascartiages of the judges in 

Wsitannoler-haUy and to report the same with 

wiwcfn to you. 

CiL TUhm. Sir. as R hath been obseryed, 

te ttis bnaiBeaB hath some reference to the 

PMhunliaD ; ao I believe, there is somednng 

If the pbt in it too. And, therefinre I think 

iftUs pbt does not go on, it will have the 

yt lack that ever ^ had ; seeing the 

||%BB, as wcQ as most other persons in public 

MHi have given it as mudi assistance as 

V9teaU. But whereas some have spdken 

■if tficn judges, I desire to speak well of 

■tltae Ifamg : I am confident they have 

*'Sirad thonselvea grateful to their be- 

■»■ — ; for I do believe, that some of them 

' ^yp iefaiedto Aeir places of purpose, be- 

>i«e thfev sfaouM do what tliey have done. 

lAWa gf tminilm are but dead letters ; un- 

KMymi eaaaeeare theesecatkw» as wcU of 



I S3] STAT£ TRIALS, 32 ChAbLfs U. i6SO^Procuding$ ^mMti 



pass your censure on sonie of these illegal pro- 
ceedings by a vote. 

Mr. Powle. Sir, in the front of Magfna Charta 
It is said, ^ nuUi negabimns, nuili differemus 
jiistitiam ;' wc will deter or deny justice to no 
tmm : to this the kin^ is sworn, and with this the 
judijres are entrust^ bv their oaths. I admire 
what they can say for tnamselvcs ; if they ha?e 
not read this law, they are net fit to sit upon 
the bench : and if tliey have, I had almost said 
they deserve to lose their heeds. — The state of 
this poor nation is to be deplored, that in almost 
alln^res, thejudfires, wlio ought lobe prcscr- 



was eomndering' that matter, bol th^ 
interim made their private opinioa to 
to supersede the judgment of tbb Honm 
have dischaiged Cvnmd-Jvries ea pm 
quell tbehr prcsentmenta, and abeltor gr 
miiudslrom justice; and when jurieani 
sented their opinion for the Mttmgof tl 
l»ment,they have in disdain tlwofinl 
their feet, and told them they vonld bei 
spngers tocanry such petitiona; and y 
few da^^'s after, hare cnconnged all thai 
6|Mt their venom against the govemmni 
have served an ignorant and ariiitai 
tion,.and been tlic messengersof dblMRr 



vers of the laws, have endeavoured to destroy 

thenb: andthatto please a court- faction, they I the king. What we have now to 4i 
hare by treachery attempted to hrcek the bon<f8 | load thcni with shame, who biddefiano 
&.^undrr of Macna Cliaita, the great treasury > law : they are g^lty c4' Crimea aganrt 



of our peace. It was no sooner passed, but a 
chief justice (Hubert de Burg) in that day, per- 
suades the king he was not boiuid by it ; be- 
cause he was under age when it waspassfd.* But 
this sort of insolence the next parliament re- 



against the king, agmnst their knowkd 
ax^inst pofiteritv. The w Iwle frame d 
doth knidhr and daily pclitioo to Godtb 
tor ; and kings, hke God, may be addi 
in like manner, by petition, nut oommnn 



lieiilefl, to the ruin of the pernicious chief jus- like^vise knew it was lawi'ul to petition 



tice. In the tiine of ftd. 2, an unthinking dis- 
solute jprince, there were juds^s Utat did insi- 
nuate uito the king, that the parhauient were 
onlv his creatures, and dependecl on his will, 
anu not on the fumlaiueutal constitutions of the 
land ; which treacherous advice proved the 
ruin of the king, and for which alt those evil 
instruments were brought to justice. f In liis 
late niajesi^'*s tiine, his misfoi tunes were occa- 
sioned chiefly by corruptions of the long robe ; 
his iudges, by an extra -judicial opinion, gave 



ranee can be no |dea, and their knowlei 
gravatea their cnmes ; the children nnl 
boundto curse such proceedings, for h 
lietitioning, but pariiameuts tbey abhorr 
atheist pleads against a God, not that 
believes a deity, but would have it so. 1 
and Belknap were judges too ; their I 
gave them honour, but their viUainic 
their exit by a rope. The end of my 
therefore is, that we may address wa 
our prince against theni : let us settle 
mittee to enquire into lUt-W crimes, and n 



the king po^ver to raise money, upon any ex- 

traonliiiaiy occasion, without' |Kiriiamcnt ; and | doinvf justice upoo thrm that ha\c pervi 
made tliekingjuclg«*«»fsucli occasions ; charity , Ictuii puige the tbuutaiii, and the strea 
(irompts me to think they thmurht this a service issue pure. 

!^v^i.I?*^il "*"' *'l- ^'^«»°«^''««?!,'^«,"'»>; ' Then the Hous? a?re«l to the foUow 
w««kea» the ro>Til lu oiert ; apd to mdeayoiir ! .. p„j,„rt Jurv bv anv judge, l^foieSe 




the i^ontrary crtect. — The two ;;jeat pillars of 

the LWtToment, an^ iutli:n.iv:iis a-id juries ; .MauVnf^ihiTSng^ 

It IS this ffivos u. the titk' ol irec Ik™ tn-hsh- . ., ^ apnoaited to Ixs 



means to subvert the fund 
bm. 9. Hiat a coi 



H li^ > L r I ' V''?'^''"'"' '•"'?' i •• theiiidgesin \Ve>tniiiwer hall, 

!^,^T'i"i^ •''•".•:' "'"'■ """ 'J?^- '"the samo,«ith their opinion th« 
incr, and tried bv men ot tii.^ squne <N>mHiiou i.Uvv... .«• 



examine the proceed 

hall, aw 

thereon, 

. _ .. W 11 

with themselves. The tv.:> ^iifrrat and iin- 

doubttnl privilejics of tlie |kM>ple, h^ive *been 

lately in\adetl bv tiie juili{v» that now sit in 

Westminster- hall, ; th4*y have espoused procla- ! 

iiuti'ins asnun>t law; the vha^e discountenanced !_. „ •<.i_^ •* ^t 

and op^MMJetl sevmil U^ii arts, that tended to ^hc Report • of the Committee of tb 

the «ittuip of this llou:^*; t)H\v have grasped 
die legislative powvr into their' own hands, as 
iu thai uwtaiice ul' |iriutiiig; the parliament 



*• House.' 

Whereupon a committee u-as appoint 
they sal sei eral da^-s, and tluni made 
lowing Report : 



• «M Bohwd, 1 ta. i lUpia, p. 903. fol. Ed. 
•r 1T43L Smmmm jwiiiiiiy avalM Ua- 




-Vi 



■•^ 



of Commons, anpointed to exam 
Proceeding of the Jldgss, &c. 
day,llec. 23, 1680. 

This CoBunitlee being inffunned, thg 
nity-term bsl, the court of KingV-ki 



* ' 1 nppauft John Wright, 
ChinraH. to pri^ llwK ^ 
BnnliHk MM NoiMk noiHad hv 
« lif to Ike «ite «rAe HooB «r Coi 



PATE ntlALS, 32 Ch AHLES If. 1 680,— Lorrf Chief Justice Scrcggs. [ 1 86 



le gnnd-jiirjr, that senred for tlie 
Onbloii, mthe county of Mid- 
mynoMnlinaiiBer; proccededto 
ilbettme, and found by the infor- 
CMs Umfinerille, esq. foreman of 
Ti Bdwiid Proby, Henry Gerard, 
wth, goitfeinen, also of the said 
■the list of June hst, theconsta- 
If ibe ssid jury were ibiind defec- 
IRMBdng the papists as they ought, 
« were ordered by the saia jury to 
ff pmentments of tliem on the 26th 
a which day the jury met for that 
vbeo several peers of this realm, 
pcnom of honour and quality, 
OB a bill aganst James, duke of 
ttcmung to churcli : but some ex- 
■f Hken to that biU, in that it did 
I m nod doke to be a papist, some of 
■M the said persons of qnalii^ to 
Uon theroD. In the mean time, 
ibonr after they had received the 
Mot' the jury attended the court of 
^ whli a petition, which they de- 
WR to present in their name unto 
Ar die silting of this parliament. 
itlieLord Chief Justice tScroggs 
' temples, and on pretence that they 
M in court (though tuenty of tlic 
kscribad the petition), sent tor them 
raaUdispatcn them presently. The 
■ae, and their names called over, 
t^ their desire that the court would 
r Dehtion : but the chief justice 
QT had any hills ;^ They answeccd, 
Bdk! elms were drawing them 
Ipoa which, the chief-justice said, 
M make two works of one business. 
ioD being rea'i, he sakl this was no 
ir chai^, nor was tliere any act of 
liat required the court to deliver 
ry*s petitions: That there was a 
about them; and tliat itu-as not 
c court should be obliged to run on 
; and he thou^t it much, tliat 
ome with a petition to alter the 
ledaicd in the news-book. The jury 
1 it not to impose on the court, but 
eshad done) with all submission 
t; but the court refused, bidding 
turn than their petition. And 

■ other peraon presume to print 
i Oeeem. 1680. W. Wiluams, 
Ib former editions of the State 
qpoit was inserted twice, viz. in 
I without the Impeachment and 
m liMd Chief Justice Scirog]^ 
■ilM Fvliament; and again m 
A> iddition of those arUdes.— 
liiiBK of the iransaetion says, 
1^ iciMtiop that in the tor- 
li ibe crawn never wanted a 
m bench of judges to 
raHB ware mraMd uninst 
and the Kbortiei ofEiig. 



BIr. Justice Jones told thorn, they bad meddled 
with matters of state, not given them in charge, 
but presented no biUs of the mattera given in 
charge. The v answered as before, they had 
many before them, that would be ready m due 
time. NotwithrtaiMling which, the aaid jus- 
tice Jones told them, they were discharged 
from further service. But Philip Ward (the 
derk that attended the said jury) trried out, No, 
no, they have many bills before them ; ibr 
which the court understanding (as it aeems to 
this committee) a secret reason, which the dedc 
did not, reproved him, asking. If he or they were 
to give the rule there 'f The crier then tokl the 
court, they would not receive their petition ; 
the chief-justice bid him let it alone, so it was 
left there ; and the jury returned to the court- 
house, and there found several constablea with 
presentments of papists and other offenders, as 
the jury had directed them on the 3l8t before^ 
but could not now recei^-e the said present* 
nients, being discharged ; whereby much bu« 
sineas was olwtnicted, though none of the said 
intbnnants ever knew the said jury discharged 
before the last day of the term, which was not 
till fonr days after. And it further appeareth 
to the committee, by the evidences of8amuel 
Astn*, Jasper Waterhouse, and Philip Ward, 
clerks, that have long ser^ ed in the said court, 
thct they were much surprised at the said dis- 
charging of the jur}% in that it was ne\'er done 
in their memory belbre ; and the rather, be- 
cause the said Waterhouse, as secondary, con- 
stantly enters on that grand jury's paper, that 
the last day of the term is given them to return 
their verdict on, as the last day but one is given 
to the other tivo grand juries of that county, 
which entry is as lolioM-rlh : 

Trmit. S'J Car. '2. ' Juratores liabent diem 
' ad vertHiictum suum rc«ldendum usq; diem 

* Mercurii proximo jMibC trcsbeptimanassanctn 

* Triiiitatis.' Being the lost day of the term, 
and so in all the o3ier terras tlie last day is 
given ; which makes it appear to this commit- 
tee, that tliey were not in truth discharged for not 
having their presentments ready, since the court 
had given them a longer day, but only to oh* 
struct their further prM^eediugs : and it appear- 
eth by the evidence atbresaid to this committee, 
that the ibur judges of that court were uresent 
at the discharging of the said jury, and it did 
DfA appear that any of th^n did (fisseut there- 
in ; upon consideration whereof the committee 
came lo this Resolution : 

** UesoU'ed, That it is the opinion of this 
« committee, that the discharging oft* the grand 
*' jury of the hundred of CHsmlston, in the 
<* county of Middhiscx, by the court of King's 
** Bench, in Trinity term last, before the last 
*' day of the term, and before they had finished 
** their presentments, was illegal, arbitrary, 
'* and a high misdemeanor." 

This Committee proceeded also to enqmre into 
a rule of the court of King's-bench, lately made 
acainst the publishuig of a hook, called The 
Weekly PSMKet of Advice from Rome ; or, Th« 
History of P^^poy : tad Sunud Aftey, gent. 



1 67] STATE TRIALS, 3:2 CUAftLBS II. l6SO^Pro€eeiing9 wgMmi 

Examined thereupon, mfoniied this coinmittee, 
that the author of the said book, Henry Carr, 
had been informed against for the same, and 
Ind pleaded to the imormation ; but before it 
was tried, a rule was made on a motion, as he 
aupposeth, against the said book ; all the 
jndgps of that oowt fas he remembeni) being 
present, and none dissenting. The copy of 
which rule he gave in to thm oomtnittee, and 
is as folkiweth : 

* Dies Mcrcurii proxime post tres S^manas 
< sanctm Trinitatis. Anno S8 Car. 3 Bagia. 

* Ordinatum est quod liber intitulat. The Week- 

* Kr Pteket of Advice from Rome ; or, The 

* Hhstory of Popery, non ulterius imprimatur 

* vel publioetur per aliquam Personam quam- 
'ennq; Per Cur.* 

And this committee admiring that protes- 
tant judges should take offence against a book, 
whoM cTiief design was ta expose the cheats 
«nd foppery of popery, enqnined further into it, 
«nd found by the evidence of Jane Curtis, that 
the said book had been licensed for several 
months, that her husband paid for the copy, 
and entered it in the hall-book of tlie company. 
But tor all this, she could not prevail by these 
reasons, with the Lord Chief Justice Scroggs, 
to pennit it any longer; wlio said, it was a 
scandalouB libel, and against tlie king's prochi- 
mation, and ho would ruin her if ever she 
printed it any more. And soon after she 
was served with the said rule, as the au- 
thor, and other printers were; and by the 
author's evidence it apiiears, that he was 
taken and brought before the said Chief 
Justice by his warrant aliove a year since, and 
upon his owning he writ )>art ot'tbat hook, the 
Chief Justif^c called him rociie and otlier ill 
immcfi ; saying, he would fdlall the gaoU in 
England with such rogfues, and pile Uiem up 
as men do faggots ; and so committed him to 
prison, refusing sufficient bail, and saying he 
would gaol him, to put him to charges ; and 
his lordship observed his wnrd punctually 
therein, forcing him to his Habeas Corpus, 
ami then taking the same bail he refused before. 
Upon which, this committee came to this Re- 
solution : 

" Resolved, That it is the opinion of the 
*« committee, that the rule made by the court 
'* of King's- bench, in Trinity term last, againftt 
«• printing a book, called The Weekly I^u;ket 
^* of Advice from Rome, is illegal and arbi- 
«' trary." 

And the C*ommittee proceeded further, and 
upon information that a very great latitude had 
been taken of bte hy the judges, in imposing 
fines on the persons found guilty before them, 
caused a transcript of all the lines impOwd by 
the King's-bcnch since Easter term, hi the 
fiSth of Kis majesty's rei^, to be brought be- 
fore them, from the said court, 1^ Sanmel 
Astry, gent. By the jierwal of wIiiq|i. it u^ 
Beared tothis c wmuiH at, flwit 1^ •" *^ 
lheoffiBBe«, woAihelSMfti^^ 



which being an very numami» tlwo 

reftr tbemaelvea to thoae reoorAi iat 

neral, instancing aoie partjenliri . m 

TrinittPCar. S. UpoaJ.BnrirBia 

geoti on aa lafonnBtMNi btjMUUum 

ed book, called The Lgag I Mto w ut 

ed; in which iasetfortf then ward 

k* any man tldnk it stauigQ^ Ant wi 

it treason for yoa to Ht«Ml«|3too 

our laws; for if in ihm fint parik 

Richard 2, Grimes aad WeMoOi ft 

courage only were aiyodged gfikj 

treason for surrendering the phoea oi 

to their trust ; how modi mora ya 

turn renegadoes to the jieople that < 

you, and as much aa m you lie i 

not a Uttle |iitifnl casde or tmn he 

\egal defonoe the people of EoglBiid 

their lives, liberties, and properties 

Neither let the vam pentianon dri 

that no precedent can be fomid, 

English parliament hath hanged ap 

though peradventure even that moy 

ed a mistake; .for an unpreoedenti 

calls for an unprecedented pnmshaii 

if you shall be so wk^ted to do the 

rather endeavour to do, (for now tc 

longer a parliament) what gnaaa i 

dcncc you can have that none will be 

worthy to do the other, we caimo 

stand : and do faithfolly promise if ; 

worthines provdre us to it, that we 

our honest and utmost endeavours (v 

a new i>ai1iament shall be called) t 

such as may convince you of your i 

The old and iiifaUihIe obaervatMm, T 

liamcnts are the Pulse of the Pcof 

lose its esteem ; or }'0U will find, 

your presuraptkm was over-fond ; I 

it argues but a bad mind to sin, bee 

believed it shall not be nunished.' T 

ment was, that he be fined 1,000 ra 

bound to the good behaviour ftbr seve 

and his name struck out of the roll of t 

neys, without any ofience allrdged in 

vocation. And thepuUkhing the tt 

sisted only in superseftting a pococ 

this inck)6ed, to the East Indies. Wi 

he not being able to pay, (living only 

practice) he lay in pnson for three ye« 

mi^icsty gradouriy pardoned Uro, and 

mended him to be rest o red to his place 

attorney, by his warrant dited the 

December, 1679. Notwithftanding n 

has not yet obtained the nid raioratj 

the court of King'a-bench. 

Hil. S9 and 30 Car. 9. UpOB Jol 
rington of London^ gent, for ifieBkii 
words laid in Latin tons : * Qnod mi 

* beraatio de tribtia ftatibas oaonlik 

* rebdho effuritin regno^ ot non i 



teeoftiOOOL 



mUty,hM 
wevHiBn 




STATE TRIALS, 3S Chables IL l6BO.^Lord Chuf Justice Scroggs. [ l gd 




• af TaiioB, icglioiier, im vk Infbrma- 
V fffmliag a buok, called ' An Appeal 
CohSst to the City/ iettinif forth 
la : ' We iu the country have done 
m dning fer the geiierality ^food 
ui paribiBent : but it /as 
vere) they must oe 
whenever tney come 
ti€ the suhject, we 
, Mt Uamed, if the Plot takes 
m al prohahility it will, (hir 
■re Ml then to he* condeinneil, tor 
beia^ suffered to sit, occasioiiCHi 
^^Jadgmcntto pay 500/. fine, star.fl on 
^ an hour, and §five sureties Ibr the 
for three yfors. And the said 
I Ilwvis inlbnned this committee, 
krd cUefjustice Scroggs pressed the 
■ to add to this judgment* his being 
dy wlHpt ; but Mr. Justice Pemborton 
if Hp hM bands in admiration at their se- 
rthsiaiB, Mr. jMstii*e Jones pronounced 
dJfMBt afiaresaid ; and he remains yet in 
I, aaahk? to pay the said fine. 
■ ailhalandHiy wliich severity in the cases 
MHUsncd, this committee* has observed 
lid Ctoiirt hii:. not wanted in any other 
isBcxtxaordinary compassion and mercy, 
^ lhei« appeared no public reason judi- 
riBlhalrial; aa in particular : 
L 31 and 39 Car. 2. Upon Thonnas Knox, 
Wft^ on an iadietment of subornation and 
against the testimony and life of 
fiv ndomy ; and also against the 
. of Waiian Bedloe ; a fine of SOO 
hi, a yaar's imprtsonment, and to fllnd 
W the good behaviour for three years. 
Tv. Upon John Lane, for the same 
jafceoflOO marks, to stand in the 
b^AvB hour, and to be imprisoned for 

(■^M Cir. 9. Upon John Tmborough, 
K • aa IndietHient for subornation of 
|hB Angislo, teadinff to overthrow the 
rih iy a i u f of the Pfot ; the ssid Tasbo- 
#^WiBf anaed to be a person of good 
g, a lie of 100/. 
^T9f. Upon Ann Price, for the same 



y^yCir. t. Upon Natham'elTliompson 
jWihM B ad cock , on an infhrmalkm for 
prgipabfiAhiga weekly libel, called 
?! nM DoBMStie Intelligence, or. News 
kOhy Bad CountiT," and known to he 
a fine of 3/. 6s, Bd. on each 

Matthew Turner, stationer, 

for vending and publishing a 

** The Oxnpendium ;" wherein 

rthanl ifln in the late trials of the 

"fhilMi, even by some of these 

ilhvB, ii li^^ tnaigned; and 

•^ forAa kin^horriUy aspersed : 

%fc as BHnan notonoua popish 

to pay a fine 



^i^mitCtUiColkctKMi. 



of 100 marks, and is said to be out of prison 
already. 

Trill. 3S Car. 2. Ufion •*— Lovcland, on 
an indictment tor a uutorious conspiracy and 
subornation a^iiist the life and honour of the 
duke of Buckingham, for SHodoniy, a tine of 5/. 
and to stand an hour in the pillory. 

Mich. 3Q Car. 2. Upon Edward Christian, 
esq. tor the same oftence, a fine of 100 marks, 
and to stand un boiur in the pillory. And upon 
Arthur Obrian, for the same ofli^cc, a fine of 
20 marks, and to stand an hour in tlitt pillory. 

Upon consideration whereof, this Committee 
came to this Kesolution : 

" Resolved, That it is the opinion of this 
" Commtttee, that the Court ot Kiiijr's-bench 
*< (in the Imposition of Fines on Oftendcns of 
** late years) liath acted arbitrarily, ilU'g:ally, 
** and partially, favourinsr papistx, 'and persona 
** popiahly affected, and excessively oppressinf^ 
^' Ids majesty's Protestant subjects." 

AndUiis Conunittee being in1i>mied, Tliat 
several of his majesty's subjects had been com- 
mitted tor crimi-H tmilable by law, although 
then then tendered sufficient sureties, which 
were refused, only to put them to vexation and 
charse, proceeded to enquire into the same, ami 
found that not only the fore- mentioned Henry 
Carr had been so refused the common right of 
a sulject, as is aljove-said ; but that Geor^^ 
Broome, being a constable last year in Lomkm^ 
and committing some of the lonl chief-justicft 
Scroges's servants, for ^eat disonlers, accord- 
ii^ to uis duty, he was m a few days arrested 
by a tipstaff, without any London constable, 
and cairried before the said chief-justice^ by hia 
warrant, to answer for the said committing ^ 
those persons abovesaid ; but being there, was. 
accused of having spoken irreverently of the 
sakl chief-justice, and an affidavit read to hnn 
to that purpose ; and was falsely (as the ssid- 
Geoige Broome affirms) sworn against, by 
two penona that use to be conunon l»il in that 
court, and of very ill reputation. Upon which 
he was committed to tlie Ring*s-bendi, though 
he then tendered two able dtizens and com* 
nMm-oouncil-mcn of London to be his bail : 
and he was finroed to brincr his Habeas Corpus, 
to his great charge, before he came out ; wncnt 
the marshal, Mr. C-ooling, exacted 5/. <Mf hnn, 
of which he coraplainetl to the chief-justice ; 
but had no other answer, but he raHjrht ask hw 
remedy at law. But the said marshal fearing 
he should be questionnt, restored him two gm- 
neasof it. 

And further, this committee was inftirmed by 
Francis l^kh, bookseller, that Aout Michael* 
mas was twelve- month he was brought before 
the said ehief-justice, by his warrant, and 
charged by the messenger, Robert Stephens, 
Tliat he had seen some plrceh of a pamphlet^ 
called * Observations on sir Geoi^ Wakemaa'a 
« IVial,' in his shop : upon which the chief- 
justice told him, he would make him an ex- 
ample, use him like a boor in Fiance, and pila 
him and all the booksellers and printers up m 
prison like ftggvti : and so oommitled bun to 



igi] STATE TRIALS, 33Ch4RLes1L iSSQ.—PncuiimgM mgmkui [ 

the Kiotf -ft-bencfa, weam^ wad curou^ at him tkm, wbirfa «bs a;7iiaBt their firiiion nui 
ID gn^ fury. Acid ubeo be teoilered thn^ i ami tbeo adding to tfaia purpose ; * Zwn^ 
mithaoA iritJzem of LmmIod for bis bail. ^- ' ' ki up hi» frnaticuai, and Calvin built oa 
ledspnff, itDpwmznent id his cimiinstaiicfs • * blesM fotindatioo ; aiid, to speak trott 
would be bit uiter ruin ; the chief-justke re- j * his discipio are g?awiied with anch a rii 
|^«d, die citizeott looked Uke suficient per- * De» of Hiirit, thai it aaiich cwMii e M a a m 
v/ns, but be would take no hail : and so be ' tratrs to keep a strait hand over then ; 
wzi Ibreed to couie oui b}' a Habeas Coq>nft, ' now tber are resdeaBy aaoring oa with II 



«ad was afterwards infunn^nt against lor tiie '. * and notbini^ will senre them botn pariiu 



same matter, to his j^rcat chaise and vexation. 
And a while aft«r Francis (the son of the said 
Francis 8initb) was comiiiittf^ by the iai«i 
Chief-justicCf and hail refused, fur sellini^ a 
fKtro|»ldet, calhil ** A Nen - Year *s Gift tor the 
said Chief-jiiitiee,'' to a oofee-houflc ; and he 



' For my part, I know bd representative of 

* nation but the long; aD power ocnten in I 

* It is true, he does intmst it with his min 
' but he is the sole representative ; and iHI 

* he ha« uisdora enough to intrust it no i 

* in these men, who UaTp given ns aoeh 



dectntl to ihL'ni h"* noukl take no bail, for he j * examples of their wisaiom and laithfbhi 
wouki ruin thetn ;iH. And tins Committee takiiuf the said UMttcr 

Ar.<! fiQthir ii appeare*! to thi« oomnuttee, ' their consideratifin, came to thia KesohitMi 
tiiai tlic «aid cuief-justice (about October was { ** Resolreil, Src That the said expie a MW 
twelit-momh) oommittcd in like nuinncr Jane t " the cliai«^ (jfivcn bv the said baran Wa 
CunU, fthe having a hu^Mnd and chihhcn, | '* were a scandal to the R efo iM iti on, in d 
ferselKng a book, csUcd " A Satire against ; ^' gation of the ri^ts and privilq^es of pn 
Injustice ;'* which his lonLsliip called a libd \ " ments and tendmq to raise dkoord betf 
s^ptinst him : :.:id her friends trudciiiig buffi- ** his iuajc.>aT and his suhfects." 
cient b:ii : , rLii\* '^e ir::^ him to have merev upon And this Committee benig inlbrmed bv • 
her poverty and «-nndirion, he swore hy the ral printen and booksoUers, of great trouble 
mme of Gedslie sboold go to prinn, ami he vexation giren them mtjustlj-, hv one Kq 
wouU shew her no more mercy, ^an they Stephens called a messcnj^eroirdie press; 



could expert from a wolf that came to d^-voiir 
them ; and she might brin|Q^ ber Habeas Cor- 
pus, and oome out so ; which she was forced 
to do ; and after infonned against and p ro ae- 
cnted, to ber utter ruin, four or five terms after. 
In like manner it appeared to this committee, 
that alKmt tliat time also, Edward Berri', sta- 
tioner, of Gray V Inn, was committed * by the 
said chief-ju5tice, being accused of sdling 
" Tlic Observations on sir George Wakemin's 
Trial :** and thougli he tendered 1 ,000/. bail, yet 
the chief-justice said, He would take no bail, 
he should go to prison, and cooie out according 
to law. And after he, with mueh trouble and 
charge, got out b^* a Habeas Corpus he was 
forced by himself, or his attorney, to attend fi\ e 
terms before be oould be discharged, though no 
information was exhiliitnl against him in all 



that time. In consideration \vhereof, and of " be brought to their piinisliment : — ^Tbese 
others of the like nature (too tedious here to re- * to will and require you, and in his in\m 

* name to change and* comiuand3'ou, an del 
*■ of you, upuu sight hereof, to be aiding 
< as8istin«r to K«)bert Steiiliens. messenira 



late), this committee came to this resolution : 

** Resolved, That it is the opinion of this 
'* committee, that the refusing suifiritiut bail in 
<< these cases, wherein the persons committed 
** were bailable bv law, was iUej^, and a high 
" breach of the liberty' of the subject." 

And this Committee being informed of an ex- 
traordinary kind of a charge given at tlie last 
assixes at Xing^n, m the county of Surry, by 
Mr, Baron Weston, and proceeiling to e.\ • 
amine several persons tlien and there present, it 
was made ypear to this Comuiittee, by the 
tei^niony of John Cole, Ilic^hard Mayo, and 
John Pierce, gentlemen, and others, soine of 
whom put down the said baron's words in writ- 
ing, iuunediately, tliat pan of the said charge 

^ ^ 2^^?* I he iuveigiied vm- much 
■gaoisl rarri, Luther, Calvin, and ZuingUus, 
tfatm as authora of Uie Reforioa- 
4 



sai«l Stephens being exanuncd fay this Comi 
tee, by what authority he had proceeded m 
nuinuer, produced two w an a n ts under die I 
and seal of the Chief Justice Scroggs, wl 
were in h^c verba : 
* Ang/. u. Mhereas there are divers 31- 

* |MJsed pi-raens, who do daily print and puft 
' many wtliuous and tioasonable books 

* pamphlets, endeatx>unno- ;':ieribv to disi 

* the minds of his majesty's ^uWjects to sedi 
*■ and rebellion : and aL»o infamous libds, 
' fleeting upon particular pef>;ons, to the g 

* scandal of his majesty *s govejrumeDt. 

* snppressinflf whereof, his majesty hath la 
*• issued out TiLs royal prodaniation : and fbi 

* more speedy siiuprpssiug the slid sedit 
< books, libels, and |)am|ilitet8, and to the 

* that the authors and publishers thereof i 



Stepliens, messense 
' the press, in tiic seizing on all such booEs 
' pamphlets as aforesaid, as he shall be infoi 

* ed or, in any bookseller *s or printer*s diop 
' warehouses, or elsc^vaere, wnatsocver; to 
^ end they may be disposed as to law shall 

* pertain. iUso if you shall be informed of 
^ uuthors, printers, or publishers of such bo 

* or pampnlets as are abovc^mentionod, } 

* are to apprehend them, and have them hd 
< one of Lis majesty's justices of the peace 
' be proceeded against according to law. Da 

* Nov. 29, 1679. ' W, Sc&occ 
* TuR. Stepliens, messenger of the press, 

* and to all mayors, sherins, bailiffs, con^ 
' stables, and all other oncers and minis* 

* teis whom these may concern.' 



rE TRIALS, 32 Charles II. \6no.^LnrdChiffJv9fice Scroggs. [ 194/ 



Wbereas the kind's majesty bath 
out bis Proclamation tor suth 
printing and publishing unli- 
boolu, and pamphlets ci' news : 
Ing which, there are divers per- 
duly print and publish such unli- 
and pamphlets : 

therefore to will and require you, 
ijesty's name to char^ and com- 
mri erery of' you, from time to 
ill times, so often as you shall lie 
rjuired, to be aiiling and assisting 
>(ihens, messenger of the press, 
^ of all such iMMiks and pamph- 
snid, as lie shall be infonneil of, 
!Uer*s shop, or printer's shop, or 
or ehewhere wnatsoevor, to the 
y be disposed of as to law shall 
ikewise, if yon Khali be in^brinetl 
s, printers or publishers of such 
mphlets, yoM are to apprehend 
we them liefore me, or one of lii«t 
tii-es of tlie peace, to bo j>rocced- 
to law shall appt^rtaiu. DaUMl 
r of May, A. o. 1680.* 

* W. ScROGGS.' 

>rB, sheriffs, baiUifs, con- 
d idl other officers and rai- 
om these may concern. 
Sn^bens, messenger of 

whereof this Comniittee came to 
B : 

That it is the opinion of this 
that the said warrants are arbi- 
egal." 

uunittee being informed of cer- 
B discourses, said to be uttered in 
ly the lord chief iustice feiiToggs, 
examine sir Robert Atkins, late 
does of the Common Pleas, con- 
me ; by whom it a|ii>ears, That 
dinner at tlie Old Bailey, in the 
air Robert (Jlayton, who was 
the said chief justice took occa- 
; veiy much against petitioning, 
I as resembling 41, as ia<*tious and 
cKon, or to that effect ; to which 
obert Atkins made no reply, sus- 
iled for some advantage over him. 
' jmtioe continuing and pressing 
aid discourse, he began to justify 
the right of the people ; espe- 
■tting of a |iarliament, which the 
if it he done with modesty and 
n vhich the chief justice lell into 
nnd tliere is some reason to 
after he mailc an ill repre- 
tlie aakl sir Koliert had then 
ierty. And tins Committee 
^thilthe sakl sir Uolicrt 
■k with the said chief jus- 
«w was twelvemonth, at 
4. Mr. Price, and Mr. 
) the chief ius- 
AMr. Badloe; 




taking off the crcnlit of his eviden<:e, nnd al- 
ledging he had over-shot himself in it, or to 
that effect, very much to the disparagement of 
his testimony. And the said sir Robert de- 
fending Mr.* Bedloe's evidence and ci^edit, bo 
grew extreme angry and loud : paying to this 
effect, * That he veiily believed Laiighorn die<l 
' innocently.' To ^v'liich the said sir Robert 
renliinl, He wondered how he could think so, 
who lia<t condemned him himself, and had not 
moved the king for a re])rieve for him. All 
which matters of discourse, this CommKteo 
humbly submit to the wisdom and considera- 
tion of this House, without taking upon them 
to give any ojiinion therein. 

And this Committee proceedcil further to en- 
quire into some passages that happenetl at I>eiit 
assizes last for the county of {Somerset, at th« 
trial of Thomas Dare, eent. there, upon an In- 
dictment for saying falsly and seditiously, * That 
Mlie suhjeirts had bnt*two means to redress 
' their grievances, one by |)eiilioning, the other 
' by rebellion :' and fouiid, that though by his 
other dibt^urse, when he said so, that it ap- 
{leared plaiidy he had no rel)clhoiis intent m 
that he said, «. Tlicn 14od forbid tliere should h% 

* a reliellion, he would be the tirst man to draw 

* thi^ sword against a rebel ;* yet he was pro* 
sei^uted with great violence : and having plead- 
ed. Not (juilty, he moved Mr. Justice Jones, 
(who then sat Judge there) that he might try it 
at the next assizes ; for that Mr. Searle (who 
was by at the speaking of the wonls, and a ma- 
teriid witness for his defence) was not then to 
be had, and an ailidavit to that iiurpose was 
made and received ; but the said J ustice Joney 
told him, that was a favour of the court only, 
and he had not desen'ed any favour, and so 
forced him to try it presently. But the jury, 
appearing to be an extraonlinary one, provided 
on purpose, being all of persons that had highly 
op|Mised petitioning for tlie sitting of this parlia- 
ment, he was ad\ ised to withdraw his plea ; 
and the said Justice Jones encouraging lum so 
to do, he cotifest the words, denying any evil in- 
tuiitifm, and gave the said Justice an account 
in writing, of the truth of the whole matter, 
and made a submission in court, as he was di- 
rected by the said Justice, who promiseil to re- 
commend him to Ids majesty ; but imposed a 
fine of 500/. on him, and to be boimd to giiod 
beliaviour for thn:e years : declaring also, that 
he was turned out from being a common -coun- 
sellor of the corporation of launton, in the said 
county, on pretence of a clause in tlieir charter, 
giving such a ptiwer to a judge of assize. And 
the said Thomas Dai-u remains yet in prison for 
the Kai<l Hne ; in which matter of the trial a- 
foresaid, tliis committee desireth to refer itself 
to tlie judgment of this Hoiun^ 

2V/« Resolutions of the lloute of Commoni 
upon the said ]i':port. 



the 



" 1. Tliat it is the opinion of this House, that 
.„ ? discharging; i)f the 1 j i"» nd J urj' of tin: hun- 
dred of OsBulston, inthecountv of Mid.llesex, 
by the court of King's Bench, m Trinity ter« 



ipo] STATE TRIALS, 33 Charles II. leso.-^ Proreediugs agami 

of the said court «ft* Kiwr** Bench, b« h 



ed upon the suid Report, and ResolutKr 
House thereupon. 



Ust. WtWe iIto last tlay of the Umi : and before 
the\ hsiil tinishcd theirpreseiituirnfs.il as arbitra- 
rv and iUesfat, destructiTeto public justice, a ma- 
iiift'si 1 it ilat it m of the oaths ot' tlie j udsTcs of that 
ciniri« aiul a means to subvert the fundamen- I mas Jones, uho had merited io muci 
lal )ai« > of this kiugxlom, and to introduce po- j Coniish his trial, and in the West : 
pen . I Thomas bogierled at tiiis, and tdd the 1 

i. '* That it Is the opinion of this House. cooM not do it : to which the km^ ansii 



Ihat ih«^ nde made by the court of Kin|(*s ' would hare twelve judges of his opinion 
Itenoh. in Trinity tenu la.<t, opiiiist printing of a | Thomas replied, be might have twebej 
bcH^k, ca!lc*d. the Weekly l^i^-ket of Advice from | his opinion, but woukl' scarce find tw< 
Hume. IS Uix-^l and arbitmry -, ilurfby usurp- | vers. The truth of this I have only fro 
in^r to themselves kHrislativV p«>wer. ' to the ■ {>ut I am mre the kinc-'s practice' in n 
p^at iii<c\mr24^MmM)t of i\w Fn»ti.*stanLs and thejudges, it hereof all (except my Lo 
tor ihe tountenam inir of i)«i|)ct\ . Rartm Atkins, and Justice Powel) wen 

^. '* i'h;it it i^tlu^ opii\M:t ff'this llou5kMhat pack as nc-vpr before sat in 'Westminsl 
the o u.t ».f Ki «■> IV::ch. in the inv^n^iiion of • gave credit lo it. 
tines tu) ».:re:idi*Ts if bi* vtars, hav« a^ttd ar- i Bi:t if the l^irrl Chief Justice Th 
b* (i\ . r: . ■. . t 'Ji>:^ '.1y a ' j ;i p;:r4 * i! 1 \ . fji i «m: rir :r pa- raki: . £^ a bnhe of 1 \.»jl. was adjudged to 1 
|-.>t*. .;. .: |-*r«;>a^ j» [' >h.U a«*».\"i«M. a;:'i cXiv^- ■. c\, ainl siJ hUb:id-> and goods t^rfeitec 
sii t ._v j»,ip .x s ? i :i^- his -j . 4 V >t\ s 1 i>. :i -> : i* .! > .. -• - , tx i;: ;; ■ -t t d^» ani the Sd. because tb 
jecis \ miii-h ^« .n him lay he bad broken tb 

4. •■ Tt ."it '.I is ii.; rpir, *':: •*! ti. > Ho-!?-.\ i^th mii?e »:i.to ihi. po.»ple. which thel 
thii the rii'asl:^; si:??"^ ■<.:*; h.v;! yi li.tst «.d>e>, iami-u-l him Haiial ; and it Justice 
wh«*r>riu the ivpior.s l ;v.m*!Tvl '»«:« ^j-r.*!'! ' »cs iiAii^tti- drawn ard quanend, fc 
bv liw, tta.< L'tYAl. a:id a ::■;;!: "^.-va^L i.-f liit [ h--i>:i:vu!t: th^i the king might act 
libmtKs Mihc su*>hx'r. \j *.' ^ i^- i*'i p:k.-iiam€nt ; and if Bk 

5. " Tlu: it IS 5 be * ;»ir.joTi of ihi* !!oi*.K. '■ k : .i'*».-;u n\. Lsi. tLe under-sherifl* 
that the s.i'.i? «■ x^^resM r. > in tbc ilvi: u"' «".» « n ■ *".-. >•- v. - -■'* n » e riK»iv ot ^jsahiy. were h 
by ih« "<-^J .sirxvi \> .^- '. \»c:v s s.Ji.'C:^ u iL Ui^ ••! H -ary the ith. i'.irbuta!<! 
t be TY KMT.iaL'.Mi : .:. . i t« c '. :~ ^ tc» 7ii.< d . AN : *i T. *: -. - 1 ' s j . :c J-. lViH : » hat tiie n 'J 
heiwix:-. *»'.i> :uA;r<y a;'. ^ sv.\.-.». :.:.d i • ' .ii:eA.-> '.-s^rst. v'Jxh. ir.d'ie bargains 
t':^e >.:*^».-M s vT :hi ij. :;-; i^'i^c;.;:: r. •: ^-V **^ -:^. -1-i- j. : ■ •. ik -.he kiiiir* 
tv^r-.Tii': .:*, ^ i «.:" ihc ^ u-zjiitL". 01 th^^ bi- :. li. ; :.»-: j^- :>-.■►, ir-i cT.iit-d tL 
S".- ^-.i :-. ' ■ 1 . . . .-. • : ■■ <^' : : »-, tr .- , i-«* >. i-u--^ t j' « 

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tbvi: ".V, sl.^:*i.-::i:. :>!-<■" :.. ^:-^<-y i^o-I-iC-^. ' li- r « >; . - .r J '..;.■>-. ttU* 

r 1^%.- ^"«"- '• t - •-. T. t ■'e. and 41 

' n> >■-,»' - y :'^-:-i ia (iLiicuh 

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197] STATE TRIALS. 32 Charles II. l6S0.— Loi-rf Chief Justice Scroggs. [ 198 



S. " That lir Richani Weston,* one of the 
bwans of' the court of Exchequer, be impeached 
■poo the aid Report, and HesolutionB of the 
Hook tbetvupon. 

Ordered, *' That the Committee appointetl 
H prepare aa impeachment against sir Francis 
Niitkv Chief Justice of the court of Common* 
EllMfe do prepare fmpeachments against the 
■ii m Wyham Scro^^, sir Thomas Jones, 
ml m Kchird Weston, upon the said Report 
lidBflBoliitiooa." 

■Orfewd. " That the said Report, and sc- 

BoolutioBS of this Aonse thereupon, he 

and that Mr. Speaker take care in the 

■■lii|r thereof apart froni tliis day's other 

fr Ricba^ Cortiett reiwHs from the Com- 
itee appointed to prepare an Impeachment 
MiMi sr Wiilia^ii Scrojgg^ knt. Chief Justice 
dweouirt of Kin^^s-Bench, upon tiie former 
of the said Committee, and the Reso- 
i of the House thereupon. That the Com- 
hmriuff taken the matters to them re- 
mto consideration, had agreed upon se- 
Arddes of Impeachment ajj^iust the said 
■K WQfiam 8crof{gn : which he read in his 
fhtc^ and aftertiards delivered them in at 
4idirk'a table: where the same being read, 

Wlf'LES or IMPEACHMENT against 
ffr WM. HCROGG8,knt. Chief Justice 
«f the court of King's- Bench, by the Com- 
■ooa, in this present Parliament assembled, 
in dicirown name, and in the name of all 
the Coaairaons of Enghmd, of High-Trea- 
Ha, and other great Crimes and Misde- 

he the said William Scroffgs, then 

r-Jostice of the court of King's- 

traiterously and wickedly endea- 



VpHlf iobrert the fimdamental laws, and 
il|§p^pHdied rel^;ion and government of this 



kingdom of England ; and, irnnead thereof, to 
introdure popery, and arbitrary and tyrannical 
government against law ; which he* has de- 
clared by divers traiterous and wicked words, 
opinions, judgments, practices, and actions. 

II. That he the said sir William Scroggs, id 
Trinity Term last, being then Chiei- Justice of 
the said court ; and having taken an oath duly 
to administer justice acconling to the laws and 
statutes of this realm ; in pursuance of his said 
traiterous pur^voses, did, together with tlie rest 
of the justices of the same court, several days 
before the end of the said term, in an arbitrary 
manner, discharge the Grand -Jury, whicn 
then siTverl ibr tlie hundred of Oswaldston, in 
the county of Middlesex, bei'ore they had made 
their j)ri'sentinents, or hufl found several bills 
of indictment, which were then belore tht-m : 
whereof the said sir W illiani Scroggs was then 
fully iiitbnned ; and that the same would be 
tendered to the court ii(M>n the last day of the 
said tfTm ; which day then was, tmi by the 
known course of the*sai<l court, liath always 
heretofore been given unto the said jury lor 
the delivering in of their bills and present- 
ments: by which sudden and Ulegal discharge 
of the said jury, the course of jubticre was 
stopped maliciouNiy and designedly ; the inre- 
sentinents of many Papists, and other oifendcrst 
were obstructed ; and, in particular, a bill of 
indictment against James duke of York, for 
absenting himself from church, which mis then 
before them, was prevented from being pro- 
ceeded upon. 

in. That, whereas one Henry Carr had^ 




. ■ > • 



he was in his service, but cbn- 

4«t,his majesty should expect such a 

of the law from him, as he could 

give ; and that none but indigent, 

ambitious men would give their 

I he expected ; and that to this 

■jjotf made answer. It was necessary 

ihoald be all of one miiid." 

•kii 1 Burnet's Own Times, G69 ; 

ODQ, 706 } Echard, 1077 ; 8 Kennett, 

Md ; 2 Rapm, 754, 755, ed. of 1743 ; 

" , 920. 

Bogev North's character of him, an/f, 

Bsnm Weston seems to have been a 

^(■ach boldiiess; for, not^ithbtanding 

against him, he afterwards 

be power ^T the House by liberating, 

VBsKss Corpus, Sheridan, who was 

M7 soder a commitment of the House. 

Mthe ivht of the Lords to tiy a Com- 

'i|n in Impeachment of High Treason, 

Mcii the Cmc of FItBbarris, a. d. 1681, 



wherein the superstitions and cheats ofthe 
church of Rome, were from time to time ex- 
posed ; he the said sir WiUisun Scroggs, then 
Chief Justice of the court of King's Bench, 
together with the other jud^^ ot the said 
c;ourt, before any le<^l conviction of the said 
Carr of any crime, did ui the some Trinity Term, 
in a most illc&fal .-md arliitrary manner, make, 
and cause to be entercil, a certain rule of that 
court against the printing of the said book, tJt 
Atfc verba ; 

* Die Mercurii proxhna post tres Septima- 

* nas Sanctffi Trinitatis, Anno 32 Car. II. Rt>gis. 
' Ordinatum est quod IJbcr intitulat' ' The 
' * Weekly Pacquet of Advice irom Rome, or, 
' ' the History (»f Popery,' non uHerius impri- 

* matur vel publicetur per aliquam personam 

* quamcunque. Fer Cur** 

And did cause the said Carr, and di\'era 
printers and other persons to be served with the 
same ; which said rule and other proceediogs 
were most apiwrently contrary to all justice, in 
condemning not only what had been written 
without h^uinff the parties, but also all that 
might for the future be written on that sub- 
ject ; a manifest countenancing of popery and 

* Hceth« Case, vol 7, p. 1111| ^ this Co)- 
l€cUw. 



STATE TRIALS, 52 Charles II. l690.—Froceeiing8 MgahiH 



1991 

discoura^pemeiit of prote8tants, an open inTasion 
upon tbe ri^hiof the subject, and an encroach- 
ing and aKsinnini; to thennselvcs a legislative 
power and authority. 

IV. That he the said sir William Scrof]^, 
since he was made Chief Justice of the Kin{^*s 
Bench, hath, toother with the other judg^es of 
the said court, most notoriously departed from all 
rules of justice and equality, in the imposition 
of fines upon persons convicted of misde- 
meanors in the Kaid court ; and particularly in 
die Term of Easter last past, did openly' de- 
clare m the said court, in the case ot one Jes- 
sop, who was convicted of puUishin}]^ false 
neivs, and was then to be fined. That he would 
have re^rd to persons and their principles in 
im]>osin^ of fines, and would s(4 a fine ot 500/. 
on one ))ersf>n for the same offence, for the 
which he would not fine another 100/. And 
according- to his said unjust and arbitrary de- 
claration, he the said sir William Scro^n^, to- 
petlier with tlic said other justices, did then 
tmiMise a tine of 100/. ujMtn the said Jessop ; 
aUhouQ:h the said Jessop had before that time 
provctTiine Hewit to be convicted as author of 
the said false* news ; and afterwards, in the 
•anie Term, did fine tlie said Hewit upon his 
caid conviction, only five marks : Nor hath the 
•aid sir Willi iani S(T(^^, together with ths other 
judges of the said court, had any reganl to the 
nature of theofl^enccs, or the ability of the per- 
sons, ill the imiMising of fines ; but have been 
Diaiiili^tly partial and favourable to papists, and 
persoas alRrted to, ami promoting the popish 
interest, in this thnc of im mi iimt danger from 
them : Aiid at tlie same time have most se- 
verely and grievously op]iressed his majesty^s 
pn)testant subjects, as uill appear upon view* of 
the several rct'ords of fines set in the said court. 
By which arbitrary, unjust, and partial pro- 
vetMlings, nmnv of las majesty^s liege- 
people have IkVu niiiieil, and popery coun- 
tenanciHl inider colour of justice ; and all 
the misrhicfs and excesses of the court of 
8tar- Chamber, by art of {>arliament sup- 
jiressfil, have lieen again, in cUrect opposition of 
tlie said law, intHKluceil. 

V. That he the said sir William Scwggs, 
for the fiutluT ai*complishing of his said trai- 
tor(»us and wicked purposes, and designing to 
subject the ])ersoiis, as well as the estates of 
hi^ majesty's Uinife ]>eopie, to liLs lawless will 
Itiid pieasure, hath freipiently refused to ac- 
cept of bail, though the same were sutficient, 
and lefifally tendered to hhn by many persons 
nccu.-^'d before him only of such crimes for 
whirh by law bail ought to have been takrn, 
•nd divcTS of the said persons being only ac- 
cuw-<l of ort'ences aganist himself; dwlaring 
at the saiac time, that he refiise(l bail, and 
VOiiiniittcd them to gaol only to put them to 
chunr(« ; and using such iiirious threats as 
were to the tem»r of his majesty's subjects, 
ond such scandalous expressions as wera a dis- 
honour to the governuifnt, and to thedicuity of 
his office. Antl, particularly, that he tne said 
iir William Scrc^gs did, u the year 1679, 



commit and detain in prison, in tudi 
manner, among others, Henry Carr 
Broome, Edward Berry, Boijainm 
Francis Smith, sen. Francis • Smith, . 
Jane Curtis, citizens of London : Wl 
ceeilings of the said nr William Scro^ 
high breach of the liberty of the aab] 
tructive to the fundamental laws of t£ 
c<mtniry to the Petition of Rifflity a 
statutes ; and do manifestly tend, to 1 
ducing of arbitrary powe^. 

VI. lliat he the said sir WUfiam 
in further oppression of Ids nuuest 
people, hath, since his being made d 
tice of the said court of King's-bench, i 
trary manner, granted divers general i 
for attaching the persons and seizing 1 
of his majesty's subjects, not named 
cribed {NuticulaTly in the said warn 
means whereof, many of his m^es 
jects have been vexed, their houses en 
and they themselves grievously q 
contraryto law. 

VII.' Whereas there hath been a I 
damnable plot contrived and carried 
papists, for the murdering the king, th 
sion of the laws and government of 1 
dom, and for the destruction of the i 
religion in tlie same ; all which tl 
WiUiam Scroffgs well knew, havin| 
not only tried, out given judgment b{ 
veral ot the offenders : Nevertheless, 
sir William Scro{(gs did, at divers t 
places, as well sitting in court, as < 
oi)euly defame and scandalize seve 
witnesses, who had proved the sail 
against divers of the conspirators, 
given evidence against divers othei 
who were then untried, and did end 
disparage their evidence, and take 
credit ; whereby, as much as in hi 
did traitorously and wickedly sup 
stifle the discovery of the said Fopisn 
encourage the conspirators to proce< 
same, to the great and apparent danj 
majesty's sacred life, and of the well 
ed government, and religion of this 
England. 

VIII. Whereas the sidd sir Williair 
being advanced to be Chief Justii 
Court of King's Bench, ought, h\ 
grave and virtuous conversation, to c 
a good example to the king's liege p 
to demean himself answerable to the < 
so eminent a station ; yei. he the sait 
liam 8cro^fgS, on the contrary, by hi 
and notorious excM^ses and. debaucl 
his profieine and atlieistical discoui 
daily affront Almighty God, <tishonoi 
jesty, give conntenance and encourai 
all manner of vice and wickedness, 
the highest scandal on the public jusi 
kingdom. 

* 8ee this Case referred to by Mr 
in his-Argument in tlie Case of Leadi 
and others, a. o. 1765, in thisCollMl 



iOi] STATE TRIALS, 32 CnABLts II. \C)%0,^LordChiejJatliceScroggi. [iOST 

> AU wUeh wonls, opiniuiis aiid actions of the I would have tlie statute 1 Mary read which de« 
tMmrVfi^Baofr^ werchy him spoken dares *'Tliutiiothin(^Hhall lie construed trea- 
^ dtae, milnoiisly, wickedly, t'alsly, and I so» but w)iat Ls already so by 25 Edw. 3. 
;toilieiiatethehpartiinf the kinj^'s | otherwise declared, but bv act of parliaim 
■ iuf maiestv. and to set a division i i would not, in behalf of tDc subiecL make 



imms mqesty, and to set a division 
¥ni and them ; and to subvert the fun- 
llm, and the establislied relijerion and 
t of this kingdom, and to introduce 
/, udaniiiitrary and t^Tannicalgovern- 
, eMbiiy to his own knowleds;e, and the 
I bin of the realm of England. And 
Itendk he the aiii sir William Scrog^rg hath 
■HiiqrMa his own oath, but alsf>, as far 
■•iihaiiiy,hBth broken the kin|if*s oath to 
^jHfie; whereof he the said sir Willliam 
le w tscB i ting' his majesty in so hieh 
er iustioe, bad the custody ; for 



I: 




No 
iamcnt." 
not, in behalf of the subject, make noir 
treasons. 

Serieaut Maynard. What Knight says of 
S5 Edw. 3. is very true, but by a distinctiOD . h 
must go. The question moved is, << Whether 
any punishment of any oflence can be by the 
name of treason in paniamcnt ?" No man can 
deny it. But enormous ofiSenoea may be. im-- 
peached by the name of treason, notwithstand- 
mg the statutes. .There was a treason aft com* 
mon law before the statute of S5 Edw. 3, and 
the judges took npon them to determine trea- 
But, by that statute, the judgment of 



son. 
|iebth<ni>r Commons do impeach Aim the | treason, in doubtful cases, is expressly reserted 
mI dr WiHiimScro(^, of the Hi)jrh-Tiv«- | to parliament, amount other thmgs. «« Butbe- 
■ againit our sovereign lord the king, nml ' cause men cannot think what sort of men may 
ieromn and dignity, and other the higli bcjudges, they shall not proceed in adkmbtfiil 
..jnesand misdemeanors aforesaid. case, but shall acquaint tne parliament, which 

And the said'Commons, by protestation sav- ^ n^t tA have an act made, but by judgment in 
iiytotlMnisefves the liberty of exhibiting at parliament to deckre it treason." What trea- 

.. — L — A .L .• son is, no nian can define, nor describe. In that 

statute it is not; but treasons are enumerated ;*' 
^' only those, and those cases ; if any other 
cases come before them, they shall not proofed 
upon them, but shall acquaint the pariiament. 
Iran offence be committed, the parliament shall 
judge whether it deserves the punishmrait of 



■^tine hentfler, any other accusation or im- 
It against the said sir William Scroggs 
Mof n^ying to the answer that he shall 
thereiuito, and of offering pro<»t8 of the 
or of any other impeachments or 
that shall be by tliem exhibited 
him, as the case shall (according to the 




i of parliament) require ; do pra;^ that • treason,*' What if, as in our case, in interval 



ke aid sir William Scroggs, chief justice of 
Ihe court *if Kinn^s-bench, may be put to an- 
Mvt^aB and every the premises, and may 
to safe custoily ; and that such 
exanunations, trials and judg- 
VMij be upon him had and used, as is 
to law and justice, and the course of 



JJpm lit above Articks the following De- 



Sr Frmweii Winningian. It is said, by May- 
IB^ TlHtft the first article is general. AU I 
flB ay is, that it is a substantial article, ** To 
■hi m the fundamental laws of Enghind, and 
teidradooe popery and arl>^trary government 
bf vaida, actions, and opinions." That article 
UM a great crime, when that learned 5M*rjeant 
«■ ooneemed in the iro]ieachment ot^ lord 



' flkJokn Knighi, That article was then of 
Ml importance. In lord Clarendon's impeach- 
Mtlora Strafford's case was cited ; but there 
Ikiy proceeded by act of parliament, and within 
iMiflrtliree days passed it, with a clause of 
tol being hereafler dravm into example. I 

'* I aniomt John Wright, and Richard 
'ChisweU, to nrtnt these Articles of impeach- 
*MBt with the llesolutran of the House of 



' C omman a relatiiu^ to tbe same, upon Wed- 
*aeriaytlieMhof Jan. 1680. Perused by me 
^Moorinnff to the order of the House of Com« 
^noDs; And that no other person meBume to 
'pnotthoB. Wi. WiuMlH, Speaker.' 



of parliament, there should be a contrivance to 
destroy all the Lonls and Commons ; is that 
compiurable to the treason of coining a shillinjEj^ P 
After the statute S5 Edw. 3. many acts werm 
made Treasons on particular occasioni, as in 
Hen. 6. Hen. 8. Edw. 6, 1 Mary, *« None 
shall be judged treason, hut what is so by S5 
Edw. S. in reference to the courts below." If an 
act of parliament does not name thekin^, itdo^s 
not bind him. And will any man think that 
the Lords will let their throats lie open to be out, 
and not judge such a conspiracy to be treason 'f 
Whatever offence deserves the punishment of a 
traitor, the parliament may impeach. Sec. and 
the Lords judgeacconlingly. Before the sta- 
tute 25 Edw. 3. a lord did raise eight hundred 
men, &c. and it was judged hut a riot. Where 
the offence is a public destruction to tlie nation, 
as all offences to the king, as coining, &c. it is 
treason ; but in a riot, the intuition and smpo 
is on particular persons, and was not jud|^ 
treason in the levying eight hundred men, 6cc. 
To destroy the inclosure of particular persons, 
is not treason ; but to go in great numbers to 
destroy all inclosures in general, is treason ; fot 
it differs in the scope and intention of the party. 
In tins case before you, here is a design and 
intention to destroy the nation, and our reli- 
gion, and i>eople combine to form companies 
and raise arms, and intend to destroy the 
Lords and Commons. Think you, that this 
cannot be judged treason ? Now comes the sta- 
tute, and says " If such an offence, as men cannot 
define, should happen, the judges are to acouaint 
Uie pariiament n^th it." And an aet or pw- 



S03] STATE TRIALS, 3Z Charles II. iSSO.— Proceedings ngamat 

tiamentdoes notbind the parliament unless the \ the city juries, where great fines hi 
parliament be named. General words shall j imposed. There can be no higher en 
never take away the right of the nation, in the Scroggs is accused of; but as to tl 
judgpment of Lords and Commons, The words " traitorous,*' that he did traitwously d 

J* o r,..- • take h 

Gourtv 
your titlt 
betrayed a castle in France, by judgment of ' ' 

parliament, without more ado, were beheaded ; 




and tfasit is adiiTerent jwlgment from the law 
in case of tiiedMiB. What the act 25 £dw. 
5b dbevreserfe Ac parliament, shall vM. he judg- 
ed in-teiy ittftrior court: 1 Mary— 'Not to define 
hot enomerate what the judges shall judj^ In 
Rich. S.'sdme 4 judgment was dedaredin par- 
liam«it against Tresihan. This statute does 
not define before-hand; but when an offence 
does (all, then to judsfe it. Sometimes the par- 
liament have judged hanging and drawing, and 
not quarteruis[ nor embowellmg, and sometimes 
belM?ading only. In treason, the forfeiture is 
to the king ; in fekmy, to the lord of the manor. 
This case we now debate is no case enumera- 
ted in ?5 Edw. 3. But take that power away 
di dedarin;^ treason in parliament, and you 
Aiay have all Tour throats cut. (He spoke tow, 
notVell to be lieard J 

Sir John Otmny.- No doubt nor question bnt 
an oifipnce shaD be treason, if King, Lords, and 
Commons declare it so, since that statute 25 
Edw. 9. This article against Scn»g8 is very 
micertMn.' Has he broken the fundamental 
laws of the nation P^ Wherein ? It is a hard 
thing for a nuin to fall under the displeasure of 
the House of Commons. No suliject is too big 
fbr them. It hail been k great ratisfifection for 
Serogga to have acknowledged thexyfTence here 
aoad explained himself; imd it has been fre- 
q#ently done here by Fome Lordft ; . as the duke 
of Bu6kini?ham, and IiniUrliugtbn, who ex- 
plained thtfir actions, ^c* and upon satisfaction, 
the House has forborne to impeach. Mr. Thomp- 
son of' Bristol was heard at the committee; so 
was sir John Davis- of Ireland. Lord chief 
justice Keeling was beard in the House, u|K)n 
complaints against him, and tiie mattt^ went no 
farther. I wo'rtld have Scroggs sent for, to 
know what answer he can make for himself. 
Let him have th^* same justice others have had. 
Sir Tfiomas Lee, I am one of those who 
think that fay that statute the parHanient u not 
so bound up, that, v\ hen sucn enonnous of- 
fences are committed, by judgineit of parlia- 
ment they mat be mdde treason, and no doubt 
of it for the safrty of the government. But 
now as to this "parttcular person, in what degree 
win the Comihons make their complaint to 
expect jud^cbt from the Lords ? As the -Ar- 
ticles are fVamed, you must change your title ; 
but whether it is prudence to dress yoin* arti - 
cles in these terms, is the question. It was an 
odd sort of practiec of the juds^es inthe- case 
of sir" Sanniel Barnardistoit, 'Sec. to construe 
*« malidou^ly, to.*' but :peppor and vinegv- 
saac«- They told the jury, " Finl you but the 
feci, and we shall lay the crime io law." I 
oitai hafu taken this for « great miscbirf in 



impeachment. It may be, the judge 

to aggrandize thenuems. I would • 

whether to say '' an, imiveraal subvi 

the kiws,*' to that one particular actioi 

chajgbg the jury. It 3rou expect o 

judgment from the Lords dian the 

meaner, consider of it. The rest of tb 

are equally ffuiltym this matter; itwa 

tention of^ all the four judges. Call 

lower name of offence ; you cannot 

higher iudgment from the Lords than y 

plain of. If the parliament happen to 

fore the matter be judged, the impel 

remains upon record, and may be pi 

in, the next parUament. 1 nave st 

matter, in every part, plainly, not in ft 

Scroggs ; that, if any thmfic should I 

you may not be unprepared. Anotb 

may fafl out ; if the ciwrgc be trea 

bishops are not to be judges of it, and 

may have the better effect of it. In t 

of the articles is tlie very evidence, and 

be of great inconvenience to show the 

the nature of the crimes from the < 

itself. If the Lonls happen to say, 

but a single act ; they may make a 

whether to commit him for treason ? Ai 

ther the Lords be free to make tliis 

ratory treason ? Let us take care, not ti 

Lords too of\eB to renew their orders, as 

Danby's case, if vou intend to print 

suppose you intend it not a censure b 

parliament. If the charge must be as 

It, all acts, for the future, of the judg' 

be tliesame in wbat may follow herea 

would be better informed by learned : 

tliis shoidd fall out, to consicler what d\i 

you will be u(ion. In Lord Strafford 

because such judgments should not 

future be given by the judges, theref 

Commons proceeded by bill of attaind 

not liy juflginent. 

Sir Frniicii Winninfiton. To the first 
" Wlieilierthe declaratory power of tre 
in the {KirUanient ?'' Ahhough doubi 
other day bv Jones, yet if you consider 
giunents^- in* lonl Duubv's case, the Hoi 
delivered of that didiculty. Taking tha 
tor granted, if this article be true, now 
coine to a mature debate, road the artic 
by one. As to the fairuess of the thinur, 
enormous crimes are committed, it is oi 
to tukc caroto question them. 

Sir Thomas Mcrfx, When I heard t 
ticle read, I did tlunlq it was an arti 
itself ; and now I perceive that the othe 
clcs must explain this. But .f the trcas 
in the foUowin^jt* articles, I would see the 
IS not for the interest of ihe Commons t 
tiply treasons \* bui still to consider w 



STATE TRIALS, 32 Chailis II. l680.--£i;nf Ckirf Justice Scroggt. [206 

do think tliis man (8crogg8^ in not fit for his 
p|Bce, and has done crimes lit tor great punisb* 
mg. Consider that all the ill precedents have 
been the result of mens prejudices iu odious 
cases. When we sufier ourselves to be trans* 
ported, we may proceed well in this case, but 
ill for ourselves and our posterity. 

The Speaker read the Declaratory CUIise in 
95 Edw. 3, 

Sir Fraaris Winnington. Hie gentleman wha 
spoke last, calls ine up. 1 did tnink that poini 
of dedaratoi'y treason inherent in parliament 
What I say shall not relate to the person of 
Scroggs, but 1 shall go upon the warrantable 
steps of our ancestors, in what they have dnne 
to lay the foundation oi' right. His aigument 
(to my understanding) though the power of de- 
clarator^' treason, ^c. be agreed by the House, 
yet his argument does go directly against de* 
clanRory treason. To be better understood, 
I shall state the law how it stands upon that 
statute 25 Edw. 8. and the precedents. By the 
statute there is no necessity that the ofience, 
before you declare it treason, should be fekmy 
before. 1 Hen. 4. chap. 20. 1 Edw. 6. chap. 3. 
1 Mary, chap. t. By reason of the disorders of 
the kingiluni in the barons wars, the parlia- 
ment md reduce all treasons to the statute 
S3 Edw. 3. I obsene tliat, since that time» 
there should be no other treasons but what 
should be adjuflgcd and agreed in parliament ; 
by which 1 do plainly observe, that, to that 
time, there were other treasons than in that 8t»« 
tute are enumen^M ; and that statute talus 
them not away,, but forbids the judges to med- 
dle with them in judgment. As this case is, 
by search of jirecedents, there was never, or 
very rarely, any judgment in parliament which 
the judges in Westminster- Hall or commis- 
sioners of Oyer and Teniiiner, could try be- 
low ; all was upon declaratory trcabon. But 
says Finch, <* By 25 Etlw. 3. the parliament 
did not declare a treason, unh*ss it was felony 
at common-law." But to dc^tlower the ijueen, 
and several other instances, as the biiuging 
six-pence faltie money into England, ^as de- 
clared treason by tliat statute, and was not fie* 
lony before. In the case of Hichard Weston, 
who deliveml a castle at Berwick, and Corn- 
mines at Aries, botli n-crc judged treason. Par- 
liara. Koll. Numb. 5. 1 would know whether that 
was felony at common- law ? It was oijy breach 
of trust against the |^\'emiiieiit. A'he. of- 
fence of TresiJian and Ikslknap Has no liokNij 
bcfoi-e. But as ^laynard said, «* That what b 
committed to the dchtmction of tliegoTcrnmcnt 
dc<(er\'esas much piininlinient as those treasons 
in the statute ;'* but to Nubver^e government, 
tbat is a (Kirliameut treason. But 1 1 Rich. IS. 
thorc was a distinction of treasons, which were 
not hy that statute. For thatqiiestion|>ut to tlie 
judges (TresUian aud Jielknap) belonged to the 
IMir]ianient,anflmittotlioiu,u>dccide- And they 
are not made but declared treusons at common- 
law whir!i were not lelonics bel jl-c. The main 
objection is agreed as to the declaratory power of 
treason in |Nurliament. Butitisiugedby Findii 



it oonmon law ; for when we 

it treason, thejud^ at West- 

• HaD aanst judge so. In. the case of 

.^■sewdoii'a hnpeachment the Lords did 

9 '* That our chaige was general trea- 
therdwe 1 desire to express paiticiilar 

ria ihis.cfaaige. Pray be wary in that 
of top Bsavr dedaratory treasons. 
. Fimek. What I shall say in this case 
tt IB dlisdiaive of my duty to my coun- 
ad I ahould be aony any man should 
Ma an advocate for Scroggs, for I think 
at fit for hia place, nor ever way, and I 
■ach leas now. This crime he stands 
ii oi^ in its own nature, is not capital, 
km he committed it, he knew it to be a 
hat not capital ; so that I would not have 
isr a crinae ex po$t facto, Tliis being 
f war of prelimmaiyy I shall say snme- 

10 the declaratory power in the parlia- 
Siippoae you had such a power, yet no 

can be dedarad treason, but by King, 
I and Commona ; you go on a little too 
hst lo decfaune it bmrc you impeach him. 
hit I shall chiefly insist upon is, the de- 
ar power in pariiament itself. What is 
|r Maynard is a doctrine so luiKchievons, 
is age, or the next, ma^ rue it. When 
Mc onee declared the fact treaj?on, the 
I maT judge that foct as treason for the 
; oolese it be with a * Ne timhatur in ex- 
liBi.' Put the case of a f«ircible entry, a 
gicater crime than a robbery on the 
ay ; for that pots a man in fright, and 
May his land as well as his money. Be- 
M Bimte 95 Edw. 3. there were great 
la m the kingdom, and there usudly fol- 
e; ami 4IS the parliament became 
ade than the other, they were 
lerUs of their rage ; it may be, 
may come again ; and then the 
i mast punish upon the like occasion. 
supuose parliamenti in being, nor 
y and what a miserable case will it 
— upon such judgments no remcfly can 
< ! By the sUtute 25 Edw. 3. in high- 
I die forfeiture is to the king, as well of 
iddofodier Lords, as of the king. Ano- 
art ; in petty treasons the forfeiture of 
Crimea m to the kml of the fee. And 
le there mav he many snch like treasons, 
leeediags shall he stopped, till the par- 
adcdare whether the crime bo treason 
ay. The intent of that act was, that t he 
LMifthould not lose their rights and tbr- 
' sboukl be given to the king, and 
ahoald.be stopped till the treason 
1 W0ukl> have a precedent 
a eier apy offenre was de- 
-_ in parliament, that was not fe- 
1 whether ever they did declare or 
, an out of his life ? By - bill you 
^M deliharation ; the Lords and the 
of it 5 but here by a itecla- 
icyoa pead it but onoe, and in a 
Sbclare a man a traitor, which 
a man out «d*his life. I 






S07] STATE TRIALS, 3? Charles II. l6S0 — PyccccdingM againai 



*> If you oome and call this treason, tlie jmlji^ 
will call it treason ; and Mill you Gfire thein 
that poirer ?" Uut the declaratory (K>vi'er is to 
he ar)^e<l lor wery s|>ecial caKe : and if so, it is 
not an anniment to sup|M>rt ileclnrntorv power 
in thejwtj^, but toprrvent it. In the case of 
Emnson and Dudley, the judpjfes could n<it pro- 
fxeu upon .tluise imiictiiients l Hen. 8. They 
came to parliajuent, and the history says, they 
were attainted ill piiriiainent ; lord Herbert, in 
his history, says, *' For adhcTinfo;' to the ldii(;:'s 
enemies.*'^ But the journal of tlie Lords liup- 
pened to be inR^iccted in kin^ Jameses time, 
when the Lords intended to give a judffiucnt, 
but they found it only uiisdenieanor — The at- 
tomey-u^iieral bnuigbt in the indictment of 
Empsou and Dudley, and the Lords took no- 
tice of it, anil calleil it '^ Prodi forie^** though 
it was but a bare encroachment. In the ff>rty 
articles afraiust sir John Finch, and the articles 
against ju^'tice jkrkeley, iIh'v were inflicted of 
treason, in the goueral articles, us in this case ; 
they iel\is»'d a lawyer to plwid before them in 
the case of iSbip- money, and tiicy refiLscd a jury 
to enquire intf» the niisttenieunorof the spiritual 
GOurfN ; and all the articlirs said, <* PnuUiurie :'* 
For ht're is a thing we must consider: Tlic 
Chancellor is kceiHT of the king^s conscicuf'e, 
and tlie judges of the kint>*8 oatli, to do cnual 
ju&tic^, ** secundum \virv\u term*,** and when 
they impose aiiNtmrj^ power, it is n(»t as in the 
case of tres|»asK or felony, but that is to tiiibvert 
the govemm«'nt. The case of justice Tlioqie, 
23 Edw. ]. * Sacramentuni Domini k«t;is et 
■ siium malicio.*^, ikhi\ et rebcllitir falsitica- 
* cavit.' So we must Judg(> tliinir^ acoR'din^rto 
reason. This man w;is supfMH^cd to Ih* learned 
and virruous. He has ilie kecuing of the 
kin;7*s ofith, and lit* has l»etravcdit; Thorpe 
did so, und was hangiul. i am n(»i now to 
make a declamation avfainst Scroggs, Imt for 
my country. In the ^lirror of Justice, Fo. 
135. tliitx? of a jury tu^ipiitted a man, and nine 
found him guilty ; a judge put out three, and 
put in thnt? who found it ; and the man was 
nanged, and the judge was hangtti for it. If 
not checkf-d in the canvr, a man will 
tell us when we shall have justict\ and wlien 
we shall have none; and he certainly de- 
iierv4S the cviuiuri' tif treason. *• Givat offi- 
cers have much to lose, ;uid it is an awe u|N)n 
them,'' Finch said ; but I am ntore afraid of 
an arbitrary judge, than of tlic lionls and the 
hundred i'ommons judgment. A man vinll lie 
eontent to lie liangi>«l when the parliament savs 
he is naught. (Tlie Honst* laugheil.) lie 
would Im> a>liami*d to live ; he would have little 
comfort to live, es|)ecially in his own ctiuntry 
vtluTe the ^larlianu'nt shsill think him a traitor. 
In Husband's Collections of the Tmnsactiona of 
164t. ^cc. tile attorney -g^'ueral exhibits articles 
t>f treason against the li\e metidH^rs, fordoing 
their duty in parliament, viz. ** That they luul 
•ndeavoured to alienate the affections oV the 
people airainst the king.** It is not said, '* To 
•Uenate the atfei^tions of the king from the 
fMple, when they caiiMl l»vt justice*' — 



Those who were for ship-money, wen 
to be treason, *^ To alienate the aflectioi 
people, ^c." "Subverting the ftmc 
laws" was as general an articde then 
is now. Mow the quortion is, if any 
unanswered — But it may be'aaid, ** j 
you let the judges declare it 'treason 
judgments, when the psrltanient has 
it treason P" Certainly there is no daof 
in tliat. In lord SStrafibrd's case, by 
* trahatur in exemplum,' people thong 
never to be done again — The judges n 
the indictment in a doubtful treason, I 
bring it to the parliament. All the m 
a bill of attainder, and a * Ne trahat 
If great offences as these escape with 
judgment, how shall we oome at otl 
men that shall offend, &c. P If this < 
the Lords, in their court, to judge, i 
^ive a judgment suitable to the fa^ ( < 
mg it treason will not make it so— An '. 
man ought to be content with that jiul] 
lUit the <qucstion is. Whether the L 
commit 8cn^gs upon tliis impeacbi 
hail rather sucli a man was tied u|>, 
loo>e. The couunitment of kutI'Danb 
solenm cntr>' in the Lonis' Journal ; ; 
shoulfl we siip|»osG a difference with tl 
about his commitment? when anile i 
in their journal, when the Lords sbi 
examining all due circumstances, 
char^ not to be treasou, we muKt be 
The judges, by thus discharging jur 
uiion tlieiu a legislative authority, uiul 
mn//.le mt-n, und sew up their mouth 
the laws ; and shull not the parliament < 
tliemP The juries weredischanj[ed lie] 
made their presentments. Shall the 
we Nhall ha^ e no law ? I woubl know, 
all tJie former offences men have bee 
uiHui in |»arliament do come up to this 
ing said this oi' the power in parliamei 



I «.i. 



i c^iratorv treason, the |ioint is well set 
I to \Hi sfiaken. licss crimes than th< 
I fornierU called treason. Let us not sV 



be afraid in this ; we have precedents 
I »id(^. 1 have no pn^udic*e against the 
man, but pray let the articles pass. 

Si'ijeant Slaifnard, What 3'ou he 
told by a gentleman of 11 Rich. Q, is f 
I ticular, and very observable, ** The C 
pray, tliat tlioLe who surrenderetl tin 
.S:c*. may lie put to answer to the articl 
upon.** Kii-hard Weston dehvered t 
at ll«ru ick to the king^s enemies, wlie 
victual enougli and munitiou to liavt 
out. He hail judifinent in parliamc 
hang(><l and drawn for delivering that ci 
emlwwelling \ias no part of the senteno 
mines, fnr delivering the castle at Arlci 
out kiive of the king, he went away ih: 
ing the cnistle : I Me defended tkie pli 
was judged to death liccause lie left tl 
One was beheaded, the other was dr 
hanged, and vet the dnnre is not '' 
nr," but by bis delmiiU they kft thi 
and were to answer it in pwUament \ \ 



i; K] STATETRIALSp 32 Chables II. \6S0.— Lord Chief Juitke Scroggs. [310 




i ivtfiiiilwiii by award oftheseignora and 
\ InMiindhid judgment of treason ; so that 
4 Wiiiiiilpttntfrf' treason in ono case of fe- 
■i kf. btkeolher, 25 £dir. 3, we had much 
i M ikcML kw oif * Crimen kese majestatis, 
' 'riCBHipcfdiidiiontB ;' the one was an or- 

! fcnyjrijt if the other < in campo manic,* 

r libjMgnl by MDate. So that when a iiarti- 

. nhr CM OMM before tlie parhument, tlicn it 

; Mtokjidgcd. Butinourtime, whenmen 

tmmumxoj idigion and the whoie Uw ! — 

Itlif mak thk now, that we may not be de- 

|rindiliyijiiideiDent upon a greator occasion. 

ib. Jlici fwould Know, vrhetlier the de- 

{Mff tf t csMle wai not felony before that 

BMagvait Weston, &c. ? ItmuHthare 
feiriliy tke lord constable, or lord mar- 
ihl «rk paiiuiieDt I would know, whether 
Ai Lofk en ikor the judgment of high trea- 
laklraMlher pnishment ? As for Kich. 2, 
ImV Mt htfc precedents urged of tliat un- 
If tne ofienoe was treason liefore 
I ksr, itii not necessary to be lelony 
The Lidictnient of Empson and Dud- 
% viiiol" Pipoditori^," but by an additional 
"■ABpnunentk was, '* For the adhering 
^^* Bf*i «ewes," and that was treason. 
JjJ*J^Fiiich's crimes were not greater 
MMuliifluiil*!, and yet an act of parlia- 
^''^■Mde for that: I think it a hard case 
•■J^*** sot irf his life. If CTery erro- 
Sl'^K!* ^^^"^ ^ * chancellor should 
2? • 'J''^ oflfence, and every cnYtneoiis 
nv ■the oiker courts of Westminster (that 
y***»*f eter ou^t to be high treason,) 
"5**jB«ttlis pen! of their ignorance, 
^^ jy It is resolved, on all hands, that 
J^Jypower of treason remains in par* 
^> ^ift ■ objected, " That it was nerer 
^^|*»iibut what was felony atcom- 
"!J*- The word " lelony" there imports 
i5?jj* • pwt and enormous crime. In 
JJJU* flf maim, it is expressed felonicl 

a^^*{^ A great and enormous crime is 
„ j^Iihall speak to what Finch ob- 
■v it must be felony betbre it can 
— -Jf< f"BMn IB parliament. " The cn.se of 
PJJf* OMKctnientwas upon the statute 15 
-*h} •^ not much rely upon that, nor 
JH"*|i»OBdent of Weston and Coinminc-s. 
*** ^ to delifcr op the king*s castles or for- 
^*^^ fcht tkey are tenable, is aiding and 
>Wy tt the king's enemies. In that of 1 1 
^tifcur or fire judges were impeached 
'V^ui eztnjudicial opinion agiiiiist the 
■Went No man could say tliat was fe- 

Eiifir die objection against " the un- 
liMiaf Rich. 8, and precedents not to lie 
H^ Ac:" wfe must tdte precedents whore we 
kwB tkm, and I take them al\i'a3's to be 
ilMrtB tBDMB when there is oc^casion of 
I iRwdenlB. I take all those precedents 
1 flick. 2, to be legal precedents, and not 
rcBHfCei against In 17 or 18 Rich. % 
boms Talbot oonspired against the Uft; of 
iB^s two wides, and that was not felony, 
etin tkiMt iMlianiiit ic WW t^udfid iTift- 
'^ viu. 



son, and not fulony. Sir Thomas Hacksy, a 
priest, proffered to the Conunons a restraint of 
the excess of the kind's house ; the king took 
it as dcro^ory, (&c. judged — The case of th* 
carl of North umb(»*luud, 5 lien. 4. He had 
given liveries, and had great retainers in the 
north ; the parliament judged it only trespass, 
and not treason ; it came to a dispute whether 
it was treason or felony, and it was judged tres- 
pass. The several judgments against EmpsoD 
and Dudley, &c. The oppressive [iroceedings of 
the Court of Wards^and llie word ** Prodi- 
tori^" is so: andtlie Lords did judire it. But 
if we may believe lord Herbert, in his History 
of Henry 8, tlie charge of Empson and Dudley 
was brought into parliament by bill against 
them, and it was rejected, as not hein^ well 
formed, but when mende<l it never nassed. Tlie 
bill is extant of their restoration in blood, and it 
makes no mention of their being iudg«^l in par- 
liament, but they were attaiutcfl by course of 
common-law, at Guild-hall in LcMidon, and at 
Northampton, Dudley. As to the business 
now before you, I never heard but that the sub- 
verting the fundamental laws was »* PnMlitori^" 
in an impeaclmient. This is si>oken of Scrcggm 
as a small offence, and a single act, and there- 
fore a hard case ; but we ore beholden to the 
shortness of his reign in the King's- Bench, for 
no more. The offence of Tresilian wns but a 
single act, and ship-monev but a single art^ 
and riots, as Maynard saiil. But to destroy 
the whole government The dischai^e of the 
grand jur>', as if with intention to sa^e all tlie 
Papists from conviction, is not this, forjudges 
to make laws, as in the case of furhidduig 
printing, he, ? And a general warrant to seize 
persons and goods by messengers, is not this a 
subversion of the go^ emmeut i* I believe it 
was done with that intent. If Hrroggs be not 
a good lawyer, he ou^it to lie, v.nA must an- 
swer for his fault of ignorance of the law, aa 
well as tlierest of his charge. You cannot 
in this fo less than the word " traiteious ;*• 
else it IS casting dirt upon former impeach- 
ments. 

Mr. Finch, I am no advocate for Scrogsrs, 
much less for his crimes. I onW* said *' We 

ml 

ougnt to be cautious how we construe treasoa 
iti purUamcnt." If every illegal act be treason, 
Me are in an ill case. As for the case cited of 
earl of Northunslterland, it was plain treason^ 
and the Ix^rds interposed for mercy to the 
King. As for Hacks> 's cast*, it was repealed ; 
and for Talbot's case, that was declared treasoQ 
by the lx>rds alone, if you will allow that for 
a pretredent. 

3Ir. Ptiul Fulfil. Sir, we are not gouig about 
to declare any thing treason, but to offer our 
articles, and leave it to the Lonls ; therefore most 
of these arguments would be more proper there : 
for we only impeach, they are to be the judges 
whether tlie matter be treason or no. It U 
true, we ought to be cautious what we do in it, 
because it is not pl»jpcr thtrt thit House should 
impeach a man for treason, without having 
good gioujuls for it. But is not the oid«r 



2in RTATETRIALS, 3?CHA8LKsn. l6%0^Pn€adimg» ^ 

rather for Inil than lo fat him go 4 



ihfiirt priMifif H kini] 'iTaa art iifntaK 
ithliM ntk biw? Is ii'ii ilii^iidprif ^nd inri'.-s 
Mini jNirt 'it'thw vnvMiimmt? .4ni1 
iliHiMiwiiiiK (ir tltPiii. M thi< jadi'v; 
Ifinndrr tlinn iiwIi->.«? Ai -'-- 



w mi< !)■•- 



ittimilitN roM'ixi- Imoki- Biirl pappri uIhIi _ . . 
•nHil'illi rint nil trii<l tfitlir mibviTiuon <>fl)ic 
Kni'i'iiiiiii'iit ? hihI what Wtlrr ifroon*'* '■houlil 
m- Iinvc f'lr niir prrH-n^rnt(^ ^ I ttiiiik the ar- 
Mrlr-i art' wiJIilrawii, anil t/iiifht lo be cngroMciI 
■1 llipy iirf. 

Mir tdrbiiTil Tun/ili: Sir, I (unnnt admit that 
priili:iim'ntiii, li^ iin|i(>a( Ihiii-iiIk Iwf'irr Ui« l^irdi 
rail iiimIii- any lliitif; Iri'WHin, btit (inly bucIi 
niiillfniHNHiTutmiuinltvMiinmraihw, bdiir*- 
till' NiMiilr <■!' ■{divaril tli'i' Itiird. And I tiiiiik 
HI' <iii|[li( 1(1 )n' mi <-iiiitiiiii!i III' our iKnl'Tities, as 
mil tri prcH liir •Hirli )irPriili'iitK, littl ytlli |>iil 
iiilii lid' liiiiiilii (it'l)iF IxiiilHajKnTor, forwIiH'h 
wr may liavp caii*- rn miml liimraArr, biit 
iirtiT KPt Imrk nijiiiii : fur tfir I/>nls do mil inw 

juirr »ilti lliiiM- |Hi»rrN Ihry miri> q[el. 'Iliere 

'il<uiiN bv wliirh ii a]>iM':ir<, that the 

tr iill(iii|il(il In inakr iln'liimtivGlrra- 
■iiiiH iiKiiir, nilliinit nnv hniM-nrhini'iil <'n>in iho 
CotimiiiiiN. Iluvr ni'arcliim' yoii pvr llinn 
nu-iiiiriii:i'nii'iiil>i|inii'itiltlipri'in';1inicrkec]>l<> 
|Ih> iilhiT H ny (•Cnitikini; iiii ihtlarutivi? Ircasuoi 
liiil li> bill. 

'I'Ih- \tlu'1i-s «t Ti' rrnil, niiil niipsliim pul : 

llrMitriil. '■ Thai Ilir niid Mr IVillJam 
SrnH;ii<i hi' )ni)H'arhr<l n|inii ihr uiil Articin ( 
anillliiil llit-vuid \Ttii-lis U- iiiKToniiil. Biut car- 
iK-d lip ti tlH' l^mln hv my hml t'atondi^h." 

tlhhT.ll, " "Ilial iIh' niiiiiniltn' niipniiitol to 
•MiiiiiiH- tlit< pr<Hi'rdhi):s<irilifJiH^'> in Wnx- 
iiiiiisiir ball, ami iii iitt-mw iniixMrhtncniK 
ai|.iiiiM hir l-'rnm'is N.hiIi. riiivt'-,!!!"!!)'!' iilthr 
('(•miiiiiii' inras ; >ii I'hnnia!) June*, onr of the 
■iiiliii'^nl'ihri'iuul t<rKinK'ii-Ilmi-h : uii.taiT 
IlK'hanI Wminii, mif ol'ihf borona irt'ilw «>nrt 
••I K\i'lin|i)rr. ih) hriiv in «ucli iiui>nH'famniti 
■ ill) all II'II miirnl NptiM " 



I " idly. We •« of opinion, that ihi 
halh hern twice adjuated betwixt both 
, Tiz. in the nae <d the eari of Claren 
I the ciM oftheearl ot'Uatifajr. 
I " Ik-^iiten,w«iliilihiBkitreT7nnMfi 
I a^reeahlpioiunire, thatbeahouldbe 
I and execul-; his place of Laid Chief 
; irliilst hn lte:< uader the charge ot' an I 
: mpui of' hi^i ireaaon. 

" f-iklty. It may deter the witntB; 
llicy Khnll sec him in luch gtrM pawer 
whimi ibcvare to ai^use. 

" Kcnt.'Salishii^, STaedeafieM, Hv. 
8haftsbury, F. Heihert, iHoDraoiitl:-! 
I'. WhaitDn, Clare, Bodfonl, Ma 
Ituckiiiffham, Stamford, ContwaUiK, 
Howard, Grpy.Paffet, RiTcri, Cccw« 
Ordered, that sir William Scroei 
JusliL-e of the King's Bench, do (in tla 



ihX I 



the king, of 10,000'. with two sufiicien 
to be hound U'ith him in 5,000^ a piec 
condititm, tliat he ahall attoid ujnui tl 
from lime to time, till he be diticharp 
lm|>oachment brought up fnmi the H 
CommoiDi. 

Then sir William Scioggi naa brougl 
bar ', liul afler he had kneeled, the L«n 
ceilortoM him, "That the House hidi 
Tliat he should enter into a recognii 
lO.OOU/. wilhlwosuretimtobe tMMiDd* 
in b,OO0l. a piece, to attend to tliia Hon 
tioH- to time, until he w-ai disrhaif;^ of 
IWM'binent." ,*nd asked him, " Viit 
i-oiild oftW two sureties as were ( 
sonsT" And he propounded Ihecariof 
anil :tlidd. and tf 



IP propounded 1] 
.1 the lord HatU 



V I.OI 



> I, 1681. 




The question n-as pinioumtTd, "' 
thereshotlbe now an addnss to the! 
Mispenil sir Williiuu Scro;?^ from ihee 
of lis plare, until his trial be over?" 1 
I ions question beius- put, " Whi-thertt 
limi sbaUbeDOtTputJ"' It was resulic 

'' Ihutatieutiiut, 
" Keiit, Salishiir\', niaftibury, Hun 
OatT, Ritert, £■•«. tHtainthnl, Mw 
dm. MaiirbeaFr. IlMbett, Howard, 
Vtfin. P. nitHtim. Cadifir, Rock 
Ctew*."' 

Horf E OF Conon, Jaaiiory 8 
< IMwte in the Comntmt on Ae Li 
{ cw w itnng Ltud Chief Jiu&cBScnigp 
% ll~i:^BB J.Mo. The cta{c agai 
I tUcl' jutOM !^c»«s I* al ooMnon-l 
\ «aiuK>-kw hMh. I take ii lobe treaM 
i pnam. anJ &« ic asMhcr: aniaftrioi 
] JMijm mc a ht^ riKc who* be i 
njanw*. aad nanf* the law. ia Bi 



ilieooBiiiiitted." How it came to 
r in lord Danby's case, and not in 
tX a stand. I would not have any 
nith the Lords, but out of fear of that 
It have our. privileges torn from us ; 
li Yos delivered in that conference rc- 
rd Danby, so pleasinsf to this House, 
in one instance, blemished by bailing' 
nd in another by not Kuspending him 
I would appoint therefore a com- 
repare the matter, that by Monday 
ou mayJie able to go to Conference 
ordsa&mtit. 

rof Lee. This u not the first time this 
18 be«n in this House : in the case of 
don** impeachment, the Lords would 
t bim before the Articles were brouc^ht 
EiOrda refused it, the Commons insist- 
and the consequence was, lord Cla- 
away, made his escape, and to salve 
Lords sent down a bill of banish- 
the case of lord Danby, the Com- 
ip articles of impeachment, which 
>directlv treason within the statute, 
Mr, and afW several Conferences, 
It was found oat ; which was a pro- 
rtlie parfiament. Now the Lords 
lat one parliament will correct the 
lotber ; and fefl us, that the Com- 
pAa great point, that an impeach- 
oontimie, though the parliament be 
or diiaolved. j&d if Hcroggs's own 
•ke him not withdraw, 3iey have 
olatioB that he must be continued 
of the Lords differed at the Confer- 
l it, as yon have heard.) Now it 
lUs parliament, the Lords go about 
■icRwthey think they did in the 
sas loth, the other day, to oppose 
I nsBiflr. &c But consider tnaL if 



Commons sent .up word to the Lords, '< That 
they were not bauable but by their consent." 
This was February 16, 1641. 

Sir Fr. Winninf^ton, I concur with Powle, 
" That the management of this business in the 
Lords HuiLse relatinjj; to Srroggs looks like 
an industrious disposition to break us.*' These 
prorecdings to me are wonderful. I woidd not 
invade the rights of tlie Lords in what they do- . 
They are now in tlieir judicial capacity as a 
court, and not in their legislative, and so wo 
may search the record, and take out. copies. 
The fact has ben stated, and I have been indus- 
trious to enquire into the reason. It is wonder- 
ful to all I speak wuh. It is said ** Their rea- 
sons are, that tliis cnarge is not treason ivithia 
the statute, and so it is discretionary with them, 
and they may alter tlieir order.*' fiut the sta- 
tute is out of their case. We shall show them 
they are in the wrong, as well as in Danby's 
case. But as for altering their order, we have 
as great right in the process and management 
of the impeachment as in the justice of 4t. 
Tlie reason is, that the person is only aninver- 
able for the crimes, ami I never heard that tlie 
persons that are to judge became bail for the 

t>ei'son to be tried. >V e are like to have admira- 
ble determinations. Our inheritance is right 
of process of the law, as well as in the ju(%- 
ment of the law. For the king to sequester 
him from his place they would not address 
for it, but leave it to Scroggs's modesty whe- 
ther he would exercise it, or no ; but the 
Lords will not commit him. What makes me 
stand up is, that we should not now lusike a 
doubt of what iTas always no doubt. There- 
fore I would not search tor precedents, whetlier 
it be our right or no, but to strengthen the opi- 
nion of the world, now tlie nation is upon its 
hist IcfTK. that we mav'avoid all cause of diflTe- 



S 1 5] STATE TltlAlJ^, St Ch arlss If. i6B0>^Pr$eieAigi i^ftSmi 



fkr John IVever. I lud oecmsioii to look upon 
the preoedesi of 50 Edw. 8, and it appears 
upon |be rolls, that lord Latimer upon the im- 
]ieachn)^nt of the Commons, was committed to 
the Marshahea, and he wnn bailed by five bi- 
shops, thrpc earls, fifteen barons, aoA thirteen 
Commons, f lere appears a rif^t in the Com- 
mons to his bailment, because the thirteen 
Commons became his bail by consent of the 
Hoase. 4 Rich. 2, lord Ferrers was bailed, 
hut it is not cei*tain whether the Commons bailed 
))im, but tlic Commons ahvays had a part in 
consenting to it. But tlicn^ is'a difTerenoe when 
toe chnrg^ is not from the Commons. In kinp 
James's time, in the impeachment against lora 
Bacon and sir John Beimet, 4cc. there were 
never any articles nufainst them from the Com- 
mons ; hut complaint nas made at aConference 
a'^ainst thcin, and the Lords formed the arti- 
cles ; but wlicn any articles bordered upon trea- 
ficin, as thess ar^lnst Scroggs do, toe Lords 
liave always sequesUrefl the [>ersou. 

Ordered, " That a Committee bo appointed 
to inspect the Journals of this House, and of 
the House o£ Lords, and precedents to justify 
and maintain, That the Lords om^t to commit 
persons to rafe custody, when unpeached for 
lii^h treason by the Commons in parliament." 

In two days after tlie parliament was pro- 
rosued to January SO, and soon afler was dis- 
solved by proclamation, and a new parliament 
was summoned to meet at Oxfbrd on March 91. 

House of Lords, March 124. 

The Answer of sir William 8croggs, knight, 
was read, as followeth : 

•* The ANS^VER of Sir WM. 8CR0GGS, knt. 
Chief Justice of his Majesty's Court of 
King's-bench, to the Articles of Impeach- 
ment tixhibited against him, by the Com- 
■ions of England in the late Parliament as- 
sembled. 

** Tlie said sir William Scroggs, by and 
under protestation, that there is no mamicr of 
high tri'iLSon, nor any overt act of Iiiffh treason, 
pai-ticularly alktlgcd or expresst^l m the said 
Articles of Imjicachment, to which the said 
William Htrroggs can or is Innmd by law to 
make any Answer unto ; and saving to him- 
self (and which he prav<*th may be saved to 
him), both now and at all times liereaflcr, all 
and all manner of h 'netit anil a'.lv;uita<^^ of ex- 
eejition to the ini^n^Kriciicy of thf^ sam Artit'les 
hi poi!it t)f law, as wr-ll for that there is no oveil 
act of trenson expi-CKstnl then'in, as ihr all other 
the dcfei-t< herein a|n»earing : for olea thtTPto, 
he s;ilth, That he is in no \yhnr guilty of all or 
any the crimes, frflences, or misdemeanors, of 
what nature, kind, or Quality w>ever, bj' the 
said Articles of Inipeacnment charged u;,>on 
hhn, in manner and f<trm as in and by the said 
Articles is supposed ; which he id ready to aver 
and prove, as tliis honourable House shall 
i»«rat and humbly mibmifieth himself and 
the JMIioe of his cause to this most honomble 



House ; and prSTSth to W dbo hai y 
prenuses, and to be hence 4 ismi» se u , 
quitted of all the matters, crinsa, mil 
ors, and offeaoes, io and by the saidA 
Impeachment charged upon hmk^ dec 

««WiLL.Scao 

After this, a PtetitioD of sir Wm. 
was read. 



(( 



To the Right Hononrahle the Lords 
and Temnoral in this present Pi 
assemblea. • The bumUe Petitk 
William Scrogffs,kiiiffht, Lord C 
tice of his Miyesty's Court o 
Bench. 

** Sheweth ; That your mtitioner, 
parliamentft was hupeached before 3 
8hi])s, by the House of Commons, o 
Articles, stiled High Treason, and oti 
crimes and misdemeanors. To which 
titioner hath now, with the first opr 
put in his Answer into this hononraDl 
Your petitioner humbly prays, that y^ 
ships n'ould be pleased to appoint so 
day, for this present House of Con 
reply ; that so a conrenient day ma 
pomted for the hearing of the cause, t 
petitioner may no longer he under the 
of the word high treason. And yi 
tioner, as in duty bound, shall ever un 

«• Will. Sea 

Ordtred, That the copies of this Ai 
Petition shall be scut to the House 
mens. 

But the parliament being soon a 
rogued, thisaflair was drop|)ed; ho 
was thought proper to remove Scro| 
being C*h^ Justice ; which was done 
the marks of favour and respect, beinj 
a pension for life. But a parliament 
sure did not hinder the court from ( 
others, who had been censured a fittk 
as may appear by these Votes of llie 1 
Conunons. 

October 29, 1680. 

Resolved, «* Hiat sir Francis Wil 
promoting and presenting to his km 
address, expressing an abhorrence to 
his majesty for the calling and Hitting 
liaments, Katli betrayed the undoubted 
the subjects of England.'* 

Ordered, " That sir Francis Withe 
nelled this House for tliis high crime ; 
lie receive his Sentence at the bar of tb 

* Mr. Hatsell (Kotos to 4 Precede] 
144, 145, 156, 199,) rehes very mi 
this case in refutation of Blarkstone^i 
that a comnHnier cannot be impcftchi 
the Lords for an v cajntal offence. As ' 
see the Case of Edward Fitx-harris, a 
infra. 

t As to the continuance of pariii 
impeadunents notwithstanding proreg 
die Case of the earl of Danby, m/^-ii. 



Iirl STIkTE TRIALS. 32 Ch AELKS II. 1 G^O.-^Lord Chit/ Justice Scr&ggi. [ 1 1 8 

horn Mr. Speaker.*'* (Which *■ petitioning for the sitting of this parliament, 
Kdingly.) nath betrayed the rights of die subject.'' 



U iweived arcortmgjy. 

Niwember 13, 1680. 

BosKred, ** Thai gu* Geosige Jefferies,t Re- 
eorkrof Loodon, by trailucing and obstructing 

' *'The merit of this raised him soon to be 
tjs4^ ; for, indeed, he bad no other merit." 
Jfaaet 

f The following is Roger North's account of 
All asatter : *' The next case, that came on, 
was that of air Georee Jeflferies, the Recorder 
tf Loodoa, which had as poor a come-oif. Our 
Eirtory [Kemietl here tells us that he u-as re- 
Bored from his lleoordersliip by vote, which 
tis not so, as will appear. But there uas a trick 
d« in that matter ; for the party hail a great 
nbd to gd air George IVeby m to be Rc- 
Mder of London ; for he was a tnisty confident 
rfftctioD. It seems that, in conrlusion, Kir 
Gewge Jefferiea had a rei)riinand upon Iiis 
kaees at the bar, and so came off for his crime 
rfab b uniu g ; which was thought a fair com- 
pssitiaii, after such discourse as bad been of im- 
feachin^ their heads off. But the preliminary 
Mute aui mm, was that he should snr- 
placc of Recorder, to which, in the 
, he agreed, and did according! v, and (as 
VH oeDMrted) Treby succeeded him. But 
lUi oAcnoe of his was, bv the order of tlie 
intimated to the lord mayor and alder- 
, that tfacnr might not fi-ant'a cause to re- 
upon a Maaoamus, in case they should 
npan hacve turned him out ; for it' lie hatl 
not eonaplied, but stood on his right, he must 
hcfehad all the defences the law allowed, and 
■Ma have argued auch a matter, returned, not 
talc a ■rfkiient cause ; and the judges would 
IttfcdaaakimT^t. This consideration made 
Ar party take up the intimidating process, and 
gtm fmmmkm by a surrender without suit in 
Mw. 7%t great difficulty, that ky upon the 
■piiilB of sir Geoige Jefferies, was to come off 
weB vnA the king ; lest this oomponnditig 
with the ikmunons should confonnd him at 
Court. Therefore he begged of his majesty 
that he would girc him l^Te to surrender his 
dbee ; which 3ie long was loth to do, because 
k was of aueh an over-ruling genius, and 
behariear towards men whom lie prc- 
' to awe, as enabled him to be very uiHu- 
iameog the dtisena, and, in other respects, 
eaoU Bot hj so well employed. He beseeched, 
aaueated, apd importuned the king' so very 
mmhj that, at last, the king granted hia re- 
tuest; ao, havinig his BU^festy's leave to resign, 
ka took his chiding, and was, as he tliou^it, 
ffcf «i M Curiu. But the ever foot^tious king 
vaa pleased to laugh and say tliat sir Georg«*. 
' '^ ' was not fMrtiament |Nroof ; and, how- 
he found interest in corners ulniut tlie 
the king never had a real value fur htm 
* Examen, p. 550. 
Sir John Reresby gives us tiie following par- 
iiaiAM respecting 'Jefleries : 
«« The nest day IhappoMdtediatwhh air 

3 



Ordered, *< That an humble address be made 
to his majesty, to remove sir George Jefieries 
out of all public office's." 

James Smith, the lord m&^'or of London, whom 
I had tbrincTly knoTin mtiinately well, and 
who was of a very loyal club in the city, where 
I use<ltogo, wfiile'the fanatic Plot was in 
agitation. This gentleman eoniplained to me, 
that he enjoyed no more than the hare title of 
lord mayor, the loi-d chief justice Jefferies 
usurping the |K>wrr ; that the city hafl no sort 
of it)tf.Tcoui :$e with the king, but by the inter- 
vciiiion (d* that lord ; that wliatever was wc^il 
done in the city, was attributed to his inlluence 
and niauageinVnt ; and that himself and the 
aldermen were by the Court looked upon no 
better tlian his tools : that upon all occasions 
his lordship was so forgetful of die higli dignity 
of the city as to use liim and his brethren with 
contempt ; iii fine, that the loni chief justice 
was to l)e pitied ; that his liaughtincss would 
be the ruin of him ; and that he actually in- 
tended to let the king into the m^-stcr}* ol' these 
tilings; buttliat he thought the present time 
was ntit altogether so proper, seeing a remon- 
strance of this tendency might be construed 
into mutiny and disaffection. I answered, that 
tlie king was too well acquainted with the lord 
itinyor's seiTices and integrity to sus^kx^ him 
of that, and that, in my opinion, now was the 
fittest time for exposing a man ui that credit at 
court ; for that now the greatest notice wouh I 
be takeu of aU siicdi grievances. Indeed 1 was 
sorry at my hcait to see such good men dissa- 
tisfied in any degree ; but I was as glad to find 
this proud man seen tiinmgh ; for he had to 
my knowledge used the city of York as scur- 
vify as it was iHWsible tor him to use the 
city of liondon. r or at York he put out fire 
alHcrmcu though he had soleiuuly engaged to 
keep them in, and that, uitiioat so much as 
allowing them to be heard as to the crimes they 
stood accused of. llie lord mayor said the 
very 8ain<; had been frequently* practised in 
London, and that many had been turned out of 
their employ monts withom so much as being 
suffered to make their defence. In short, I 
was at the very same time told by one of Ae 
lieutenancy of the city, that bhould the duke 
of Monmouth give a lilow to the king's forces, 
it was much to be feuri-d there would be an in- 
surrection in Ix)ndon." 

^* A tew days uiierward, I dined with the 
lord Clian<!el|(»r, when; the lord mayor of Lon^ 
don was a guest, and (»onic other gentlemen. 
His lordship huriiig, according to custom, 
drank deep at dinner, called for one Mount- 
fort, a gentleman of his, %v-ho hod boon a co- 
median, an ex-crl1f nt mimic ; and to tlivcrt the 
conip'.uiy, as he was pleaded to term it, he made 
him plead before him in a feigned cause, during 
whicli he aped all the gri^t lawyers of the age, 
in their tone of voiee, and ia toeir action and 



f 19] STATE TRIALS, 32 CuARtES ll.iGBO.'^PrdeefidiMga egmuui 



Sheridan, whose discharge by baron Weston 
f^re offence to the House of Commons, appears 
to have been for breach of priFilege, continued 
in custody to which he had been previously com- 
mitted, but for what offence does not distinctly 
appear. 

The House of Commons on December 9th, 
1680, ordered that he should be forthwith 
brought in the custody of the Serjeant at Arms 
to the bar of the House. This was accordingly 
done, and he was examined concerning Dow- 
dd, the priest, Sec, Afler which it was ordered, 
that he should continue in custody of the Ser- 
jeant at Arms during the pleasure of the House. 
On the next day, Friday, the 10th, a report 
was made upon his papers and he was again 
examined. On Wednesday, the I5th, he was 
at his own desire again admitted to the House 
and examined. 

On Thursday December 30th, 1680, and 
Ifae next day, the following debates took place 
i>ft his habeas corpus : 

On Mr. Sheridan's Habeas Corpus. 

Mr. Btttcawcn, Mr. Sheridan stands com- 
mitted, as a judgment of the House, for 
breach of privilege. It seems to me, that 
bis commitment does run on the hinge of 
an act of court in a criminal cause, which 
we may suppose in execution, where a Ha- 
baes Corpus does not lie, and he is not bail- 
aUe, and they will not discbarge him in a 
court of criimual causes. I tliink his com- 
mitment stands good, and you are to consider 
theprivilege of the House of Commons. 

The Speaker, Give me leave to ^ state the 
matter. The thing, in fact, Ftunds thus. She- 
ridan and Day ^vere committed by your order 
the ninth of December ; they were brought to 
the bar the same day, and oniered to continue 
in custody during the pleasure of the House, 
and no person to be aamitted to come to him 
unless it were with necessaries. Then that 
order was mitigated, aiid\'ou ordered him to 
be taken into custody. Then you ordered a 



gesture of body, to the very great ridicule not 
only of the lawyers, but oi'thc law itself, which, 
to me, did not seem altogetlier so prudent in a 
man of his lolly station in the law ; diverting 
it certainly was, but prudent in the Lord High 
Chancellor, I shall never think it.'* *< To resume 
the Lord Chancellor once again, he had now 
like to have died of a fit of the stone, which he 
virtuously brought upon himself by a furious 
debauch of wine, at Mr. alderman Duncomb*s ; 
where be, the Lord Treasurer, and others drank 
tbcmsclvcs into that height of frenzy, tliat, 
among friends, it was whispered they had 
stripped into their shirts, and that, had not an 
ftccioent pre> ented them, they had got up on a 
sign post, to drink the king s health ; which 
was tne subject of much (ferision, to say no 
worse." 

Seemore concerning him in this Collection 
hi tboae Trials in which he presided when Chief 



cominittee to ezaniine him aiid Wilaoa. 
act directs, *^ That the judges, widdn i 
time, grant a Habeas Corpus, when 6 
and they are required to bail where d 
gives that Uberty." Now the questk 
whether a Habeas Corpus ties in case of 

!rour commitments, tne parliament sil 
And he reads the Act.) In the Act fa 
qothing relates to . parliament-oonmiti 
The '« Head-Court" IS the KmgVBeod 
this seems not to relate to the pariiament 
is a commitment of parliament, and if i 
juf Iges cannot grant a Habeas Corpus. 

Serjeant Majfnard, You are going u 
sudden to give an opinion in a thin 
tlioughtof before. As I take it, his H 
Corpus is granted : now what is to be di 
this case ? J desire not to be concluded ii 
thing I shall now say, but I will tell yoi 
apprehension ; where shall he go to be t 
but to this House ? Your remedy for brei 
your privilege is conunitment, and no i 
can be brought against either the Lor 
Commons. When lyou commit a man, y 
not always express the cause ; if the jt 
bail him, he is gone, and there is an a 
him. I would have this matter let alo» 
to-morrow. 

Serjeant 5/rifiger. Thisb a matter of i 
concern. I would consider whether a j 
can deny a Habeas Corpus. By the act, 
jailor is to pay the poialty of 500/. upon 
davit '« That he is refused the copy ol 
commitment."— So far a judge may safd] 
But the great pouit is, whether the judge 
discharge him. If so, farewell all the p 
leges of the Commons ! When the m 
comes to a Habeas Corpus, the judges ma 
informed how he stands committed. ] 
said, <' That this Sheridan is a second ( 
man," and, if so, let him be hanged as he 
I would take time to consider this, and I 
lieve the opinion of this House will go a a 
way witli the judges. 

. Sir IViliiam Jonet, This matter is of g 
concernment ; it concerns the privilege 
both Houses, and next, the Uberty of the ! 
ject ; and 1 would not have you do any tl 
in it hastily ; but to appouit a coninutte 
consider it, will seem to make the thing 
difficult ; but yet you are not ready to com 
a resolution now. I must deny ^' that 
judge must grant a Habeas Corpus to 
man." This is not a case at common-] 
but you see that sometimes in di^rction 
merly they required a copy of the oomi 
ment But by this act, the judges gran 
Habeas Corpus upon a copy of tne conu 
ment. In this case, the judge is in no dan 
upon refusing the Habeas Corpus. The i 
jeantsays ^^ Sheridan sent to him. for a o 
of his commitment," and the seijeant has 
granted it to him ; so the Habeas Corpus is 
yet granted. If you please, I wouki not com 
thisj but adjourn the consideration of it. '. 

8ur FrancU Winninf^ion, All I move fm 
thisy «' That no memorial nor entry be m 



STATE TRIALS, 32 Ch arleb II. 168O.— iLorrf Chief Justice Scroggi. [224 



TOW boolct for the present;" bat upon 
'liole fmne of the act, 1 sec no Hal>eas 
M lies upon m comnntment of parliament, 
j. Maynard, I am clearly (>f opinion that 
( a cmiiNO Oiit of the statute of Habeas 
u. That law was nerer intended otber- 
han for commitment from inferior courts, 
ot pwliametit. All bail is in order to trial ; 

an act of parliament says " A lower 
," it never intends a hither. A commit- 
is not only a judgment of this House, but 
ecotion : and though the statute does not 
iflo the pariiamcnt, other courts shall not 
; it in judgment and execution . There can 
I tiki of <Hie committed from this House, 
I this place, and this act is not intended for 
■Imenta from hence. 

Frmmcii Winnin^lon, It is plain the par- 
■t b not to be mc]ude<l by this act ; for 
wliament was informeil, that there was a 
sfC^orptis to remore a man from the 
!r, and they sent him to Jersey w Gucm- 
Sa it plainly shows that it was for the 
ia^ erilfiof removins^ men out of the reach 
alwaa Corpus, that this bill was formerly 
[^ in ; and that it was never intended 
■t oommitnients of the House of Com - 
I. A man is committed here in execution, 
i was never intended that injustice should 
nvra this House. As Mr. Slieridan has 
Md himiielf of bringing this, I could m ish 
anld of his other crimes also. 
r nfiMoi Lee, Consider the advantage of 
B^thb qnestion, movetf fn»m the Imr by 
a, vis. **' That no Habeas Corpus does lie 
If Aesittinir of tliis Honse.'* This court 
■fcrior Gonrt, and no inferior jurJs<liction. 
tiitaetf why yon should make any vote in 
OK. The judge has the law before him, 
yiv rote cannot aher it. You may be prc- 
nibf fiubjectingvour vote to the interpre- 
M mm flcmnning or the judges, 
r WilUmm PuUeney. In this case, a vote is 
■ary, else the judges will not know what 
aqght to do, and what not. You have 
L ^ That the judges cannot grant a H^- 
Carpoa against tlie common nrivileges of 
Bonac." I woukl have the juuges take no- 
ti it, and therefore I am for a vote. I do 
that this House has |)ower to commit 
K of breach of privilege, and I would 
it in the vote. 
r. Ptftt/ FoUy. I have looked over the act, 
m of opinion that a Habeas Corpus does 
baa this case, and may be refused in case 
ba tequired by this act. A Halieas 
never granted upon a commitment 
fomMTly; no precedent can be 
mti it.' Yon commit for contempt, and it 
|flt is anch case* where the party is baila- 
* *^ ima pot a question, 1 would be loth to 

(which 'is our only power) 

in commitments upon impeach- 

we have power to send for all 



Thb case b particular as to 
|te»aBd b 9ul tf tht powtr of tb« 



act of Habeas Corpus ; and why will you 
make any question upon it, upon general com« 
mitments of tlie House. 

On the latter of the abovcraeniioued day8| 
his case was thus spoken ol*: 

Serjeant Meynard supposed Sheridan should 
bring an action against tbe judge, if your com- 
mitment be for breach of privUege, no inferior 
court will iudge of it; but if the commitment 
be not tor bivaeh of privilege, you may mend it. 

Mr. UarborU, I appeid to you, it^erer you 
discharge a man that does not acknowledge the 
jinisdiction of the House, and acknowledge his 
fault ? Till he has done so, let him remain in 
custody. 

The Speaker, If you should do as Maynard 
moves, your order for breach of privilege jiB^ 
as if after commitment they should mend the 
reconi in W€*strninster-hall. Sheridan was in 
custody before tlie paper that reflected upon 
your members, and broke your privileges, was 
round. So the first order for commitment was 
upon anotlier occasion. 

Mr. Paul Foley. Though Sheridan was sent 
for in custody to the bar, yet the continuation 
of him in custody was for breach of privilege. 

Sir nomas Lee, I would have it considered 
how you win mend a commitment afterwards ; 
if he has a copy of his commitment, general, 
and now comes an amendment of the commit- 
ment, for breach of privilege, a month after t 
The general debate ran, ** That he held a dan- 
gerous correspondence with the duke of Yorir, 
and was a second Coleman.'' Gentlemen wera 
sent to search his papers, and found a paper in 
his closet not printed nor published. JPray let 
the thing stand upon its own foundation, with- 
out niemling it. 

Sir ¥r. Winnington. The famous case of 
lord Shaftsbury, when upon a commitment by 
the Lords he was brought by Habeas Corpus 
to the King's-bcnch bar, there was no return 
made, and he i^-as discliarged udente Farlio' 
mento. If a rule of court he ill-entered, I ap- 
peal to you, if it be not mended every day m 
an inferior court ? 

Mr. Fowle, Whoever, in thb place, speaks 
for limitimr your power is not so favourably 
heard, as he that speaks to enlarge it. * State 
* super vias antiquas.* I am Afraid we ara 
about removing the ancient land-marks, which 
may return to their old bounds again. Your 
power is part of the judicial, and part of tha 
legislative authority, audit is but part only. 
Anciently the judicial power of parliament was 
exercisea by King, Lords, and Commons ; but 
for some ages past, we, and the Lords, by tacit 
consent, have had a separate jurisdiction in 
that point, and they punish for their breachea 
of privilege, and we fervours. Thb case of 
Sheridan, I confess, goes beyond jronr ancient 
privilege ; they took no jurisdiction upon them- 
selves, but either did send to the Lords if the 
thing desen'ed an impeachment, or dismissed 
it to the law in the lower courts at West- 
uuniter, I do U9i take the words ia tha papar 



993]. STATE ntlALS, 33 CBAtLisII.l6SI'-A«HiJI(|r^grtMl. fOt 

fcanl in Shnidau's study, to be > brtsnA tit 
pnviltm amuKt yoor memben, bo bnring not 

gildiabed Uie paper. Here is nutfaer actual 
KM igiiiHt vour uanbcn, nor Buh* of bw. 
ff the eouna (elmr '- — 



r cumot reform your a. .., 
it b fit jmi sbonld do it vuuneh-ea. If this 
■n be Mt ID cuitndy fnroreadi of privilege, 
I maU rdcue bim, ud M tiut are as oom* 
■imd, Hd rrfbnn your own error. 

Oh lUdw Jwuuy the Ttb; 166), tfae 
Bowe WM mforond, dxttawnt of tUbeu 
Cwp^ had been Greeted lo the Serjeant of the 
Home, to brio? lite bodt of Ur. Ifteridan to 
]ttr. Jnitice Raymond ■ booie in ChBocery 

BIr. Awrsaien. Tfae judge might not hare 
fpMeMfbruhehBBdnne. It may be, the Ser- 
jautthadather priaDnera, and your commit- 
mat of Bberidan ii not for bmcb of pTiTil«^. 
HeiaaSn^eaMalAniuithoiwb heBllciid3i« 
Houh; aottdoaaaotapjiearbtRthattheSer- 
Jaaat ta^ bne Bberidan m cunody upon ano- 
Atr wanaat. I irotdd be careful'to preaene 
die^rrilegQaf IheHouieOD the one hand, a5d 
" ~ loAeother. I woold hft?e 

e anaceounl, " That 
y, but that be fcnotrc 
■et that he haa fahn kgally, Ike." 



Um HabMa CaqniB OD Ae oth 
Ae Be^eantsire the jadse m 
be h>i Sheridan in eustody, 1 



Sir IhmM Ow^i. Lord ^atbdHir* •«. 
mDutled by parijuoent, and Ukik oui bu Ha- 
MaConna, botAejudgeai had the diMteiioa 
ronaiHl kimi and a Habeas Corp iit dnot 
m, f^ny, or in execution ud 
ttc CoBimilmeMs of ^ 



aporiaedafittlheSeQMntuHi} carr^ tShundaa 
tothejnlg«wMilbeaHiM<CbiB Cfliiiminnagt. 
Sir fVaadi WiuuMgim, I take this businoi 
tobeworth yoor eonidaatHu. Tke a^tL 
lord ShafUniry la not Ah «aae. Ttte mtt 
HafceaaCaqiMwiamdeginGe that time. Oa 
iheothv hand it was rsreh- Ibund, that ap«- 
I (an, ownwitMd by either Uoiue, has b««n atat. 
fbrlytliejudgn. As 1 would ditjusiit-etote 
Mabject, so I would not, oul of MnipIiiuuU, « 
up yoMr privikg^e. I wnutd adjourn lhi« ' 
till-ta BMRvw, and go upon llut Linunes: 
day. I apeak not lor an order, but h 
Acre is a penalty in the statute, I w<iulil con. 
aider of it tor the Seoeaul'a sake. 

Oi«y aaya it was a^fouraed to the nrJtl dty, 
but he does not make mention of an* fiiriliaF 
debate concemiog it during the cniitinu.iDCw «f 
that naiKaniant, which was shortly aAo-wudi 
diMifred. 



d.£ue 



277. Proceedings in Parliament against Edward Fitzharris, upon 
an Impeachment for High Treason : 3S Chabi,£s II. a. & 
1681. [Journals of both Houses. 8 Grey's Debates, 9&S> 

4 Cobb. Pari. Hist 1314.] 



HoD9G OF CouMONs, Marrk U, 1681. 
Sir GeoTE^ Trcby aoouaiDtii the Hon«e, That 
he, together with sir Roucrt ClaytoD, htut takm 
the ExanuDation of Edward Pitzharna, relnting 



!flte Examination of Edward FrrSHUiui, 
lating to the Popiah Pbt. 
Who suth, Thuthe wBsbom In Ireland, and 
is the SOD of ^i E Jnard Fitzharris ; and thai he 
was bred, and is, a Roman Catholic ; Tlint. in 
J669, he went first out of Ireland ; and then 
went into France, to learn the hngHBg-e, as an 
accomplishment, being ttttn of the b^ of 14 

£3an. In ISbS he returned tlience, tlirotu'h 
^ Dgland, into Ireland ; wh»e he contiiiDedtill 
tbmii 16C8, when )i* went to Prague, in order 
toactretbe emperor in hts war in Hungary; 
hut, there then finding a peace cnncluded, he 
caaie, by the way of F&nders, into England. 

AadiLea sb Georee Hamilton bring about 
JjWi^ a regiment of 1,500 tbot in liebnd, for 
«W French kine's service, thi^ eiaminant ob- 
^wadftomairGeorgeHauinton a commission 
.tt l>e ca iKaip oTone of the companies in that re- 
InMntobetaiMdi wbeteupoa he went ioto 



Ireland, raised ttie company, and conducfed 
them into Fhuicc : and , soon atW his landing 
thrrc', he was l-eformed, oiid iluM-hnrtTud of bM 
said L-ommand : wlicteupon lie wuii lo Paris } 
aii<l, having but little money, he lived thci* Ht- 
ficuldy uIkiliI a year. 

In 107!, gomg ubont tolakehia kai« tf 
Father Oou^, an English Priest at n^ |w 
saithtotfais purpose: "YonaregoinglbrfiiR 
land ; wilbin thnetwoor three yean youwl 
see the catholic religion estabtisbMl tjterp, asK 
isinPmuce." Theexaraioant asking iiim bow 
that could be, sim« the king was a pretei ' 
he answered; " If the kine woidd not a 
there » B4 orders taken, and thinga so lad, 4#i 
lieshonIdbetakenolf,orldUed: IhatAaJ^B 
vf York was a catholic; and, in hia nln, vHk) 
wonhj be no dilficul^ of d<ri^ it." Tkafta^'^ 
minantthen asking him, bow long the diAe 
had been a cathoUc ; he aoawemd, '■ That (itt 
tiaecn mother had made him so." He fuithcr 
said, " lliBt the declaration of iudulg«tea MS i 
in order to that, and of intmdudng tlw vdUft ■ 
reli^on in England : and that, lotlieaaaaaMi 
t&e war was made againat HoHaad : |br4M 
Holland was a nest of beretict ; Md, tf *if 
were dmtroyed, the work wordd be eaaSv AM 
in England ; because the Eiq;liafa, «r Bm^ < 
Pratestants, he said, wonld then bava no Msi^ 



tmce ftuB •broad:" And be aaid, ' 



STATE TRIALS, 33 Chahles II. \6si.^Edtcard Fitzharris. 



[226 



came Q?er to Dover about this de- 

camiiianl, comii^ oyer about the end 
r 1672 ahout Fcbruar}' following, had 
skm to be lieuteuant of captain Sy- 
ooin|Muiy, in the duke oi' Albemarle's 

which waa then raisei], being one of 
tents in tlie army, which was the 
following' mustered at Blackheath: 
^, He knew many of the lieutenant- 
uaiors, captains, and officers of that 
e Romau Catholics, 
terwards, the act passing to disable 
ilholics to bear office, he and others 
rere forced to quit their commands : 

That the common intelligence and 
nong them was, That that army was 
h a design to brin"^ hi and settle the 
atholic religion in £nglan<l ; for which 
ivasion of Holland, and the awing of 
(f London, were fit means. 
^ measures tliat were thus taken being 
V means of the peace, and by the 
V«>rk*s, as weU as these, and oiher 
inittiog all commands ; and the king 
the expectations they had from him ; 
in Catholics, that were engaged in this 
?ame to a resolution to destroy the 
'ather Pkrrcy, confessor to Don Fran- 
lelo, the Portuguese ambassador, told 
linantin 1673 ; and if all other means 
! queen would procure the doing of it. 

says, That this Father used tlus con- 
Mranls him, because he was well ac- 
irith him, and used to confess to him ; 
'athrr re(ieated the same discourse to 
e summer 1678, with more assurance ; 
Rn, *' That the business was now near, 
laaU soon see it done." 

iptil 1679, Blarquis Montecuculy, 
n the duke of Moilena, after having 
a to secrecy, tokl him, that if he would 
e tlie killing the king, either in his ohh 
r hy any other, that he should have 
which ne refusing, the Marquis said, 
wiB not, tlie duchess of Mazareenc 
ids poiaonintf' as well as her sister ; and 
~y when toe king comes there, will 



if Ezaminant had a great acquaint - 
> die nid Marquis, having first met 
vbI times at the duchess of York's 
and aftrrwards let him a house, and 
the ftimiture therein; and has very 
a, drank, and walked with him : and 
ps at the same time told him. That, 
H the king, the army in Flanders, 
I HBBoent to France, was to come over 
Ind to dertroy the l^tjtcstant party ; 
» levving in Italy, to recruit 
in the place ot tliose that 
over into England : 
that time, Siere should be uo 
m England: and tliat the 
was privy to all these designs. 

! U Ae «id rf FiUhirris's Trial. 



That, about April 1680 he met Kelly the 
Priest ; who there, in discourse with him, owned, 
That he was one of the persons concerned in the 
murder of sir Edmundbury Godfrey; and that 
the same was done much in the manner as 
Prance* had related it. 

lliis Examinant hath known Kelly about 12 
years ; in part of which time he has had inti« 
mate conversation with him, and hath some-^ 
times confessed to him. 

That he hatli been acquainted 6 or 7 years 
with M. De Puy, a servant to the duko of 
York: and that, soon after the murder of sir 
Edmundbur\ Godfrey, this Do Puy told this 
Exaniinant^That thai murder was consiUted at 
Windsor. 

And, about the same time, said. That tha 
duke was vi'ir desirous to come to the crown $ 
tor that the king was imcoiiain, and did not 
kee[) touch with them : and that De Puy said, 
there was a necessity of taking off the king \ 
and that it would be soon done. 

That the duke of York having an estate ia 
Ireland, a part of which was this Examinant's 
father's ; and this Examinant, bein^ acquainted 
with Father BedingHeld, asked lum, now he 
could give absolution to tlie duke, till he had 
made restitution. The Father said, ** That 
every penitent was supposed to know his own 
sins, and to make them known to his confess- 
or," To which this Examinant replying, with 
some warmth, ** But, since you know it, you 
ought to take notice thereof;" the Father 
answered, " J'e not angry ; for, ere it be long 
you may be in a better condition.'* 

March 1680, he went to Paris, to compound 
a debt he owed there, staying tliere about eight 
days : Where meeting *FaUier Patrick, who 
well knew this Examinant*s father and friends, 
and this Examinant talking of a rupture that 
might be between England and France; he 
said, ** The French intended in such c»se, to 
send Marshal Belfonds into Ireland with an 
army of 10,000 foot, and ^,000 horse, with 
arms and ammunition for 30,000 men more, to 
be raised in Ireland :" and the Father promised 
this Examinant a regiment of the men so to 
be raised and armed in Ireland : and the design 
was, to restore that kingilom to its former 
owners, subject to the French. 

He also desired him to send him all the libels 
that came out in London : and said, ** That 
libelling the king, and the government, was a 
thing necessary to be done, m order to distaste 
the king, and make him afraid and jealous of 
hispeoplc." 

That he knew Mr. Everard at Paris in 1665 ; 
and hath siince continueil and increased his ac« 
ouaintance with him ; that the opinion of Fa- 
ttier Patrick was an encouragement to him to 
correspond and concur with Air. Everard, at 
to the libel lately written by Mr. Everard. 
Capt* 10 Martii, 1681, coram Rob. Clayton^ 
Geo. Treby. 

* As to this man, see vol, 7, pp. 157, VV8, of 
this Collection. 

Q 



K7] STATE TRIALS, 33 Charles II. iSsi.^ProceedipgM against 
As soon as the ExamiDation was read, 



[i28 



Sir John Hat lop moved that it might be print- 
ed, to shew the \^'orld the devilish conspiracies 
of the papists. 

Sir Wiiiiam Jones. I like the motion well. 
There is nothing in this paper, but what 
is fit to be printed ; and what fully makes 
out what ^e have heard before, and be- 
cause we all know, that, since lord Stafford's 
Trial, people have been preavailed upon to 
bdieve the plot not true. Tliis paper confirms 
Oates's, Bedlow's, and Prance's intormations ; 
but I would not have that ]iapef printed which 
reflects upon the kins;. 

Mr. Secretary Jenkins. I will not trouble 
you, but with what i>art 1 hail in this affair. 



master, in the character I bear under him ; ad 
I will not go on the message.* 
A great cry, ** To the bar, to the bar." 
Sir ThonioM Lee. I would not hmve said one 
word, but that the very being of the pn&p 
ment is in the case. Itistt» uo end to sit here 
any longer, if ^his be suffered. Jenkiiis had 
no ground or reason to bring the lung's maMi 
in (piestion, nor was there any reflection upon 
his majesty, or Jenkins, in sending bim imk 
the impeachment. But, for Jenkms to «y, 
" Do what you will with me, I will not gs 
with the message *.*' Let his words be flnt m* 
serted, and read to vou, before he explain tha/ff 
according to the order of the House. 

Sir George Hunger ford. I never fanrd miA 
words uttered in parliament before, ** That Ikt 



The scandalous |iaper reflecting upon the king whole House of Commons should reflect vpfli 
was read over to his majesty oy ^Valler ; the king in sending him with the metngc^" 



whereupon I issued out wan'anLs to apprehend 
Fitzharris, !kc. and ^\'allcr saw the execution 
of them. 

Sir F. irinn<fi/?{un. This is of great import- 
ance, and in it we oui>;lit to acquit ourselves 
like wise men. We, that come out of the 
country, hear that the treasonable paper should 
have llieen sent to many gentlemen, and then 
they should have been seized ajton as traitors 
in the conspiracy in tills plot. All is now at 
stake ; therefore how lung or short a time we 
are tn sit here, (the tniojUT, Harrison, that was 
seized, said, *■' \\'e should have other guards 
at Oxl'nrd than ^ve hail al "Westminster,") let 



and ^* that he will not obey your coniiiiaiiB." 
Pray call him to the bar. 

At which there was a loud cry, ^* To tfie btfr 
&c.'' 

Mr. Trenchard. The House will grow eoo- 
temptible to the extreniest degree, al this nie. 
Such a thing was never before in puiouneBl; 

* 1 bishop Burnet ^vcs the following chlF 
ractor of hiin : ""• Jenkins, now made Secielaij 
of Stale, was the chief manager for the eonit, 
apiinst tlie Bill of Exclusion : he was a mM 
of .111 e\oii!p)nry lit'o, and considerably leaned; 
but Ik wii^ (lull ;.nd slow : he was suspected of 
not o;ii- coiiraifr- lessen. Tlii«; heinij our case, leaikinij to popt-ry, thousrh very unjustly ; Iwl 



\k t IKS t>o to rlie holtnni of this bns'uiess of Fitz- 
hurris. It lias hoeii movrd, " Thot he should 
Ixj sen tor hither;" but we have exucTiHue, 
thui. ulu n ouco an aceusation in parhaiiK'nt is 
ni;aiii>t a ma^i upon record, and in the greatcrsi 
roiirl in the kingdom made known, mnlefactnrs 
h.ivr nut l>i I'U cleared, and have not had Justice; 
ihcrefore I niovo, *• That vou will take care 



p. 3r'2, there is a l-^lt-.T from sir liColine Jen- 
kins, dated the Jl'.t of Marrh, lodo, in which 
lliM t:ii»» ni.'iri 1»r itnpeaeheif of hiifh-trta-son," is the l'«illt»\*iriij;irconnt (^f himself : " His ma* 
and, it ni.n be. then he ^t ill toll you all. ' jt^sty hu*h, up'ni my mdst humble and eraJ 

im{H rtnnate suit, u'i^ t'"n m(r leave in regard of 



he wps 5i'i oii euTV iiunetilio of the Church of 
Eniiflaml lo siipcrstitK.n ; and was a great as- 
serlor of tlio \\\\ ino ri;;"ht of monarchy, and ww 
frr rarrvincf the j'r«^r>ti;^ilive high : he neitha 
S|K»ki. i'«»r v.Tote wi II." Historj' of his Om 
Times, vo!. 1, ii. 4 f.l.— In BidstrTKie'sMemoin, 



Sir 1x0*1. C fay for*. When Mr. Heeorder and 
mvself examined Fiizharris in >ew^l^\te, he 
asked 
sav 
not 

counse 
trea: 
w 

and 

next day ut'ier he | lomivti he wtmld, \\v uas 
vemoveil out ofoiu* i«'aeii lo tht* T*»wer. 

Onltriil. •• Tlu-^t ibc v.iiJ Kxauiinaiiun be 
fbltiiwitli printtd.'* 



ly iu\;!;]i, ii> n-.-ii;*!! niv iv.>sl of ^t»cix*tar}', and 
ath lit.'^eil it uimn my. Godohthin. Ml 



mv 

h 




I 



mallei* iun oiisirui'lim.". {h*'\ can invent, npot 
an ivicidiHt ut c^r.rt.'*— Ipen this, Mr. HatseO 
obsorv'.^^, *■ W 1» -.'vor iviM n-eollii't the proceed- 
ij»U^s, f;ml\vi.ro p-iv-iT ^'i^ at I hi"? period, with 




stateman, w'„)A\as rrijiul hi? should be sns- 
Secretarv JtfM.\.*;;. Tii» sending me up with |)ecied of iviiiiny iV'im oriiv, from dLsliki^S 
"'" iiupMchmritt retlccts up'^a hiisiuajeNly, luy the prcsy:;ut luciiuus of the court." 

i 



STATE TRIAT^, 33 Charles II. \6l\.^Edward Fiizharrit. 



[230 



the whole House should reflect upon 
','* and for bim tosav, *" Do what ^ou 
I ine, I will not t^." 
tary Jenkini, 1 said no sucli thing', 
Jie Hoase reflected on thi^ Kia^," but 
[ take it as a reflection u|M>n the king-, 
ter." 

ords were thus stated, *^ This mcssa^re 
been put opou nie but for tlic character 
I value not my Hie ur liberty ; do what 
with uie, I will not eo,^^ 
mry Jenkim, I said *^ That this is 
n me, to my apprehension, fur the 
r I bear ; and do what you will with 
ill not go." 

Janti, I am sorr^' to see any member 
dmself at tliis rate. This confirms me 
union of the dc^ig^n some men have to 
he honour ufSliis House. A book has 
itien by a member of tliis House** 
in time, I hope 3'ou will consider of) 
ihe House ot Coiumons, in Hon. S.'s 
runff out of rebellion.'' This g^*s on 
in the mme method. \jc\ a man he of 
dity he will, if he be too bi^i^ to carry 
ssa^, he is too big to be your mem- 
not fit to be chosen fur one. Tlius to 
e commands of the House, and to be 
or a messenger of the House of Coni- 
iecretaries are sent on messages every 
i ia hr too big for ihl«, to accuse a 
fthe Popish Pkit? If this be so, sit no 
kens but go home. His character is 
lit lie nuky be privy to things hid from 
ibly, by this extraordinary carriage, 
ic Co that i»ass, for us to be dealt with- 
ne of our predecessors ever were bc- 
f my brother, or sou, dealt with the 
bos, I would have hini made an ex- 

and, for aught I see, Jie provokes 
leby Ills explanation; theref(>re pray 

tary J* nkin$. I am ready, and I think 
u much obliged as any man, to obey 
inaiids of the Ifouse. iThe office I have 
IS majesty excludes me not ; but the 
stand upon is. That tbe motion was 
on in riilicule. I have an honuur fur 
il ever have had for all Houses of 
DS, but in this message 1 must and will 
Mid. 

enry CapeL ** Ritlicule" is not a word 
iir a Houseof Commons : wluitlsap- 
by tliem iswitli all gra\ity, especially 
ae life of a man is confcmed, as it is in 
■chment. We are in an unibrtunate 
nr things come to light, moi-e than we 
bic ; that now it must be said, ** Im- 
■ii of treason strike at the king," and 
lof cxduduig the duke, >cc. islevelhHl 
pg^** I am sorrv it is said here, as well 
hv places. This that we put upon 
■ Ml employment for the king's ser- 
i he tdla us, *' It reflects upon tlie 



sa 



ly, who served for the Uuif ersity 



king, and he will not ^." All the Commons 
do wiU be reversed, it this must pass for doc- 
tiine, '* That wlmt we do reflects upon tlie 
king.*' But, Sir, we are in a ship, and we 
have to do with the master, and he with us. 
If tliis gentleman would make any sort of ex- 
cuse for himself, I would, for my share, pass it 
by ; but he has not taken it off, but rather ag- 
gravated it. If he has nothing farther to say 
for himself, he must withdraw, and then I 
shall make a motion, fur the honour of the 
House. 

Sir Thomas Meres. I know no difference of 
any persons here ; if Jenkins said ** I thought 
sending me with the impenchnient reflected un 
tlie king ; and in case it be so, 1 will suffer any 
thing under that reflection," a man may be 
mistaken in his thoughts : but, as I take it, he 
said '* It was his tlioughts that the message 
was a reflection upon tlie king, and ia that case 
he wouhl suffer any thing rather than a refleir- 




stumble at the entrance. 1 do hojie tluit Jen- 
kins intended no disser\ice to the House, in 
wliAt he said, hut on a jM*rfi*ct mistake. I did 
apprehend, and so did some otliei-s, that he was 
|iut upon it, by the gentleman that moved it, 
mjest(Mr. Coningsby.) But be it in jest, or 
in earnest, he ouglit to obey your order ; but 
every man cannot subdue his own heart. But 
I would know of Jenkins, whether, upon far- 
ther consideration, he will undeilake this ser- 
vice, or no ? 1 am the worst advocrate in the 
world for an obstinate (lersou ; but 1 humbly 
ofier it to your considenUion to put the gentle- 
man upon it, whctlier he will go, or no, before 
he witiidraw. 

Secretary Jenkinn. Since the House is so 
favourable as to hear me, I must say 1 did ap- 
prehend it a reflection upon the lling, which 
was the reason why I refused the message : 
but if I apprehended it a reflection upon tlie 
king my master, 1 am heartily sorry 1 should 
incur the di.sideasure o\' the House, and I hope 
you will pardon the freedom of the expression, 
of reflection upon the king. I had no other 
consideration whatsoever that induced me to 
say the words. 

*Mr. Fleetwood, I look upon this as so great 
a reflection upon the House, from this genile- 
maii, that he ought to come u|ion his knei's, at 
the bar, to ask pardon. 

Mr. Biucuuen. We are all subject to infirm i« 
ties. Seeing the thiiiif is so, Jenkins could not 
apprehend any reflinniun ui>ou the kuig in the 
message, but he ii light ujion hiiusell. The 
thing was a little smilingly iiio\e«l ; but since 
he has explained hiiiiseh, I would have tliis 
passed by, as 1 shoultl di'sire for m^ self, iijnmi 
the like occasion. 

LdtniCuvendtth. The gentleman's foiilt is a 
great one ; but after he luis now beggixi ihe 
pardon of the House, and that he is read} to 
olM'y the Onler (d (he House, 1 am Milhng to 
pass it o\iT. Though it be a great fauh, yet 



C3il STATE TRIALS. 33 Charles 11. xesu-^Proceedingi egmmit [039 



it U too little to give occasion for a breach, at 
ill is time. 

Secretarv Jenkins. I am ready to obey the 
orders of tnc H<)iL<;e, I am verj'*sorrv that the 
words which fell from me, gave ite House 
ofFenco. 

And so the thing passed over, and he carried 
the message. 

C'olonrl Bi'ch. For the discovery of this 



may indict at his suit, or the heir or the nift 
of Uie party murdered may bring an apped f 
and the king cannot release that appeal, nor 
his indictment prevent the proceeiUii|[a in tht 
appeal, hei*ause the appeal is the suit of thfe 
party, aiid he hatli an mterest in it. 

*''lt is, as we conceive, an abaolute denial flf 
justice, in regard (as it is said before) the m 
suit can be tried uo where else. The Hi 



Plot of Fitzharris wc (Mi<rht all to 'give God | of Peers, as to impeacliments, proceed bf 
thanks, next to the discrnciy of the Popish i virtue of their judicial power, and nntbythor 
Plot. This is a ;;TC'at M-rM<*i' to the nation, \ legislative; and as to that, act as n Court of 
and it is not ilie lust sen- ice ihnt sir William i Record, and can deny suitors (especially tki 
Waller has (lonr the until 'M. Ifeverthetlianks ' Commons of Englanrf) that brimf le^ 
of the House w(>i*e <tesiT\(Ht, it is for this dis- I plaints before tliiMu, no more than Uieji 



covcry ; theivtiir I in«i\e, '• That be may of Westminster Hall, or otiier courts can daj 
have the thanks of the Houv/* ' any suit, or criminal cause, that is regnWy 

HI ^f I ^^ coimnence«l before tliem. 

..ISE OF LOKU-S Mara, W. .. q^^ ,^^. ^j,,,^ ;„ ^ j,,,^ «f Ae BHi 

A Message was bron;;^ht frf»ni the House of " Nulli negabimus justitiam,' We will doij 
Commons, by sir Li^i! in Jenkins and others, in justice to no single person : yet here, as weap- . 
these words : ** The Commons of England, as- ! prebend, justice is denied to the whole bsdy if '■. 
semliled in parliament, having nTfiveil infitr- I the people. 

mation of divers traiterous ]iraetices and designs I '* And this may he interpreted an enramg ' 
of Kihvard Fitzharris, have commanded me to | of an arbitrary power, and will, as we ftVi \ 
impeach the <?aid Edwnnl Fit/hanis of high i have influenee upon the constitution of III ! 
treason : and I do here, in their names, and in ; English gnvemnient, and be an encourage not ' 
the names of all the CcMnmons of England, ' to all inferior courts to exercise the same w^ \ 
impeach Edwanl Fitzharris of high treason. ' trary jwwer. Iiy denying the prescntamti if 
They have further conniiundi-d me to acquaint grand juries, \*e. ; for which, at this time, ttl 
your lordships, that they will, within i*onve- chief justice stands impeached in the House of ; 
iiient time, exhibit to youV lordships tlie .\rtieles Peero. 

of charge against hini.'* ! ** This proct?cding may misrepresent tie 

Mr. Attorney General g;ive the House an Honse of Ivm-s xn ihc kiiig and people, eep^ 
ocoountof the Kxauunaiim'is taken against Ed- | cially at this time ; and the more m the pvti- 
wanl Fitzharris ; and said '* He had an onler ' cnlar east- oi' Edward Fitzharris, who is pok- 
ot'the king's dolinl tlie 0th of ^lareh instant, liely known to hv concerned in vile and boirii 
to prosecute the said Fitzharris at law; and treasons agaiii<t his majesty, and agreatCQS- 
accoi*diiigly he hath prepared an indictment spiratnr in the PopUh Plot, to murder the kinSi 
against him at law.'' ■ and des1ri>y and siih\ert the 1^-otestant reb* 

And, ai^er a Ion<; debate, the question was ; pfion. Kent, >>hafi(*shiiry. Macclesfield, Hc^ 
put, "Whether Edward Fitzharris shall l»e ' hert, noilfonl, Stumfon!,'Westmi>reland, Sali^ 
procectled with according to the coursi* of the bury, Paget, Cornwall is. Huntingdon, Ciaif^ 
Common law, and not by way of im|H'achment Sunderlan<l, Essex, Crei\e, P. Wharton, JUo^ 
in parliament, at this time?'* It was re8ohi>d ■ daunt, Grey, IMonmouth, J. Lovrlace." 
in the afhrmative. ' it ,#-. ir r-^ 

jlemc'randum. That iK'lore the puttmtT the ' » # 

above qiie^lion, leave was asked for entering ' [Debate in the Commons on the Lords re- 
Pn>iestniions ; which was granted. fusuig to proceed u{hm the Impeacbmest 

*' Ditsentientibui ; ISeeauso that in all ages against Edwani Fitzharris, and directing tfait 
it hath l»een an imdoubted ritrht of the Coin- he should be proceeiled against at commoB 
mons to impeach Mt>re the Lonls any subject. law.]t 

for treasons or any crime i*hatsiH»ver "; and the ■ • — — 

reason is, because great oHTem^es that inHueiue • 'M\ hich u as always to !»e preferred ; isd 
the govemmeut are most eii'ectuully detenu iuL-d , Ujioii notict- thtreof, all i-nseeutions at tbe 
in parliament. ' • kind's sui: \*tiv to stop, till the pntsecution it 

»• We cannot rtjeet the Iinpeaehment of the the stiii t>f the party was deteruiined.'* Note 
Ci'-mmons, luxoause tliat suit or complaint ran to ioriAir ciiiti«»n. 

he determined no where eKe: for if the part\ \ + '• The C-n mioiis" Impeaehmeni againl 
impeached should be indicted in the Kind's ' ri'./hr.rris \*aH r^ive!^J h\ the Li>nU u^t 
I^iu^b, or in any other court, for the same ' prct .ui.vvii!! uhii'li |,.i I Nottiny^hamfwruishid 
oHeiTjPe, yet It IS not the sauie suit ; for an iui- in. .n, li was tIt's : IMwani 5 hati unt souic 
peactiment IS atthe suit of the people, and th»:\ Ci '.Mi'r.rs ■ tlie si\ miirdt^-rs of Edward 2] 
ftave uinterest ?n it. But an indictment is io I.. . ..:,.i. uinetl h\ i].e UntU, of which whea 
(DC suKot the kmg: for one and tin- sanit- th.- il,Mis=M»f Cr.iimu»n< eomi^l'MiiTHl, an ordff 

o2I^^*^" .'**"'** t^'"^""'* *'^ ■^^^^"*^' ^^-^^ »'»'^*'**' '•'*'''''*^ '*" ^"^'^ *'''"4»' shouW be 
«iUB, IS a amunkr be coiamiiieil, the kjiu; : d -jc for ib.^ futi-ii. ' No-v ilut related onlj 



STATE TRIALS, 33 Charles II. l6si. -^Edward FiizharrU. 



[234 



Lte. I see ^lot what farther use 
ifm pwfiament, ii* the House of Peers 
Cooft, and not a Court, to serve a pre- 



iUttmJomes. In a matter so very plain 
pieaous, as the refusal of this ioipearh- 
the LMth, I am unwilHiij;^ to make 
ary doafats. If indeixl an inferior court 
eeoed to judgment in this matter of 
s,thcn it mig^ht have been pleaded in 
Ht tbe impeachment of the Commons. 
M an indictment asrainst the Lords in 




impeacli 

ot Fitzharris, here is no indict- 

pTOaecution begun in any inferior 
law. We have a prece<lent fresh in 

of the impeachment of a commoner 
nblMir, if tneliords doubt that, which 
IT lord chief justice Scroj^gs ; so that 
not spend our time to search for pre- 
o mamtain our right at a conference 
I>iHs. Perhaps the Lords Jounials 
*«( made up into tbrm ; but sftme mem- 
a taken notes out of their minutes, and 
the Lords have dismissed the impeach - 
ftinst Fitzharris, and lelt him to trial at 

laWy and have ordered it so by the 
■ spiritmU" as well as '* temitoral ;" 
lis case they have determined a great 
That the Lords spiritual have power 
in an impeachment of capital matters," 
« never own, nor ever shall, and here 
Aenied justice by those who have no 
▼ole it. In tliut the Lords have done 
le act of injustice. Seeing then that 
Is hare taken U|>on them to throw out 
Mschment, Vc. let us assert and declare 
Mif impeaching in oai>ital causes, and 
iLsnls have denied us justice in refus- 
JMeachment a;^inst Fitzharris ; and 
Kf baviu^ assprtt-d our jirivilcge, let us 
p our reasons to luaintatn it, and make 
4 our Conf(Tenre to show the Iy>nls, 
reasonable the Lords actions have been 
proceedings. 

eedings at the king's suit ; but it could 
mrant, that an Impeachment from the 
4BS did not lie against a Commoner. 
I, secretaries of state, and the Lord 
r were often Commoners. So if this was 
IV, here was a certain method offered to 
Mrt, to be troubled no mure with im- 
■o^ by employing only commoners. 
M, the Peers saw'the dcsi;|jii of this Im- 
•ad were resolved not to receive it, 
use of this colour tu reject it." 

ii occasion a protest, with reasons, 
M for the first time, signed by the 
hmsuth, and 18 other Lords, which, 
^1 of the Press, for which it was ori- 
Islitedk became the subject matter 
taMraveny all orer ihe kingdom." 



Sir JFV. Winnington. If this refusal of the 
LdMs was an ordinary Impeachment of mono- 
polies, or the like, 1 should not press you in the 
matter ; but this is not an onUnary considera- 
tion, but that which relates to our religion and 
proiM;rty; and how the bishops come in to stifie 
this imoeachment let God and the word judge! 
I would know if there be an ini]K?acbment 
against a man from the Conmions, and no in- 
dictment ui)on record against him in the courts 
below, only the attorney general told the Lords, 
that the king gave him directions to prosecute 
Fitzharris, and there is no record against him. 
If the Lortls vote, »« That the House of Com- 
mons shall not impeach this man ," they may as 
well vote, that we shal'. not be Protestants. 
But yet we will be Protestants. I take this to 
be a new Plot against the Protestant religion, 
and we impeach this roan, and the Lords mirly 
say, " We will not hear it." If this be the 
case, I desire you will come to some vote. You 
are willing to discover tliis Plot if vou ooukl. If 
the attorney-general had preparecftlie prosecu- 
tion of Fitzharris, and, as Jones said, ir the in- 
terior coiuts had proceeded to judgment against 
him, then that judgment is pleaded in bar 
against an impeachment. But if our time be 
short to be here (as 1 believe it is^ ]H'ay do not 
delav discharging your part in this matter. If 
the house be satisfied in it, nray make a vote, 
to assert your own right. A little while ago, wo 
knew, that the judges of the King's-liench dis* 
charged the grand jury whilst the indictment 
against the duke of i'ork, for a popish recu- 
sant, was dej>ending : This proceedmg of the 
Lords, in rejecting the intiieachment of Fitz- 
harris, seems as if the House of Lords intended 
to justify tliat procee<ling of the judges by their 
own. It is a jit it reflection of weakness to doubt 
in a plain matter. If no gentleman doubts of 
our right of impeaching, pray vote it so. 

Sir Robert Hnicnrd. I am glad we arc off 
fn»m one great thing, vi-^. " the exclusion of 
the duke of York from the succession of the 
crown as the best means to preserve the Pro- 
testant religion." 1 cannot believe but that, in 
this matter of rejecting the impeachment of 
Fitzliarris, the lionls have cause for what they 
do. In this matter, precedents you need not 
search ; you have instances of very late date : 
But this of Fitzharris seems to me to be a more 
dangerous breath than usual, a breath fit to be 
stiiL^. Th^ is something in this more than 
ordinary. If this be a sacred respect ib the 
Lords to the common trials of England by jiuies 
in the inferior courts, it is stranee that, in the 
case of Skinner, the Lonis should contend with 
the Commons about the trial of it, though an 
original cause. This refusal of the Lords seems 
to nie to be no great value of the law of Kng- 
land, but a value of Fitzharris to keep him 
fn»ni us. When 1 have seen, in all the speeches 
to-day relating to the duke's exclusion, that the 
duke goes not single, but all along associated 
with popery. 1 have heard such excellent dis- 
oonrses to day of that matter, tliat I am loth to 
oiingle my weakness with thens ; but these are 



235] STAT£ TRIALS, 33 Charles II. iSSl.'-Proceedingt ttgainU 



such counsels from the Lords, that I believe 
hereafter the king will have no cause to thiink 
the Lords, oi* those that were the orio^nals for 
invoWini; him in the fatality of them. They 
will make the traitrroiis libel of Fitzliarris the 
copy of their counsels. Dannferficld was a ' 
man reputed most inruinous, yet if he would ' 
discovf:r what hu k.iew »»f that* sham Fresby- j 
tertan Plot, nothiri|r of mercy was too hig for i 
him : but Fitzharris, a man of no iiifatnv, must ■ 
be hurried away from Newgate to the Tower, | 
when he was disposed t<» cfin'.ess the whole Plot 
to those gentlemen uho examined hini. Are 
you so lost, that there is no mercry left for the 
Protestant relicfion ? If the terror of his con- 
dition incline him to iliscovnr n!l, iru.4 he now 
be taken out of our hands i* U'e hear of otlier 
thingYi too ; tbnt tlie Frenrh ambasi^ador had a 
hand in thec:nntnrancc'of this Plot with him, 
and can that lie enquired into by a common 
jury, who are to concern thern<jelvcs in no more, 
than whether Fitzharris be i^'uilty , or iiot guilty '' 
I must confess, that with the carriage oi* this.' 1 
have enlarged my suspicion, and \ must always 
suspect unusual ways. We see that the worst 
of mankind has been pardoned, with all his vil- 
lainies aliout him, upf»n sm ingenuous confession; 
but what provocation has there been from Fitz- 
harris, to W thus hurried away to trial at com- 
mon-law in a disposition to confess all, and so 
he out of the reach of panlon, should that dis- 
position continue up<»n him? But I am per- 
suaded scmietliing depends upon this man, as 
we J as upon the bill we ordered to day. When I 
saw the temper of the House, when Jenkins re- 
fused vonr Message [Sre p. 2'28.] (and there was 
something in that too) that the Kouse would make 
no brejich wy^on it and paBsc><l it (»\ er with great 
temper, that now we must lav down all prosecu- 
tion oi' the Plot, and that the I'rotestant reli- 
gion shall have no mercy ! Fitzharris may 
merit by his confession where he may reasona- 
bly hojie for the same intercession for his par- 
don, that much blacker offenders have obtained ; 
but if his breath Ije stopped, I am sf»rry the 
people should lia\ e occasion to say, '* If it were 
not for the Lords, the Protestant religion might 
have been saved." Therefore I move, that, in 
tile wording of your vote, you will not only 
,say, *' That the Lf>rds rejection of tliis im- 
fieachment u nut only a snbverthig the constitu- 
tion of ])arliameiit," hut *' of the Protestant re- 
ligion" also ; and 1 ho|K* you will do this with 
the same cahnncsi of nund that every man 
does wi^h that loves his religion. 

(Serjeant Maynard. This damnable popish 
plot is i»till on foot in Kngland, and I am sun; in 
Ireland too ; and what arts and crafts have been 
uscti to hidi; this plot ! It iK'gan with the mur- 
der of a magUtrate [(jodl'ivy,] then with per- 
jury ami false siii>ornatio(t, mid this of Fitzharris 
IS a soconil part of timt: We sent up an Im- 
peachment to the Lonis against Fitzharris, and 
told the I^irds, *' That, in due time, we ^vould 
bring up articles against him," anil the Lords 
reftise to try him. In eflbct, they make us no 
parhaowut— Il'we are the prosecutors, and they 



will not hear our accusation, their own li 
weU as ours, are concerned. This is a i 
way of proceeding ; the same day we in 
Fitzharris, they \ote we must not |Mn 
him : now, wKen all is at stake, we mi 
prosecute. If this be so, Holland must 
and let the French ran over all. Th 
strange breach of privilege of parliame 
tends to the danger of the king^s person, ] 
destruction of tlve Pkotestant KeligioD, 
hojie you will vote it so. 

Sir Thotuus Player. I shall make you 
tion, but first I shall say we have had 
sidcrabfe discovery of the former plot. 
it the old plot, but this of Fitzharris hi 
new upon us. This is still a oonfirma 
the intention of murdering the king, tL 
consenting to destroy his own brotber a 
kiii^ — I have often heard it whispered, t 
design of Madame*s voyage to Dover 

S>romote the nopish religion, but it is pk 
Fustice Godlrey was murdered by the ] 
and that the army mustered on Blackhei 
raised ^ith intentions to destroy thcjProtes 
Holland, and to awe tlie City of London- 
FitzhaiTis gave intimation^ that he woi 
cover what he knew of this plot, and tl 
or three honourable members of this Hoi 
examined him, this man was fetched tl 
day to Whitehall, and from thenoe 1 
away to the Tower, and so we were depi 
all iartlier hopes of discovery from him 
now revive the infomiation from an Ini 
ment, and now this man must not be li 
hither to be tried : He must be tried in 
terior court, that his moutli may be stopp 
put out of f rapacity to discover. This be 
case, I move, " Ijiat if any judges, jus 
thoe|>eace, juries, (Sec. shall pr<K*eed uj 
trial of this man, that you will vote them 
of his nuirder, and betrayers of the righti 
Commons of England."* 

Hereupon the House came to the fol 
Ilesolutioijs : 

Resolved, '* That it is the undouhted i 
the Commons, in parliament assembled, 
peach before the Lords in Parliament, ai 
or ConnnoniT ft)r treason* or any other 



* ** Mr. Justice lilackstone, 4 ComnK 
c. IP, lays it down, ** That a omimom 
not be im|ieachcd btdbre tlie Lords for s 
pital oH'uncc but only for High Misdemea 
And to prove this position lie cites tlie 
Simon de Kcrestirnl, from Hot. I'arl 4 
No. 2, and 6. — This case is as follows: " 
in 4 til Ed. 3, the king demanded the 
barons and peers, to give juilgment i 
Sim<m de Herestord, who had been a no 
accomplice in the tnmsous of Koger < 
.Mortimer, they came beftiri' the king in 
ment, and said all with one voi(*e, t] 
said SSimon was not their iieer ; and tb 
they were not bound to judge him as a ] 
the land. And when aftem'ards, in tin 
parliament, they were prevailed U|ion,iiii 



^37] 



STATE TRIALS, S3 Charles II. \6h\. ^Edward FUzhmriB. 



[?3S 




to te DotorieCy and helnousiiess of bis crimes, 
to reoeire the charge aiid to gpive judgment 
■giBrt him, the ftTlowin^ jirotest and proviso 
»« entered on the parliament roll. < And 

* k is assented and accordctl by our lord tlie 
' kmg^, and all the great men, in full parliament, 
^ Ika aflieit the peers, as judges of tlie pariia- 

* Boit, have taken upon tnein, in the presence 

* ftf ear lord the long, to make and render the 

* and judgrnent ; yet the peers, >vbo now are 

* cr nail be in time to oouic; be not bound or 

* charged to render judgment upou others than 
' peers ; nor that the peers ot the land have 

* uewti to do this, but thereof ought ever to be 
' oMiaiced and acquitted : and that thoafore- 
^ nad jiM^rment now rendered be not dra^\n to 
^eiample or consequence in time to come, 

* whereby the said peers may be charged here- 

* aAer to |udge others than their peers, conti-ar^^ 

* to the laws of the land, if the like case ]iap]icn, 
■ wbich God forbid.*— Rot. Part. vol. 2, p. /)3, 
54. 8ee this case, in the ori<i[iiial language, 
with the opinion of the judges thereupon, in 
tbe Appenitix to this vol. No. lO. — ^JIuw fai- the 
esndiiwm drawn by sir W. Biackstone from 
tUs case, which was a prosecution at the suit 
of te king, has been admitted to be law, with 
nganl to prosecutions, brought before the 
Lonfai by impeachment at the suit of the Com- 
■HMH, will appear from the great niunber of 
hMineeBy which occur in the iullowinsf part of 
tUs Tolame, f subsequent in point of time to 
Ihis of Smon de Bercsford in the year 1530) 
where csnunoners have been im]ieachcd be- 
fore the Lords tor capital offences, and in which 
the Lords have not made this objection. Lord 
fioOis in bis work, concerning the judicature of 
the House of Peers, pnblishcd in 1669, speak- 
ing of the case of Simon dc Bei^esford, gives it 
as hii opinion, ' That the protestation of the 
I/irdf , not to sit in judtrment upon any but 
peers, was a mere order ofthe House of Lords, 
dteroMe at pleasure.' — On the Sad of July, 
1889, (Hee the Case of sir Adam Blair and 
eCben in this Cf«Dection) a douM arose in the 
Honse of Lords, Whedier this reronl of the 
4di of Ed. 3, was a statute ? And the ques- 
tion being put to the jtiilges, they answer ' As 
B appears to them by tlie aforesaif I copy, they 
beheve it is a statute ; but, if ihcy saw the 
nit itself, they could be more positive therein.' 
Itwaatben proposed to ask the judges, ^Vhc- 
flier the Lends, liy this statute, be barred from 
tiying a commoner upon an impeachment of 
the House of Commons ? But the previous 
qnestion being put, it pHsse<J in the nr'sfutive. 

*• in the 1st vol. of the Lords Deliates (S(^ Aji- 
pendix to 4 Cobb. Pari. Hist. Mo. xv. p. rl.viii.) 



moncrs impeached by the Commons in par- 
liament ?" 

" ^Vhen Simon de Beresford is charged by the 
king in aiding and advising with the said earl 
Mortimer in the said treasons and felonies, the 
said earls, barons, and peers, came before the 
king in parliament, and said, ' Tliat the said Si- 
mon was not their peer, and therefore they were 
not bound to judge him, as a (icer ofthe land.' 
— Tliis accusation against Simon de Beresford 
was at the kiu^^s suit. Bot. Pari. vol. 3, p. 53, 
Xo. 4. — Notwithstanding the declaration of the 
Lords, they afterwards condemn tlie said 
Simon de Beresford and others, not i)eers, to be 
executed for the said treasons and felonies — 
But immediately declare, ' That though they 
had from this time proceeded to uive judgment 
upon those that were no |)eers, hrreafler these 
judgments should not he drawn into example 
<»r eonFeqiirne^, so that thoy should be called 
upon to judge others than tht'ir peers, contrary 
to the law of the land.' Kot, Pari. vol. i!, p. 
54, No. 6 — In the Jpth ch. of Magna Charta, 
91 h Hen. 3, it is said, ' Ncc .super eum ihiiuus, 

* nee mittemiLs, nisi per legale judicium parium 

* suonnn, vel per legem terra;.' Tliat is, says 
sir Edwai-d Coke, 'ind Inst. p. 4G. ^ No man 
shall he condemned at the king's suit, either be- 
fore tlic king in his bench, where the pleas are. 
Coram Rege, (and so are the words, * nee super 
eum ibiraus,' to be understood) nor before any 
other commissioner or judge wuatrver, (and so 
are the woixls ' uec super eum mittemus,' to be 
understood).' And again, 'i Inst. p. 48, in 
connnenting ui)on the words, * Per judicium 

* parium suorum,' sir Edward C/oke says,^ 
' Note, as is before said, Tliat this i» to be un-* 
dcrstood of the king's suit ; for if an ap- 
peal be brought against a Lord of parhainent, 
which is the suit of the party, there he shall be 
trietl, not by. his peers, but by an ordinary inry : 
For that this statute extendetli only to the king'k 
suit.' So in the lord Dacrc's case, in the 26tb 
of Henry 8tli, on a question^ Whether he 
might wave liLs trial by his iioers, and be tried 
by the country, Uie judges all agree<I, that he 
could not. * For the statute of %I(i»^a Charta 
is in the negative, ' Ncc su|)er eum ibimus, nisi 
< per legale judicium panum suorum,' that is 
at the king's suit upon an indictment.' 
Kelynj/'s Hep. p. 50. And, in the tracrt cited 
before in the note, p. 54* sir William Jones says,- 
^ It is evident fn>ni the roll itself, in the case 
of Simon dc BiTesfonl, and the other records, 
that the liOnls didjudgf* those commoners con- 
trary to the law of the land, that is, at the in- 
stance of the king ; so that judgment was 

I given at the king's suit, in a way net warninted 



IS a pamphlet written by sir ^Villiair Jones, and | hv the law and cust(»m of puilinment, or any 

S'jmished iii 10^1, in which this qu(>stifm is 
i<cn^aed, • Whether, by th'* law and custom 
cf pai-:^ument, the Lords ought to try com- 



.• — ; — 1 ' — J 

Other law of the kingdom : but there is not a 
1 word in that n-cord, which imports a rcslriction . 
I of Uiat lawful jurisdiction, which our oonq^tu-^ 



239] 



STATC TRIALS, 33 Charlbs II. 168 1 .—Proceedings agaimi [240 



they would brini^ up the Articles against him ;" 
for the liords tu reHoIve, ** That the said Ed- 
ward Fitzharris should be proceeded with ac- 
cordiug to the course of common-law," and not 



tion placeth in the Lords to try commoners, 
when their cases should come berore them law- 
fully, that is, at the suit of the Commons by 
impeachmeut." 4 Hats. Prec pp. 54, 67. 

Mr. Hatsell, in support of his doctrine, that 
commoners may be impeached of Hig^h- treason 
before the House of t^ords, cites the case of 
Chief Ju^ce Scrc^i^gs, as to which he notices 
that the Chief Justice did not as a commoner 



by way of Impeachment in parliuiient, it ikk 
time, is a denial of Justice, and m ?iolationof 
the constitution of iKtrliaments, and «uobaimi»- 
tion to the further discoTery of the Popish Flat, 



in a comgaoner is no crime, and subject to m 
punishment." 4 Hats. Free. 900. 

'* Sir Matthew Hale, in the JurisdiGdim d 
the House of Lords, eh. 16, p. 92, Hyiy 

* Some luire thought this decUmtion of tht 
4th of Ed. .*), being done thus aolonnly, ■ 

* pleno parliamento,' was a statute or act rf 
parliament. But that seems not so daur. It 
was certainly as solemn a dedaraSion by the 

1 . ^t » _j , • J- • 1 *i wi -1 ■ Lords as could be made, less than an mStd 

plead tothel^rds'jurisdiction and that thoiiglij parliament; and it is as high no ertdeoea 
several members expressed their doubts how against the jurisdiction of the Loixis, totiy* 
tar the Commons ought to impeach tor High- : jj;^^ a commoner, in a criminal cause, as cm 
Treas4)n a person as pnlty ot crimes which p^^blybe thought of: (I.) Because donehf 
are no. d**bred to be such by thestotutcof oV declaradon, to be against Uw ; a^l 

treasons, 25 Edward 3, no peraon douUed but = ^.,.^ Becaaseit is a declaratk^ by the Li^^ 
IMX It ihc cnmo^chargHl did amount to Higli disallirmancc of their own jurisdiction ; wUcb 




1681 (See 4 Cobb. Furl. Hist. 1 i78), and he- Report iu the Case of sir Adam Bhdr and •«« 
mentions that sir W . Jones, in the debate, says-^ , -^ ^^^ ^^g j^ ^j^^ Collection. 



*•*• There is no question, but a peer of Ireland i 
is but a coiiimouer in England : and no question | 
but he iiuiy be proct'eded against by im- | 
peaohment, as \%vU as by common trial. . 
You canmx mistrust vour manasfers, iior a ' 
common jury ; but the ai^cusation of lord 



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



i. 



\t ilic Oxford parliament, when thebhfk' 
rod knocked at the door, sir Wm. Jones wasii 
the midst of a speeih to inflame the Hoott 




and ftT,«|iit M«i>anl concuired m th.s pro- ^,„^„„ , ^,,„,,, ,^,,. ,^„ ^ ^^ j^ 

wedmg." 4 Hats. IV-c. p. 110. ^,_jij .^^■^^^^. ,„,^^^ ,1^, his whole ueui 

So judge Berkley was impeacheilforHiirh- might itnm* to »is ; because the: 

Tr«asonr«ee his Case. vol. 3, p. 1'283. of this obicititMi. which ho was a going 

Collection, see uw the Case of JtTmvn, PitTCv, in this, viz. that 7^r Ttrrs is b 



imcrruptedby 

hid 

argumail 

because the strength of the 

'joing to answer, ttei 

r is not contrary 10, 

and otliers. mentioned 4 Hatsell llU, where a iiur doih roiioal or restrain the 'JiidiciiMB 
reterence is made to K^rd Clarendon's accouui of * pariuiii.' but bi>tii an.' of absolute extent, the 
their plot and also to the queen^s representation titrmer as to faL*t. and tht* other as to the law, 
of it. There is IJ^ewise an account of it in >Iay s when tho fail i» staieil. The forraer is 
History-. Mr. Hatsell also cites the Cuseof Guilt \ or Not Guilt\. that is 'per m- 
DaniefO'Neile impeached of High-Treason in Mlii'iuiu {'jriiim : but there may be other 
the year 1641, and he ouotLS from sir William pU'.ts. a< inismmuT. doimirrers:, exoeptioDia 
Joncs*s pamphlet, ** If tnis (that (he I^ids i*ouIil p^ii-dons. and cuntl's.sious. uimn which the istae 
not try a commoner upon an iiu(ieaohiuent lor is uholU tu the ct»urt : as .^Iso the puiushmcat 
High-Treason) was so. it woukl biun thf|H>i%er atUT ^enhct of the pcxrs, a:id all that refers H 
oC the kinif, by making oulv cviumoucrs mi- the Lez T. .—^r. S> as, by that distinction is 
~^ n of stale* to subvert the government by >l Ji::i.i Charts, the otfictti of' the jury, and of tht 
O0Qtri%-ances whrn tlu\ pleas<\i. Tlicir ivuri, .mio for tlut. and the i<thcr* for law, are 
would keep tlu'm out ot* the reai.*h oi Wt-[<i iliMinot. An-1 amnlier obji\nxon was to be 
courts of justice: or tlicir treasons a:is'.«i'u-ii. uhich i> that, li\ an im])eachmcnK 
^Mlt HOC perhaps bo \nthiii tlie si.ituto. but a:i>i j uii;rnieni of the La^hU. a ooiuinouer is de- 
■an as &ir under the c<v^i/aiKV Mi' no other pnveit ot' his leg;*. I cLialltxigcs.'* Exam. 608. 
the parliaiiiefit ; and if the pi^ople Thfdifirrt'nces of opiiiioo which have pir- 
t of right demand justice tiier^^'. il]e\ ^.iilcd rcsj«ect!!ig this matter >trong1v illustraie 




vilboat tiear oi punishment, act liie tlie unsvttleiinesa^ of the * L«?x et Consuetude 

tiuctiTeTillaioiesaeaicsithe kiu^om ; * Pa.'-li^utim.' ^Hv th-' Case of Shirley and 

•ko follow, that the »aaie fact, which Fag^, \o\. 6 p. 1 1 J 1 of tlr.s C^^Uection. &etoo 

' ii troHOD. and Duntthabte with death. . .Mr. iiattoU's uucenaiuiy as to whether the 



, and puntthabte with death. ■ Mr. iiati^oU's uucenaiuiy as to whether the 
5 ! 



STATE TRIALS, 33 Charles II. l6sl.—EdiDsrd Bt^AarU. [249 

oilier {Ktraon Ivi"? under «n Impeachment in 
parlianiRnt for the same climes for whieh he or 
t liey maiid im]>niilieil, is an high breach of tho 
privilege of parliament." 

Imincduitelj- alter tliew proceodings, namely 
nn Monday the aoth of Slarth, the pariiauieut 
(vas dissoh'eil. 



t dsozer to liis majesty's peraun, and 
unl Kelisvm." 

1, " Thirt tor aiiv inferior court lo 
^ainU Edwwrd l^tKharria, or any 



JouniaU are public records, Prece- 

3. c*. 

I Reresby, after notidni! that the im- 
t of Filzharri* was not done to de- 

to sene him in opposition to the 
% 

jwds refnsed to netivti Fitzluirris's 
Mit ; ohMTving thai, hf being nlwaily 

common law, and in a way nf trial 
n, as Maffna t'harla directed, they 
nerreive ho« ilirir Ho\is«^ cmild lake 
114 rtrtence. Ttic Oimmona hirciipan 
-V u'itli the LiirdH, nnd vott-d tliat sudi 
^hijis proccediDff was a dtlay uf jus- 
aoh of the privilege of [.avliamcnt, 
w tli« fiiitUw discovery of tliel'o|tish 
I that fur any inferior court to pro- 
p;n, while iin'iiii|ieaL-lim(>nt was ile- 
■iw an hitth brwch ol the privilege 
lent. Tim he«ts (pew, in slwrt, to an 
ba*h Houses, bolli as to this, and the 
xHi-sion. The Commons, Wwevcr, 
union, that the king would ^?e wnj 

he having a<reu<ly made snch ad- 
tw»nls ttic-ir ineaaiires, and bein(r in 
tilK^ iliHtress lor money, besides that 
ID were near the king, iirge<l them to 
ill in tlieir endeavours.— I was at the 
joehte, as I was three time 
M diK-uarse ran gcnenitly upon the 
lay of an V thine lilie the Poi>ish Plot, 
aaiTHdictions ol which it was made 
: be inlendeil Fitzhairis should come 
itnal immediately ■- that in all aflMre, 
» himself, the laws should hare theii 
MUtsc ; and that, whatever liis owr 
Boimi might be, he would f[oveni hy 
id bv them only.— Fitiih arris was »r- 
a tiie King's-bench bar, where by lli^ 
be i«fnicil to plead ; because he stiiod 
Aimt (inpeaclicd tor tlic (rimes Iw 
■ lo be iuilitiwi forj though the im- 
nt specified no particular tn-aMniK, 
Im indictminl did. The counsel fot 

•aid, h's plea was evasive, it not ap- 
(riicllier tlie same crimes were intend - 
e one, as by the other. 
• Doint was anfULi) at tlw bar, Init tht 



KV^' 



nrdiDVy, holh in it 



ThU last parliament of king Charles the 
:S<«ond, he dissolvetl atOxfor.!, on March SBth, 
teSl. [See tlie iiartiuiilars of tlic dissolution 
in Hogcr North's Exameii, p. 104]. Afler 
-which eient he govcrtwd without a reirliamcnt, 
rsec a note to the case of Itiilinrd rhoin))soa, 
supra, p. r.i during the remaining four year* 
flf his reign " with a sort of legal tyranny, or 
nbuse of the legal [wwers with which the con- 
elitution hail invested him, employing his court 
of Kiiia's-heneh, (as his father had employed 
• \- »)un of Star-chauiber) lo persecuje liis siib- 

nndur the forma of law, by taking away 

ilie Charter of the city of London, and procur- 
ing the suri-endfcrB of the (;iiartcrs of aevnal 
oihcr corportlioM lliat snit members to parlia- 
iiK-iil, and tliereby luukiug the (Sections of 
iiiemhcra of parliament \fst free and iHipular 
than \icfoTf ; and liy ovtr-s.'vere punishments, 
ciinrniouR fines, anil vcrdictK tor cMCssjve ila- 
inagrs, given in civil actions by corrupt juncs, 
iiaLietl hy tlie slurids for the purp(«e." See 
Mr. Baron Blaieres's Prefat-e to llie Debates ji 
tlie year 1080, on the Exclusion Bill, edition of 
1007. Ol' lUis i>eriod Sir. Fox soys, "The 
\ylnde liistory of the remaining jmrt of thu 
reign exhiliilB an uninterriiplcd srries of allacks 
upon the lilMiriy. proiiertv, awl li»" of his sub- 
jects. To give an account of all IIm- oppression 
ofdiisiMTiud, «-ouId be to cimmi-ralc i*ery ar- 
rest, emr trial, cvcri' smteuce, tliat took phMe 
in <piestion» lielwei'U the crown and thu sub- 

And Blackstone speaks thus : " Tlie point 
"f lime at which I wouM choose to hx 
die iheoretiml perletTtinn uf o>ir |iiiblic law n 
the year IOTP, after the IlaU-ns Coriuisact wan 
passed ; «id that Ibr (ieensiiig the presa had ei- 
uired : though the yaat which hnmeiliately 
followed it were times of great iiracti(«l uplnvs- 
It is for from uiy intention to jolliute 
or defend luaiiy icry iiiii|oitou« |irw«i.lings, 
.-ontrary to all law, in that reign, Uirough the 
»r,ilice of wickeil polititiaos, botli in and wit i.f 
«niJ<>vmfnt. WhatseerosineraitestalA-isthis 



■ Wdl as becaose of the scv*crc 
HMOS at Oxfiinl, the jtulgcs took tune 
ler of it, but two Anys atWrwanls pm- 
I M|rmeut fitt the 'king; and in the 
ttMns teceii eil sentenc; of drath, fur 
■^ sod WHS c^eclltL■d accordingly." 
Ii^dab«nv n. That the period atwkich 

Ckapueoied of iIm linpeacluiicnl of 
._mi the citcumstiinees attending it. 
Mi or cuuduauus that may 
It fNcecding of vi^y liU-iu 



iiHu uj thi- low, as it tb»n stood, (uolwithstond- 
ing some invidious, nay dangenins liraiHlies ut 
the prerogative liaie siiH-e been k.piH-d off, anil 
tlio r*«t uwin' clearly deKiied) the |(i-ojilu hiiil us 
huge a portion of real liberty, as in t-oiwsUut 
Willi a stale of society ; ami sutheient (luwer, 
residiug in tlwir own 'hands, to assert and prt- 
sene that liberty, if iuva.k'd by the royal prt'- 
rogative. For which I need hut iiinieal to the 
iiiLiiionible i-otaslmpln! of the iie%t nign. For 
nlii-n kiugCliaries's delwletf br.llier altetiipl. J 
lo enNhite the luttiuii. he foiinil ii w«^ Im-voihI 
lhi»po»or-. tiuipeopkJ botk could, aiid did, «■• 



343] STATE TRIALS, 33 Charles II. iSsi.—PreeetdiMga 

n«t him ; am), in ronwanence nf snvh miMt- 
ance, obl^«i) him to qiih a'K enterprize uul his 
thrODe togcilier." B. CuDim. B. -i, c. S3, ■. 5. 

UpoD this Mr. Ftix exc'aiins : 

" TVIiat a fieM for mcditalion does this tliort 
dMcn alion, from such & mui, fumiah ! \Vbat 
icftectioiis does it nut iuggen to a thinkinff 
mind, upon the inethuai'y ut'humui laws, ana 
thriinperteilionsofhurouicoDitituliiHiB! We 
•r« caded finin ihe contemplatioa of the pro- 
grNaol'ourcDiLstitutJou, andouratteotion fuc- 
e<l with tiie moKt miuute accuracy to a pailicu- 
lar point, whni it ii aaid to h^re nsen to iu 
MXBOost paiectioD. Here ve are then at the 



best innment of the bat ciOiittitntiiiB Uul 
human wisdom framed. What ftUim 
lime of oppmsioti and miseiy, not ■ 
from exterrul or acddenlal caiues, so 
vrar, pestilenci;, or famuie, nor eren froi 
suvh aheration of ihe Uwa u miglit be aw 
to impair this boasted pertectim, but n 
corrupt and irickcd adminiitntioa, wb 
the BO much adniired cbccka of the oout 
trere not Me to prerent. How Tain diet 
idle, how nresumptuous, is ti>e opinioc 
lam can do every thiitc 1 and how mi 
pernicious the maxim Rninded upon ii 
meuuree, not men, arc tn be attoided ' 
Fox's Hist, of the Reiipi of Janm 3, p. 



Froreedtngs against Edward Fitzuabris in the KingVBe 
upon his Arraignment and Plea* to an Indictment for I 
Treason: 33 Charles II. a.d. 1681. 

ON Wednesday April 27, IdSl, the Grand- 
Jm-in for the county of Hiddletex were aworn ; 
and after rile Charge delivered by Mr. Justice 
Jones, his majesty's Attorney- General (ur Ro- 



bert Saivi er) desired. That some of that C 
Jury wliirh served fur the hmidreds of £ 
ion and Gore (that for OBnibUm bundr 
ing immediately a^jounied for a wedc) 



• ' I do ap|Kiint Francis Tyton and Thomas 

< Bacset to print the Arrsignment and Plea of 
■ Edward Fitxhsrris, with the Arguments and 
• Proceedings thereupon, and that no others 

< presmne to print the same. F. Pbmberton.' 

In Maephenon's " life of King James," 
written by himsiJf, (see Introduction lo hrd 
Cbircndon'R Case, vol. 6, p. S9I, of this Cnl- 
leciiiiiiV is the following passage : " April !j7, 
liiH I , FWhanis's indictment before the Grand- 
Jury to-morrow. Tlie king was confident it 
vi'iM bolimnd; and though all ihepmrticcs 
iu>:i|riiialili; were UNcd to pack a petty jury, yet 
the uriHifa wi-rv an ek>ar againNthtm, that they 
n i>:ihl hardly find twelvo men so wicked, ax t» 
prrjiirv tltniisi'lrcii so impudently, against law 
and jiiNtin' in iIil- fan- of the world." 

" .\ few days tiefnrc the king went tn Ox- 
ford, FUKharriH, an Irish I*apiM, wastkken up 
li f Inimiug a nialicinus ami treesniMl)le libel 
agininst the king and his wlioh; fiiniily. He 
hud met Mitii nne Kvrrard, who pretended to 
n.nke ilise(iverie!i, and a!i was thought had 
mixed a grrat deal iif lalselmHl with some 
trrnli : hut he lurid himself in general terms, 
and did not descend to so many [ttrticuhirs on 
tile ivitnesses had dotkr. Fitzbarris and he 
liad lieen Rii|UBiiiied in France ; no on that con- 
fHlf-ni^u he sliewcd him his hhel : anil he made 
nn a|iiiiiiTititieiit to ruiue tn F.verai'd's cbamlier, 
ivhn thnught he intcnilud to trepan him, and so 
huil plaetil wituivu-s to (iverfaear all that mrt. 
Fit/liarris li:!) the lilwl with him, all writ in lii* 
own hand: Ki pranl went with the paper ■ 
with lib witnesHes and informed B((«in>t Fi _ 
harris, who upon that was committed. But 
■eeiiig the proof agminat him woa like to be full, 
ba md, the libel wo* dtawa by Efcnvd, and 



only cnpicd by himself: but beludno: 
proof to supjnrt thin. Cornish the aba 
ingtoscehun, be desired he vronldlrii 
a justice of peace ; for he could molM a 
discovery of the plot, &r beyond bD tin 
yet known. Coruish in die lijnpliciljr 
heart nent and acquainted the king will 
for Mliidi he was much blamed; for 
said, by this means that discovery mi^ 
liceustopt; but his going first whh it 
court jirnied afleniardi, a great happinei 
to hiiiistlt' and to many others. The sect 
and B'inie privy coutiBrllors were upot 
sent to examine p'ilzharria ; to whom h 
a Innsf rclalioii of a ]iraolice lo kill the Ic 
Hliicii the duke was concerned, with 
oilier particulars which need not be ment 
fur it was all a fiiiiou. Tlie aecretaiies 
to him a seeoiid time to examine biin R 
he boldly stood to all he had said : and ' 
sirt-*! that some justices of Ihe citv mi 
bmup;ht to liini. SiiCLiylon and 'iVebi 
lo liiin : ami he made the Mme pretend 
cover}' to ihcm over again ; and inni 
that he was glad it was now in safe lian 
wi>ulil nol stillc it. The king was hig! 
f'luled Mith this, tince it plainly shewed 
tru!<t of his minUters : and so Fitshan 
rcmnred to the Tower ; which the CO 
siilvcd lo make the priiNin for all ofleiidi 
there should be slK-riffs diusen inar« 
king's derotinn. Yi-I the dqmsitioa n 
Clayton and Trvhy was in all points lb 
that he liad made to the Kecretariea: i 
there was no colour for the pretence aft 
put oti iliis, as if they had pnu^isednafe 
" The parliament mot at (Moid W 1 
the king opened it with aner* raflMd 
the proceedings of the fotmer pi 



45] STATE TMALS, 33 Charles H. l6B\.^Edward Htzharris. 



[246 



■t the ftrearii^ of tbe witnesses | in the Tou-er of London, ivhicli was frmnted ; 
Indictment ibr Hu^b Tiveson, to be ' but tbe Grand-jury beiu^ under s^)nie scmples 



e 

pan 

w f cfped against £dvrurd Fitzbarris, prisoner 

aid. he was resolred to maintain the succes- 
MB of tbe crown in the right line : but for 
MMliig' his people's fears be was willing to put 
m aihninisl ration of die government into Pro- 
tolHt hands. This was explained by £mley 
fld Littleton to he meaiit ot a prince regent, 
rilh wbom the regal prerogati^'e shouUl be 
9igtA doiinip the duke*s life. Jones and Lit- 
letaDfoaoa^ped tbe debate on the grounds fur- 
BtAjr mentioned: but in the end the propo- 
■doB was rmecteil ; and they re8olve<l to go 
Min to the Bill of Exclusion, to the gi-eat joy 
sr the duke's party, who declared themselves 
nore urainst this than against the exclusion it- 
(df. The Commons resolved likewise to take 
iie management of Fitzbarris's affair out of 
ihe hands of the court : so they carried to the 
Lonb bar an impeachment against him, which 
ats rgected by tbe Lords upon a pretence witli 
wtitHn lord Nottingfaank furnished them. It 
diis: Edward the third had got some 
to be condemned bv the Lords ; of 
when the House of Commons coni- 
phaifdj an ocder was made, that no such thing 
ibonM be done for the future. Now that re- 
hiMl only to proceedings at the king's suit : 
bat it ooidd not be meant, that an impeachment 
from iJbe Commons did not lie against a com- 
Msner. Judges, Secretaries of iState, and the 
Uad Keeper wero ofWn commoners : so if this 
aas good law, here was a certain method offered 
lathe eomt, to be troubled no more with im- 
by employing only commoners. 
the peers saw the design of this im- 
and were resolved not to receive 
it: and m made use of tliis colour to reject it. 
Upsli tftst the Commons past a vote, that jus- 
tioe was denied them by the Lords : and they 
iko voted, that all those who concurred in any 
in tryiag Fitzbarris in anv other court 
betrayers of the liberties of their country. 
** Pitzharris's trial came on in Easter Term : 
rbgga was turned out, and Pemberton was 
chief justice. His rise was so luirticular, 
Ihat it ia worth the being remembered : in his 
vooth he mixed with such k'wd company that 
ae aoickly spent all he had ; and ran so deep 
ia debt that ne was cast into a jail, where he 
ky many yean : but he followed his studies so 
doie m the jaD, that lie became r»ne of the 
allest men of his profession. He was not 
vbiDy for the court: he had been a judge be- 
fttVi and was turned out by Scroggs's means : 
nd now he was raised again, and was afler- 
Vudi made chief iustice of the other bench : 
lot not being compliant enough, he was turned 
Mt a second time, when the court would be 
aerved by none but hy men of a thorough paced 
obsenuioasness. Fitzbarris plcarled tlie im- 
pOKamenl in parliament : but since the I/>rds 
nd thrafwn that oat it was over-ruled. 
•I Fhsharris was tried next: and the proof 
full tha) be was cast. He moved in 




against receiving of the bill, desired the opinion 

court that I nkight bo ordered to coiue to hun, 
upon what reason I could never ini»i;ine : a 
rule was made that I might s|)eak to i»lni in the 
presence of the lieutennnt of thi* Tuwer. I 
went to him, and presscti liini veliemoutiy to 
tell the truth, and not to deceive hiiiiselt' Vi ith 
false hoi>es. 1 charged him wiili the inipru- 
babilities of his discovery- \ and laid home to 
him the sin of peijniy,' cljioH^ iu nuitt«^rs of 
blood, so fully, that the liimtenaiit of the Tower 
made a very Just report of it to the king, as the 
king himself told me afterwards. \Vlien he 
saw there was no hu{ie, he said the lortl Mow • 
ard was the author of the libel. Howard was 
so ill thought of, that, it bein^ known that tli;'rc 
was a familiurity between Fit^liarris and him, 
it was apprehended from the bt^inuiug that he 
was coucenied in it. I had seen him in lord 
Howard's company, and had told him how in- 
decent it was to have such a man ulHjut him 
he said he was in want, and was ms honest &s 
his religion would suilir him to \n\ I i«i uud 
out afWrwards, that he was a spy of the lady 
Portsmoutli's : and that he had earned lord 
Howard to her: and, as lord Howard himself 
t«>ld me, she brought the khig to talk with him 
twice or thrice. The king, as he said, entered 
into a particular scibeme with hiiu of the new 
frame of his ministry in case of an agreement, 
which seemed to him to be very ne^r. As soon 
as I saw the libel I ^vas satistied that U;rd How- 
ard was not concerned in it: it was bo ill 
drawn, and so littlo disguised in the treasonable 
part, that none but a man of the lowest form 
coukl be capable of making it. The report of 
lord Howards being cliai*gcd with this was 
over the whole town a day before any warrant 
was sent out against him'; which made it ap- 
pear, that the court hail a luind to give him 
time to go out of the way. He came to inc, 
and solemnly vowed he ^^'as not at all concerned 
in that matter: so I advised him not to stir 
from home. He was committed that night : I 
had no hking to the man's temper : yet he in- 
sinuated himself so into me, that without lieing 
rude to him it was not posvihle to avoid htm. 
He was a man of a pleasatit conversation but 
he railed so indecently both at the king and the 
clergy, that I was very imea-sy in nis com- 
panv : yet now, diirin;; his imprisonment, I 
did him* all the service I could. But Algemoon 
Sidney took his concerns and his family so to 
heart, and manage<l every thing relatuig to him 
with that zeal, and that care, that nttne but a 
monster of ingratitude could have made him 
tlie i-etum that he did afterwards. When the 
bill against lord Houard was brought to the 
Grand -Jury, Fitzharris's wife and maid were 
the two wftiiesses against him : but they did 
so evidently forswear themselves, that tin; At- 
torney-General withdrew it. Lord floward 
lay in the Tower till the Michaelmas tenu : 
and came out by the Habeas Corpus^ 1 went 



2 i7 ] STATE TRIALSp 33 Ch arlbs 

orthomiirt then>in; which Mr. Justice Jones J 
aloiieihiniiflit not tit to tfi^e, but onlerrtl them 
lo attoiitl H»v! fl.iv when tho court was full. 

And atrotiliii-.'-'iv on ThniMlay, Ai»ri! '28, the 
will cniiid ]\\r\ vlwuv lo the Kir. aiu! .^Ir. Mi- 
charj CltHlfivv (hroilv r to sir Kihnuiidhury 
Goilth'v^, \\\\o \i-a> tht'ir lonnuan, adJres^l 
hiinsk>lt thus to ihe i'oiirt : • 

.^Ir. OiKJf'rty. >Iy Ii>nl, I hare an hum Wo ; 
rei|utst to niako to *the Court on the bthalf uf 
iuysi>]t« and ant^thtT on the behalf ol* tho i;rfuid 
jury ilir the tvnnty i»f Middk>se.\. of wliich I 
aui toiemun. lliis qcntknnan. Mr. Wanl, I ' 
did ky of when I was swmni, t«>chnso anoiher : 
nuui thai was nii.r for the s*»nicts as beinsr . 
inort* exjHTicnosl, hut lio w nu!d n^t : and I ; 
heyr your |Mr«lon. if I >]ion!i! O'umvit anv fai- I 
luiv for wani of cxyo. i« luv. I^u 1 dcsirc, '. 
hcton- wo J.r^.H^vd u\*on iWn, litdtrtnient bffnre 
us that ihi«i 'sanie K:!/lv.:rr:s inav U* e\ainine<l " 
nlH>ut my lfcn.|!it»r's doaOi. of which I sup^Hi^e \ 
he raav know mv.oh, Uimuso in the printed 1 
Narrative he does si<eak of one De Puy, who ■ 
vas a very active n>an aSt»ui that niur.ler ; ami ' 
how ill a luan s^**- » or ho hath K^en, ^re d'» hope I 
he hath w n!uch tniih in him, as to ull whit ' 
he kiHw\s of thai horrid irimler. Tlien fore 1 
pray your kmtsiii,*. iliat you o ud*! srrant an 
liaivus Corpu* lo frtch hiui Mi«r\' \our lortl- ; 
»n!;» lo V e\u!uuK\l uinm i\\ax jKnr.t Ufor^' we '■ 
do piXHveil : that is all as to m\ s< If. ^ly lonl. ' 
•s ti» ibc Junk". »4« do aU of :i«'hair.h!y |«rcsof»i 
tliis !\%jv:T. ai;v!«Usir\» i? iua\ Nf rtr.«l i i C'-'urt. . 

L. C. Jms:.'-'. ^S'r Fr-i ::*..* IVtiiiHTto:).) . 
Uhai is ii ; a p^tiiu^n * \ 

I 

no imtiv t^ Fi!/harvt> : hv.' Hawk*»v* ihe iri- 
iu«ter of the Tower i.*>K h..u iiit;> h.s :r..'.: .ic - 
meiit : acdiMrtxaik^ »iih hvw vy-i e-'y to ti^ .} 
•U hv liiNiuinr diaJtvver> . Irt :.i U\ ,t"'n> l- w- 
liMi, Thfby, and the !^?':i '-i. is .i *i:N»r:\;!.'" . 
ot'thx'trs, ihc'.iiTh is wu*t\:l«iji ilut w-is :'u- 
pmesiNeio Sr ir.;o \et .m liu- siime t.'v: \,: 
writ lettefs t» his wif.. w'l » v 2s r.-.t il-.f. d ^- 
■lictetl to hiw. whi^*h I sLi^» a*'.ii r^.; !. •.-. wh:. '\ 
he iv«Ki her. r,-.'» he i»i# ••.—«. IK*! '.'.lvp v. ••';•. 
the hi>ivs of Iro. He erju-ir^** "-.r tv»'j-*K-; 
fi?^i> .iiT-*^-'** n*Hie : ore •*? iru'^* wj.* ^»''.: 
that *er\ vH'-ir;^ la *»lv.eh lu "i-.-Tcrt'l ir-* 
vot KYre l.v ^.is Uvl ci.: ' •• "i^.*v'. .', r.c-.» 
papvr iwrJU'-iF'-c "^^' T"''r.v.T ^rj:»^f rr" sv."«*r- 
liifvci. ;»"^* r».5 y- :' H.»v«*v >\ ^ .«. '*. \^'i 
act Ta Mirr *H rxTlrr*.-: -! • i ■ : ' s;.»\ i:- :Nji: 

|M{wV, \^ • I' ch « J -i *•'■::•.■•'" • . \ r.'N": •' but 
ftw fjiKth-sM -^^ *: ^»is s »^.•-\ •'•■?. -•■ i>i^ I'M 
it «h«we\i »hi£ .1 "> ^ »*:' •::: Hi**'*.. -» ^*i> 
ir«< he ''♦as >«H»i» J': .-rx.%*ir-:«s! f-. r t'"-* «tK 
the deaiirv •??'!' • '" «^*-r !»■/.: whe:' !^^ .- ■ rr 
|k««n! i»has vn^r^ Ir "-s. .•. ^> ''.'-♦ m -t "• > 
wi^ tiH*% v»-."re o'c''»i!:-tV ■• ; ^y » ■ ■ - 

nr«cC:%«i **a hxr ■■ ■_:•• ,'•. ■ ^jl . * j ~^ - ^ 

Mr. thar sh* -it-ii-rr*:- . r .X->..'u:" * -. ' -^ 

f^U. tfai^ L?!i* "^tisje iru.* ■•..»:*. "-"!?•■■•' •■.: 

^r, X^. 5v;*. 



II. l6BU—Preaedmgs 0g0hi9t p4B 

C/. ofCrowH. It b not snbscnbed by wof 

body. 

Jurors. But we do all own it, mj lord. 

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

CL ifCfown. " We Michael Godfrey, te. 
heinir sworn to seire in the grand inquest fa 
tho hundreds of Edmonton uid Gore, "^ 
couniy of Middlesex, vc. and beinff ycstad^ 
sent l«)r into the Court of Kin^'s-wneh, hyi 
mossen'/f r from the said Court, to be prewBliI 
the swearing of several witnesses prodiKedfli 
the behalf fv{ our sorereiffn lonl the king, M 
prove the tn:th of Sf>me fudicimentSy then ii 
the h-nds of the Clerk of the Croiro ; and *• 
ser^insT, that sir WilUani Waller, Smith. mJ 



^«A 




othors, were sw<im to give cndcnoe ^ ^ 
Kdwanl Fii/.harri», now prisoner m the Imai 
who in the late parliament at Oxford, W M ■* 
iv'acht d b\ the honourable House otT 
m the naine of tliemselvcs, and of afl 
nions of Engrland ; of wbicb, we the 
chael Godtrey, Sec. are part, and aa ji 
lie his iudses*il5o. — We therefore hon 
siro the opinion of this honouiaMe Court, 
ther it be liuful and sate for us, the nklGai- 
ftev, -Vc. .in L-ase an Indii-tment of the ail 
F!r/.harri> should be bromht beHne as) tafi^ 
ct»c\l to exaiiii'ie any witnesses in ivfemMe t| 
tlie sait? In-.ltctmeni/or any way to meddle wak 
ii. or [troceeiil unon it. noiw iihstanding the wM 
lm'x*acliraent, and Witi-s pursuant to it by ifat 
sa'il lH«uoura>Ie House of Cvowboitt? And Ail 
Sv i: ^- a STVui \»»>ii.i in law. and of so gnai i 
O'TiM'^'iviKV t-r r.* X''^ undertake in a pourtrf 
r\;Ii; no; <tHkd h\ onterence, and r Ptn ai a i B g 
\«.f nnt!'-ttrniiT»e<l .a ilie hii:ii Court of Pufia* 
liiv'.kt. — We thentor^ h;u>-.<ly desire the Ofi- 
TiiO!! o( fr.i* Coi:r« i.^xi the « hole matter, Whe- 
:hi: ku'ii'y 2!. J TKiiViv we u-^y pn^ceed to fioA 
ii,: iinl. I'-i".- r.i 't rif/hATTi<. or no."' 

>l7 i.. >Iy '. nt, we .!.» humbly 

i*ie rv*.*. ■. ■ .! ••: I. V' l'«>.in ;a this matter, as a 
:;:.• ^ ^ ! aei jl:i : ! "r w : on: N: t ween two mil- 
*: •. o^. AS v.v i-i. tl.ir.U :'. and shall be grourf 

1 C J l.'vk y ti. •^•.uTlemen of thejoiy, 

-1 :•"<-. I- -■■';■-: . S.r R'Ncrt Sa^'er.) My 
'.■^-•. .^ : .%.-<-•'. : ^ srarx ii'.t ■:ce i»i»rd : ihisIiH 
y.w'.r.'^-- n ;* :ji:.7v».iT».- th> jrnn*! jurryes- 
'.i n.: :•. . • • I '. •- s .;-> . ''e-ri:: « as di^^nst ampt- 
.r c'l;':' ■ . ' . »•- ""it'- y-i"" jji^iTieni- and is 
\%^rt' ts .' r-.-TV : - ..• r^r i!'. I'.ia:, the body rf 
t^ie I', ^-i^o. '. J- L-i i_^e-«<. :bnrt" lo hear the 
b'^i.-T .t V. .nf*.! i- Mr >'A".:..r andnysdf 
o-.'i i;*' .: .>■•" '.'. : .Lce. ar.*i «peDt sans 

i.r-v- • • • ^ ■• - . i:»J LI was all givCB. 

■ ■ t-> • •:-'.-... ^ 'jea-t:?! d*d seents 
■«. x-\' • V >» "o" ^* .i: i-\ h«KTid viBaifly 

x ijurv v.Mild bavte 
' -. V : " , ■•'*•.:■> tf.-y ha^e lae- 
•■ i- /u. :* ^. *^.-r ^s —z'' the otben 



\* i-i. 



•«.■■ 



I •. :. % 






V - \r:..rLey, we will 

*. ■: .i-.ic«i> i: c'f the jury, 

• - ^ -iutTcr. and iesns 



STATE TRIALS, 33 Charles II. iGSU-^Edward FUzharris. [250 



Uy proceed to find tliis indictment or 
Ld Dew yesterday of some scruples 
to my brotlier Jones when you were 

I lie sat in Court to ^ve you the 
ich be thought not fit tlien to ansM cr, 

II lo-dav. TVuly we would have all 
y and clearly done, that we may un- 
*w tie ^ all alonii^ in this matter. 
le is thu : Here wa«, you savi an 
ent offered affaiust Fitzliarris by 
»ns to the Lords, and that Impeac^h- 
r hi<^h-treason, wliicii was not re- 
lberpU|Hm there was a Vote of the 
ommons that he kIiouUI not be tried 
it inferior Court : you desire now to 
iicr you may enquire concerninsf 
, notwithstanding these tlu:i<rs that 
I thus? 

f'rey. Yes, my lord. 
We are very ready and willing to 
of the king's subjects in any matters 
t before us, tliat they muy* see there 
tltiDg' but fair proceeding in ail 
do tell ^Hw it is our opinion, that 
diug- any thing of this matter that 
t in the case before you, it is lit for 
ire ufion the Indictment ; and you 
o enquire by virtue of your oaths, if 
nt be exhibiteil to you : you caun(»t. 

take any notice of any sneh votes 
le of Commons aOcrwards, if any 
J^ere, ft»r tliey will not excibe Y'»" 
vam to enqufre of the matters pven 
ge), in case j-ou do not your duty ; 
ne if you haveevidencccnonpfh given 
ify you that the Indictment is true, 
iiid it. And hkcwise we ouirht to 
ording to jitstice, in cases that arc 
(ore us. Neither \ ou nor we can 

of these things, m caM? there be 

( you suggest ; nor will they excuse 

Ml or man for tlie breach of our 

afuHild do the contrary. AndthiK 

to you, not only as our opinimis, 
ipuiion of all the iud^^es of £ii^^- 
whcfu we did hear there was a srru- 
y yon the gentlemen of the jury, be- 
rouhl make the way fair and clear, 
es did assemble to debate the matter 
isfaction ; not that we were dissa- 

1 in it ourselves, but that it miglit 
-ou and the kingdom, that there is 
i fairness used in this case, as in all 
d all the juflges, nem, con, were all 

that you are not to take notice of 
m Kbingi ; but if the Indictment be 
nd you have evidence enough, you 
■d iL This we have endeavoured 
iifrction, to make your way clear. 
ifcliuinbly thank youi* lordship. 

■ 

hbiory went away, and aftenvards 



w 



99, 1681, sir Tho. Strinifer, 
■Btat law, moved for an Hal)euK 
gvptbe body of Eilwanl Fitz- 
— = — ' by the Court tOiOut the 



death of sir Edraundbury Godfrey. The Court 
granted the writ, and said, he should be ar- 
raigned u|H)n the iiulictment against him, and 
then tliey would examine him. 

Saturday, April 30, Edward Fitzharris was 
brought with a strong guard to the King's- 
beuch Court. 

Sk-rj. Stringer. Your lordship hath been 

{deased to grant an Habeas Corpus for Fitz- 
larris, andlie is bi-ought up, and attends here. 
L. C. J, We will send for Mr. Attorney, 
brotliei*. 

^V' J^tria. I begthis of your lordship, that 
you will be pleased to stay a little ; 1 know 
not how he comes to be brought up liere ; Mr. 
Attorney, it seems, says, he knows notliinir 
of it. ^ 

L. C. J. IVell, well ; send for Mr. Attor- 
ney, brother, and hear what he says. 

Which being done, and Mr. Attorney come 
in, the prisoner was broughtto tlie bar. 

Serj. Strinjzcr. My b»rd, I would humbly 
move lie ma} be bi-ougkt into Court to be exa- 
mined before he l>e arrai'^iied. 

L, C. J. W hy so ? 

Scij. Stritiger. My lord, we would have him 
(examined concerning sir Edmundbury God- 
frey's death. 

L, C. J. What matters it ? That may be 
done al\cr as well as belorc. 

Ci.tfCr, Edward Fitzharris, hold up thy 
hand. 

Fitzharri$. My lonl, 1 have been a close 
prisoner these teii wef>k.s, and have not had the 
liberty to see any one in tlie world : I desire 1 
may have liberty to see my friends, and speak 
vt itn them, before 1 do answer to any thing. 

Mrs. Fill fiat ris. My dear, plead to thejuris- 
didion of the Court ; Lore is a plea drawn by 
coniiHplforyou. 

L. C /. You had best consider well what 
you have to do. 

Fitzh, My lord, I desire this I'aper may be 
read by tlie clerks. 

Justice Janes. No, no: tlmt cannot be till 
you have answered to y(mr uidictnieiit. 

Ci, oJCr, Pull ofi'your glove, and hold up 
your hand. 

Fitzh. My lonl, I desire leave to plead to 
the jiuisdiction of tlic (Jourt. 

L. C. J. You shall have it. 

Fitzh. I desire tliis plea may he allowed. 

Justice Dolben. Hear yuurlndictment first, 
and plmd ailerwanls. 

I,. C. J. Look you, Mr. Fitzharris, let us 
thus far dii-ectyou: your ludding up of your 
hand, and hearing the'lndictment read, win not 
hinder you from any manner of plea which 
you may have to make atlurwards ; but you 
can plead nothing befoi*e. 

Ci. of'Cr. Pull oft* your glove, and hold up 
your hand (which lie did). And then the 
Clerks of tlie Crown n^ad tlie^ubstance of his 
Indictment to him in English. And then 
speakuig to liiui, said, Howsayeat thou, Edw. 



951] 



STATE TRIALS, 33Ckaeles 



Fitzharrii ? Art thou Ovalty of thuhigh-trea* 
■on whereof thou itmndeet indicted, and hast 
been now arraigned, or Not Guilty ? 

Fttih. My lord, I offer this Plea to he read 
fint, before I answer. 

L. C. /. That plea? Take his plea: let us 
■ec what it is. We take it to read it now. 

Justice JoHfi, Not to allow it. 

L, C J. Only to see what it is. 



CL qfthe Croa^n reads, 

* Et precd. Edwardus Fitzharris in nnmria 
persona sua venit et diet, quod ijise ad Indict- 
ainent. prfl*d. modo versus euin per jurator. 
pncd. in ff)rina pned. compert. respondere 
conipelli non debet, quia dicit quod ante In- 
dirtauient. pne<l. |m.t jurator. pned. in forma 
nru-d. ci>m|M'rt. si'il. ad parliam. 0om. 
Ke^N nunc inchoat. rt tent, apud Oxon. 
in C*o!n. Oxon. fil Die Nartii, Anno lleg. 
Dom. Caroli Sccundi nunc Regis Anglis, 
^e. Tricesinio 'IVrtio, ipse idem Edwvdus 
Fitzharris p<'r Militos, Cives, et Burgens. ad 
idem Ihu-lianieut. ad tunc et ibid, convocat. et 
assenihlat. de et pro pra'd. prodition. Crimini- 
hus et OlftMis. unde i|iMe idem Edwardus Fitz- 
harris iMM* Indiftament. pned. modo indictat. 
cxistit setnmduin I^iyeni et Consuetudinem 
Farliamrnti atvusat. et imi»etit. fuit coram 
Ma^fnatibuM e t Pruivribus tiujun Regui An- 
^Utc in txHleni Parlianionto per Summonition. 
i|isins Dom. Kt'i'fis ad tunc et ibid, asflcmblat. 
Uumlq; iniiM*tiuo \mvx\. in i^lenis suis robore 
et ellVvtn adhur ri'maui^t, sicut fier reconl. 
indc in Cur. Wirliamout. nned. remantm. plo- 
nius liifui't ti apiHin^t. Et idem Edwardus 



Fitjcharri^ uhmins dirii, nuo«l si quis in aliquo 

s nnjus Ue^i Angliie 
lie ahquibus IViMliiionibus, Criminibus, et Of- 



Ihu'lianuMiio Dom. Ke^is 



ttnisis, jMT ^lilitc^s. Chives, ot llurj^ons. sd hu 
jusmmli Ihirhament. i*ouviK*at. et assemblat. in 
h^|u»miHli Parliamom. accusal, ot im|N*tit. fuii 
civam ^Ia4:natibus vi IVix^bus hujus He^i 
.\nt:fli«^ in ct^lcni l\ur1iament. per (^ummonit. 
ipaiun l>(Hi). U<yis aMomblai. tunc hujiisnuHli 
rixMition. I'rimina et Offimsade ct pro qui bus 
hi^iiisiiKMli persona in hnjusmoili IVliament 
Monat. aft napsM. fiiii in I 



«sr 



IVurliainent. IVun. 

_ _ audiri, triari. et ter- 

Ikfft MBipcr hai'tenus c^Hisue- 

' JM MMruttl, et mm alibi m 

irer. quam in l^urlianioui. Et 

tardus Fitsbarris i^arat. est iy- 

AOB iDleiidit tjiuod Uominus Rex 

Cur. nunc hic <le ec pro l*Kidi- 

ouB,^ el Ofiens. nnv^l. ncsponden, 

• «i ipse ad IndKtaiueiit. pnrd. 

i. in fbniia mwd. Mwupen. ul- 

« omMtti Mrssi, 5£r. i\nu 

BdwHuna Pitsliarrttt %enticare 

^Jilin, Cri HMi n a> e«i>dRx%s. piu>l, 

- fntiL fsr jwrahw. praol. in 

ft^y ri tkat. ec meutiiMMt. 

• Umr Kilviaixhis Fiiaham* 

mfKL i waA tf MiJUciat e\tsiH. « 

1 91 m ft rw. pn» auibiis ip^r 

I nukMTM ui ru'hamMM. 



* pmd. in forma pned. fnawal. et tnijjelk. fisi, 

* et existit, rant unnm et eadem Pro d i ti o^ Crioi- 

* na et Oflens. eC non al. neque dhrom, qfNdk 
' iropetit. pned. adhuc in nmis rab nibara,?i. 

* gore, et eflhctn remanet^ 

L.C.J, LookjooyMr.FitidMnriiyMferAii 
pleading here, we UM not to receive raoh pUk 
mg as wis without a oonod's hand to it 

Fitxk. I deaire your kHeliip to 
counsel. 

X. C. X Who would you hato 
counsel? 

FUzh. Sir William Jonea, sir Franoii. Wa* 
nington, sir George Treby, Mr. Wilfiam^ Hh 
PoUexfen, Mr. Wallop, and Mr. Smilb. 

L. C. /. Here are a great many you ■mi' 
we will not enjoin any counsel to aervt "yii 
fiurther than they arewillin||^ themseheei M 
for sir Wilham Jonee, one en than you daifaa 
he does not practise now in Wrnlmmalni mj 
and therelbre we cannot aaign yon him ate 
he^eaae. 

FitMk, Then I denre ■v Franca Wmng^ 
ton, Mr. WiDiaiiis, Mr. PbOexfen, BIr. Wate 

L. CJ. Let tbcm be laigned rfoomwlfc 
him. We do aMign yon them for 

And now, look yon, Sv, yon had beat 

how jon plead this matter. Yon will da 
tothmkofitflestitbeniorefirtalto yon i 
you expect ; therefore we will gifo yoniaa 
to plead the matter you rest upon, let il he whril 
it will: we will gire you time to havoadnoi 
upon it, and you shall oe brought Udicr tgihi 
on Tuesday morning by rule. And in dienai 
time things shall stand as they do ; BIr. AMk^ 
ney ^ill consider upon the putting in of yov 
plei, what is (it to be done upon it. 

Fitxh. My tord, I humbly desire the Iftflrfy 
to see my wife and Iriends m the mean time. 

L. C. 'J. 3Ir. Attorney, why may not hi w 
his wife, so it be done m the preaenee of aoas 
|>ers<>n eatrustevl by the lieutenant, to aee ihrt 
noUiing be done that is prejudicial to the kiagf 

Att. Otn. I cannot oppose it, my Lord. 

Fi:zh, I desire my counsel may come to 
me. 

L. C. J. Mr. Fitzharris, we wiU 




couum4 to ctune to you, or else it wiU do m 
no good to assign them ; all we can do ihaBk 
done. 

At:. Ofn. My I/knl, with submiaBian, I em- 
cei\e you will not alk)w any body to cone to 
him, \o be alone with him ;* that wooU be lb 
way to (Hv^eul the discorcry of the 
he* is accused cf: I hope, if your 
shew him taT«Hir. you will «1o the king juste 

r.tik. My Lt^nl'. 1 be«rthaianyormMete 
haw lw«n named msv come to me. 

L C. J- \cs^ \htie four. And Mr. AUnv 
nc\.they srv f^iri^k-uien of fair credit and ft* 
putauoQ* 13 ih«^ w otUX : w-e hare no luiliiriM 
ihai they "dl d^t sny thing unfoiriy:^ wist 
nc «*ao 'Vi&!a«<vsbi\ do tvT asT man inluBcm^ 
diiK^a. « «* mu«i tv 

.4..- o«v M> lAvr.l. 1 am not agaiDitihiti 
Sol 1 wkv^M haic all done sat'tlj and wnatif 

KY the* ki:^. 



STATE TRIALS, SSChaHlbsII. l6si. ^Edward Fttzharru. [254 



My Lord, I have one things more to 
time yoar lordships have set is so 
thej cannot come to me perhaps. 

It is kmg enough, Mr. Fitzharris. 
f I caAttot gret them to come to me in 
irhatsbaUldo? 

You must do what you can ; we 
)in them to oome to you. 
I. This motion of his, I fear, is de- 
ut ofl* his trial. 

It shall not, Mr. Attorney. It is true 
' time, the middle of the temk ; but 
lire find time to dispatch this business 
time we hare allotled. On the other 
time they must have to consider of 
eref«nre tell him, it may be fatal and 
y'to him ibr aught I know. Indeed if 
insist upon it, we might compel him 
^ presently, but that we will not in 



Pray, my lord, give me till Thurs- 




I Know it is time enough for coun- 
w up a plea between this and Tues- 

To-moTTOw is Sunday, my lord, 
cnnnot oome to me then ; so I shall 
me day. 

>Ir. Fitzharris, it is time enough; 
ml waste the term ; for as we woiUd 

all the favour we can in equity and 
I we must not deny the king justice 
And you hear Mr. Attorney say, that 
|s (if they should delay the business 
■roald be prejudicial to much of the 
neas. It may be, that this dilatory 
qpend so much time of the term, that 

try it ; and therefore if we do give 
mr, vou must not grow upon us. 
«. Mr. Fitzharris knows this plea 
well advised on : There went a wnole 
i making of it. 

How should I know ? I never saw 
of it till now. I have had the sever- 
ne In the world : I have had no body 
I come to me. 

'. Do not complain of severity, Mr. 
. I do not believe any such thing 
used towards you. 

Pray, my kurd, give me a little 
le. 

. Mr. Attorney, what if we do this ? 
; Toa the plea upon Tuesday, he may 
■ Wednesday morning to put it in. 
m, I eannot oppose it, if your lord- 
lit so to orderit. 

JIpIIw, It is fit you should have it to 
B, Atloney, before-hand. 

Jnss. And have some reasonable 
■HUmtiflD what to do upon it. 
K - Wdl, delivering of the plea on 
tfMBing to Mr. Attorney, we do give 
Hliy to bring it hither ; and then you 
*b^ r«le again. 

J Ind, I hope I shall have the 
■gr wife this dav. 
» ati^ it wowMiilte nogn^ when there 



may be somebody by, to see that nothmg be 
done to the king^s prejudice, and your wifer 
nmst do this ; she must submit to be searched, 
that she carry nothing with her tliat may be 
pn-judicial. "And witfi these cautious we will 
admit her to come to you. 

Litut. of lower. >ViU your lordship please 
to give us a nile, to let his wife and counsel 
come to him P 

L. C. J. We do make such a rule. 

CI. of' Cr, My lord, we will make it part 
of the rule. 

Lieut, of Tower, We desire such a rule for 
our discharge. 

L. C. J. 8ir, 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 salely till we return out of^tbe Exche- 
quer, and then we will examine him. 

Serjeant Stringer, My lord, we think it wiU 
be a short business and soon over, if you please 
to do it first. 

Fitzh. My lord, I may see my wife in the 
mean time, I hope. 

L, C. J. Do you insist, brother, that we 
should examine him presently ? 

Serjeant Stringer, My lord, Mr. Crodfrey 
desires it 

L, C. J. Tlien we will presently. 

Lieut, of Tower, Must his lady speak with 
him? 

L, C. /. Yes, after he is examined. lieu- 
tenant of the Tower, bring Mr. Fitzharris 
into our little room, wliere we will take a clerk 
and examine him. 

Mrs. Fitxharris^ to her husband, (the court 
being jnst risen.) My dear, do not confess any 
thing about the death of sir Edmundbury Go({- 
frey, nor the Plot, for you will be betrayed : 
speak only to little things. 

[Then the Prisoner was carried away to ba 
examined, and after that to the Tower.] 

On M<Hiday, the Sd of May, sir Francis 
Winninglon and the other three gentlemen as- 
signed of counsel for Mr. Fitzharris, came to 
the bar, and moved the court for an explana- 
tion of the rule concerning themselves, and the 
business they were assigrcd for. 

Mr. IVtUiamt. My lord, 1 am to move your 
lordship in a case, wherein I am, with three 
others of the gentlemen that attend this bar, 
assigned of counsel for Mr. Fitzharris ; and 
that which I would beg for m^-self and them, is 
this : There is one thing we desire may be ex- 
plamed a httle in the rule. I humbly appr^end 
your lordship gave leave to the counsel, whom 
you so assigned to come to Mr. Fitzharris, 
and entrusted them with the liberty of speaking 
with him alone ; but by the penning of the nde, 
we apprehend that the same restraint is pnt 
upon them, that is upon other persons, to have 
somebody by at their being with him. 

L. C, J, The lieutenant sent to me on Sa- 
turday about it, and Itoldhim it did not extend 
to you. 



it55] STATE TRIALS, 33 Charles 11. iGSL-^Procieiings agahiH 

Sir F. Winningion. We think it may have a Mr. Wallop. For mv part, my'lord,ih< 
constniction t^itlier way ; but we desire it may lice 1 had was but very lately : I wwt by in 
be made iilnin, as you meant it. 

L. C. J. We tcl( you it is plain, and it was so 
intendetl. 

' Sir t\ Win. Therefore vrc taking it that 
your lordship pronounced and meant it so, do 
ilesire it may be so expressed. IVc are satis- 
fied that it uas your Iordship*s intention ; we 
desire the clerk may make it in plain and intel- 
ligible words. Aud there is this iarthcr in it, 
]^iy lord 



L, C. J. yiVe declare it now to you, it was 
so meant and int(?ndod. 

Sir F. Win. 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 doin^ 
our duty to the person we are assigned of coun- 
sel for. But tndy, so soon as is ap|)oiute<l l»y 
your lordship, it is impossible for us to prepare 
thins^ so, as to bcn^ady by Wednes<1ay morn- 
ing. 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 solicitor in the cause 
that may attend us. The indictment 1 have 
not seen* that we are to plead to, and truly I 
think the course is to have a copy of the indict- 
ment. 

L. C. J. We deny that, sir F. IVinnington. 

Mr. William*. It is impossible fur us then to 
get ready in this time, I hunddv move you will 
assign some convenient time, 1 know your ;ord- 
bhip will not ])Ut an linnlship upon us that art* 
of counsel, to pleail such a matter so quickU. 
It is a matter of diiliculty, and there are n(»t 
many precedents in it ; aiitl therefore it will re- 
quire more care than onlinary. 

Sir F. Win. My lonl, we ought to present 
thins^ to the court as thev ai-e in fact, that wc* 
may not lie under any reilectiou from the court, 
nor any l>ody else. ^'ou made a rule on S'a- 
turday, that I should l>e of counsel (or him, 
(which 1 submit to) but 1 kni-w not of this ti 1 
utlerwai'ds. I never saw the plea, nor any 
paper in this cause as yet : The rule was left at 
my chamber tliis last night ; and when I saw 
it,*i\Ir. Williams and we got togi«iher in the hail 
this morning : we could not do it till just now, 
aud we come now to wait u|M>n the court, to ac- 
quaint them how the matter stands. I was not 
in court, when you gave your directions about 
thin uiattiT ; but when I fuul what tlie nature 
of the case is, I shall lie ready to do mv duty to 
the court, aud tu hiui wlio is uiKin his life. It 
u a mighty cause, it is a cause that may he, if 
we do not acquit oui-moIvcs as we on:; lit, have 
retlecd'in upon our posterity, if we do not do it 
as well as we can. TlienJui-e wi» desire some 
reasoniible time, that we may ha\ (* cropien of thtf 
papers and thiuirs concerned in tliis caus<.', as 
\\ic court shall direct. And we are assured 
your ionlship is so well acquainted \uth the 
tttoai mctfaotl in such case^, that you will give 
«s all the favour in it you can. 

7 



tire 

when this person Fitzliarria did desiie con 
and your lordship aBsigned me amongst 
rest ; but nothing of the order was broug 
me till this monung : so that I know imM 
of the matter less or more, than what 1 1 
upon the reading of the paper here onJSatui 
I do not desire time for time-sake, or for dc 
but we tliink the nature of the thing is sue 
will re<}uire great consideration, and we d 
convenient time to prepare it for the court. 
X. C. J, Look you, sir Francis Wini 
ton, you must consider here the nature of 
case: This is an indictment of high tro 
ajid there is notliing I see tliat is so {vreatly 
siikrablc in the case, but the height ol 
crime. It is an extraordinary crime inde 
he be guilty of it (for I speak not to preji 
your client, but of the thing itself.) It is a 
son of a very high nature ; and then what 
we to conuiaer in this case ? We might 
tiikeu your client at advantage here, and il 
been no uijustice if we hail made him plead 
me<liately as he would stand by it : and wi 
not to consult your leisure, but your cli 
cause : he hath pitched upon 3'ou tor his o 
sel; we have given him three days tilt 
plead as he will stand by it, SatunlaV, Moi 
and Tuesday, and he is to come with his 
u|>on >V eibiesday . We have ap|)oiutefl for 
veniency sake, that you slionhl give a co| 
the plea to-morrow morning to Mr. Alton 
hut we do not tie you so peremplorilv to 
j copy, that you may not vary in wioi^lsfroni 
I torm. (live him but tlie substance of the 
• and we will not tie you to the imrlicular ft 



won Is. I'erad venture Mr. Fit/.harris i 



! not have expcTtetl three days time, in coux 
law, uiH>n such a crime, to put in such a 
when he tells us, he will plead siicciaily i 
jmisdieiion of the court. But we have dr 
in this casn, to shew, that all the fairness 
can )>osKibly lie itsed shall be iiseil. Oi 
other sid?, we mu.st not s|»end all our tinM 
iis to let tlie term slip fur his neglei^t of wa 
u|u»n you, therefore if he will delay to soi 
advise' with you, he must sutfcr tor it. I 
: |>ose he diil nr>t c(mie to you till to-moi 
what can w e help it ? 

Mrs. Fitihanis. There is no solicitor, 
lonl, to go to the council. 

L. C, J. Well, we must not spin out 
term to please him : he must take more « 
1 believe lie would by dilatories be ir]ui\ to 
it off all the term. If 3Ir. Attorney gives 
sent for more time, well and grnid. 

Mrs. Fit'hjrris. I hope your lunUliip 
j give leave for a solicitor; without yoiu-1 
ship's lea\e iiom^ will dare to venture. 
I ha<l the ruh^ so w^y late — 

CI. of Crjwti. They had il at three ol 
clock m the al\cnioon, as soon as it coa 
di'awn up. 

Mrs. FUzharrii. Tliat copy was bra 
to the lieutenant of the Tower, and he la 
away immediately. 



STATE TRIALS, $S Charles II. \6si. -^Edward FitzharrU. [^5S 



*rmm. Another copy they had from 

'eidiiif. 

Uzkarris. 1 iie\*er saw my husband 

ver tiU yesttrday in the afternoon, 

an iornorant person, and know not 
I in it without a solicitor. As soon as 
t copies of tlie rule writ out I carried 
lese gentlemen. 

\Ujrfen, JMTy lord, I think it will be 
upoi us that are of counsel, to be so 
in point of time ; for my part, the 
€i under my door the hut ni^ht, and 
9t till this morning': It wdl be a 
rd matter fbrns to j^ the plea ready, 

aght of the indictment. Things 
erred to be the same ; which we 
leaa we see what is there alledeed. 
hath been kept dose prisoner, and no 
red to oome at him to instruct him : 
re not ao much as copies of any thing 
art make use of. We have no con- 
my hnrd, in this matter, but what is 
s by the court ; and we do not know 
pcra, if there be any, how we should 
form ; and that is it, my lord, which 
iavy upon us ; if this mao*s business 
carry for want of putting it into due 
Unine will be upon us, who are as- 
counaeL Therefore if your lordship 
idcr these considerations, to gireus 
enre to see tlie indictment we are to 
ire may be the better enabled to do 

Vm, Really, my lord, I ought to deal 
ih Ae court ; without a copy of the 
t, 1 know not how we shall be aide to 
« ihoiild do. 

Amms. My lord, I do really more, 
IV of Fitzharris, but tor my own re- 
I eannoc put my hand tu a plea of 
pence, without time to consider very 
; and unless in truth, I ran. see the 
t, and compare the plea with it, to put 
a fit fur tne juflgment of tlie court. 
things cannot be gi-anted, I desirt^ 



r. Why, gentlemen, see wSiat you 
se do you find any precedent of a 
^ed for High-Treason, that would 
le^misdiction of the ctnirt, that had 
nven him than is in this cas(^ 'f 
I ta. We do not know wlmt his plea 
f kvd, till we have seen it and consi- 

L Your client told us all, and we 
€ oa veff^- wetl, that it is to the jiiris- 
Ike court, and can be no otherwise. 
Any thing else vuu may give in 
Mt guilty ; audit would be con- 
WV trial. 
Ha. My lord, it may happen to be 
pri^ plaadable to the jurisdiction of 
r^pknownoCwhatitwiU be till we 
|ktllniigsiiecesMiry to draw it into 
pirae consequf'ntiaby, it is the con- 
Mfaat; bat the ground of our mo- 
^fci ii fbr o w t U rw. I did appn;- 



bend by the rule, his special plea was to be ad- 
mitted if he tendered one, let it be what it will: 
Wc must consider many things in a case of this 
nature ; and at last, whether it will be to the 
jurisdiction, or what it is, we cannot tell as yet. 
And till we have seen the natuie of the things 
and what is necessary to prepare it for t{ie 
court, ] cannot venture to give it its proper 
term. But our time is so siiurt, if your lord- 
sliip will aifonl us no longer, tliat we know not 
how to be ready for it. Your lordship doe^ 
speak of Mr. Attorney's being attended with 
the substance of the plea, not tying us to the 
form in the copy delivenxl to him. ]\Ir. At- 
torney was here u])on Saturday, when this 
matter was first started, and he knew the sub- 
stance then : We know not what it b more than 
by report. It is a plea that so rarely happens^ 
that wc must bo cautious in wliat form we nut 
it. It is, af your lordship hath been pleased to 
say, an horrible treason that in the indictment 
is Sjiecified. We must not speak, nor do not 
mitigate the heinousness of the crime ; nor do 
we speak it because it is term-time, and may 
hinder our other business : We shall all of us^ 
I am sure, not at all consider oiv own time, or 
loss in the matter ; but it bdiig of so great 
weight, we desire reasonable time to do our du- 
ties : we name no time, nor dare do it ; we sub* 
mit that to the court. But, my lunl, under fa« 
vour, for the copy of the indictment, we do con- 
ceive it is necessary that we should see a copy 
of it ; and wheu the court is pleased to admit 
the iMrty to give in a special plea to the matter 
he is accused of, and assign him counsel to pleold 
it, I take it to be very rational and ixmsonant to 
law, that we have a copy of the charge, 
p L, C. J, Sir Fran. Winnington, tor you to 
come and say these things here, methinks is 
very strange. I tlunk } ou can sliew us no 
precedent, tliat ever so long time was given to 
any man to plead to the jmisHlit'tion of the-rourt, 
nor that ever a copy of ihe indictment was gfrant- 
ed in I !igh-ireasi>n ; and for yuu, because of the 
greatness of the treason, therefore to go about 
tomake iiKbflieve, that it is more reasonable 
that a copy of the indk'tment ^4u)^Mbo^p^anted 
in this case than in another ; that the greatness 
of the crime should be meritorious, aiul dos«;rvQ 
a favour of the court, not granted in other cases, 
is a thing extraordLiiar^\ 

Sir T, Win. 1 do not pre «*s it that way ; I 
pray I may be undei-stood aright. Ui>on what 
ap]ieared tlic other day, upon the nutiirt* of tlio 
plea, I present it to yonrroiHiderdt'u>n, \^hethcr 
or no, when y«m ha^ i; been plea$e<l to admit a 
special plea, you W\\\ not let us sec that whicb 
ivc are to plead to ? 
L, C. J. No, it was ne**er tliought of surelv* 
Just. Dolbcn, jVo, it hath been constantly ((e« 
nied in cmses of felony and tre:is(»n ; and so vou 
will find the practice to have always been, but 
I will tell you uhat hath been dune sometimes^ 
they hai'c*grant<^ some lit^ds out of the in- 
dictment, that should enal»le the (Kirty to fit hi$ 
pica to the eliarge ; and that was donV in Wit* 
typole's case, upon a plea of Ant^r fntuMnift 



1 



259] STATE TRIALS. 33 CuABLSS II. l6sl^Proeeedimg$ aguiitH 



[« 



Hiey gffcre bim the times, and some other en-- 
ciimstoncet, to (It his plea to his case ; but nerer 
was there aoepy of the indictment granted. 

3Ir. Walhp. Aly lord Coke, in nis preface 
to the third Report, declares, That it was the 
ancient law of England, and so declared by act 
of parliament in Edward 3d's time, that any 
subject may, for his necessary use, have ac- 
. cess to records and copies of tnem, he they for 
the Icings or against the king ; and that the 
practice to the contrary is an abusion. 

L. C.J. 80 then, 5lr. Wallop, you take it 
thnt ^ve are bound when any man is indicted of 
. felony or treason, or any capital crime, if he 
say he must have a copy ol the Record, wc 
must iB^nt him a copy of the indictment : if 
>ou think so, the court and you are not of tlie 
same opinion. 

'Mr. Wallop. I inform the court >*lint I have 
rt.*ad and seen, and where it is to be found. 

Mr. Williami. My lord, it may be necessary, 
for aut^ht we know, fur him to plead over to 
the fact laid in the indictment, not guilty, as 
sometimes it is requisite for the |)arty to do. 
. Now if we should mistake for want of having 
what is necessary, and thereby nreclude him of 
the advantages he might have liad if the plea 
had been rightly drawn, for nught I know, it 
will lie upon me for '.ver. My lonl, I do it 
merely out of caution, and for my own rqmta- 
tion sake : If any legal advants^ should be lost 
by my unwariness, it will be a peq)etual reflec- 
tion upon me ; and therefore I am so earnest in 
thitt case. And, u\y lonl, I can toll you what 
was done in a case \vliiirein J was ol founsol ; 
it was nut a cast* of treason iiuJeed, but it was 
murder, the next crime to it ; it was the case of 
King and Tliouias. Thomas was imJioti'd uf mur- 
der in one comity, and found guilty of man- 
slaughter ; and aUerwards was indicted for the 
same munler in another county, and being 
. to plead this matter 1 did insist upon it, that we 
•ughtto have a copy of the intlictment. There 
was some di.'bale at>out it ; but at last we had a 
cop}', and wc alledgcd there, as here, it was 
im|>ossib1(' to plead without it : and the cause 
was removed nither into this couit for judg- 
ment. 

Just. Dolben. Tlie first indictment you might 
have a copy of, for you were to plead the whole 
record. 

Mr. Williams, Nay, we had a copj' of tiiat 
to which we]»leadc<l. 

L. C. J. Mr. Williams, you tell us, you may 
pcradvcnture have occasion to plead over when 
you know it is If igh -treason tliat you are indict- 
ed oi\ in fnuning and punishing a trensonalde 
paper, cannot yon ilin-rt your client to plead over 
wiih<nit a copy :' Certainly wlial y<iu alledge 
in tliat, for a copy of the mdietment, is * non 
causa pro cau^a. 

Just. Jones. W hat prejudice will it be to your 
dicnt to plead over 7 

Sir F. Win. My lonl, wc only oflTor these 
things for ourselves, and we hope we shall not 
he presKed to do such a thing as this, witlmut 
lla?ing reasonable time to consider and delibe- 



rate of it, and without havtn^what is becon 
in order to do it. 

[Then Mr. Attorney being sent for, ctt 

into the court.] 

L. C. J. Look you, Mr. Attorney, d» 
gentlemen that were aasigiied of counsel 
Fitzharris, do move the court here, sod ai 
they would have longer time to draw up 1 
plea, ibr they must make use of several cop 
of papers, and they cannot so soon olit 
them, nor find out those records they musl a 
or other things as ingredients to this pku, ia 
short a time ; and tfiey say likewise, tfa^ it 
desire a copy of the Indictment. Nov, 
truth, they ought to have given you notiot 
this, that you might have been here likerai 
hear what they say : If you do rnn arii t 
^ve them longer time, we shall be readT ta 
It : but without it, we shall not be wuGng 
delay it. 

Alt. Gen. I think your lordship ani t 
court gave them a very just and maonl 
time, when you allowed them four ^ys ; a 
these gentlemen are mistaken, if they tU 
they are assigned as counsel to all cfM 
They are only to draw up a plea oponll 
matter that is alledged by the prisoner, sal 
the jurisdiction of the court. 

Sir F. Winnington. No, my lord, I Ij 
your lordship's pardon: The rule is tapll 
the special matter without more saying. 

Aft. Gen. My lord, under favour, itisll 
say, and so is the course of law ; for the pi 
^ioner ought to actjuauit you with the poimil 
dt^ires his counsel to lie' heard to : And b d 
ease, Fitzharris did acquaint the court befiml 
- would plead, tliat he had something to b^l 
to the jurisdiction of the court; and isl 
wife directed him when she gave him fthepi|p 
1 suppose she had otlur advice upon it ; i 
she could not draw it up in that form it a 
herself; and he did ae(|uaiut the court, be I 
matter to plead to the jurisdiction of theooa 
and concluded so in tlie papier that %ras ra 
And thereupon, according to his prayer, be I 
counsel assigned hhn these gentlemen. I efl 
seiited to it, as it was just I should ; but i 
they should think, that they arc to adrisek 
in other matters than that particular i| 
which tliey are assigned, I know they hi 
their duty' better than to ofler at any fli 
thing. Now since then there is but one iM 
point, tliC jurisdiction of the court and nod 
else, for they arc not to advise in other malM 
I think it was more than strict justice, nq 
was a very great favour, for all menongntli 
rc-ady to plead such pleas inuuediatcly. 

L. C. J. \vSt hi strictness, we might kl 
required him to plead, as he would stand I] 
presently. 

Alt. Gen. The law is, tliat he must htt 
re:idy, * in Poigne,' to make it aj^pear that' 
he avers in his pli*a is so ; theretorc you ab 
not have given him any longer tinie : te- 
cause all the world might see the court 
king's counsel dealt fairly in this mattWi 

1 



tfl] STATE TRIALS, 33 Charles II. iSBl.^Edward Ftttlurri$. 



[262 



•ji 



iid DOC mean to take advantage of any thing 
lliitfoihed like a surprizei 1 consented to that 
tJBetiiat your kntlHiip was pleased to set: 
And n for die copy of the indictment, I know 
■oiaij reason they have to desire it ; for tliey 
HBMt to adnse in- that, what detience he shall 
tat only upon this matter he hath al- 



MM. 

iC^J. Look you, gentienicn, what Mr. 
iiiiMij tells ytnx is so, and we do exi>ect that 
yn ihoold couform yourselves to it : \Ve have 
iifffB Tsu three days time, which is sufficient 
■r Ml a diing as this. And Mr. Attorney, 
vttiUtbemthas when we did direct tliem, 
UmAsj should deliver vou a copy of tiie 

eto-iMrrow momiiifif. iVe are not so cri- 
widi them, as that we nill not rec«nve 
Aor alBa, if it be valiant in form from that whush 
terterertoyou. That that we intended by it 
im, That they shoukl deliver to you a plea, the 
VMinsabrtaQoe as that which tliey do plead 
hat I If they would alter it in the form, we 
«i gifathem leave to do that without any preju- 



1' 



AU, Gen. We will never pinch them in 
fim; I tUnk 1 liavc matter enough. 

£. C. /. I tell vou truly, I do believe some 
Kails of his had counsel to draw up this plea 
ArUm. 

Ati. Gem. A great cabal, no doubt of it, my 
kri? 

Mr. Wallop. My lord, I desire that counsel 
W aniffnedin my place. 
,C.J, Weass^[ned1iim those that he re- 
■M, qcepting su- William Jones ; and we 
ilMtdsny to mit in sir Win. Jones's name, 
bRMtwewoiud not assign him, but because 
kkthdediDed the bar, and does not practise 

Mr. WiUmms. We do not draw in the name 
if«WB.Jones, or decline him: We submit 
tojWMder about ourselves; but we desire 
tilfnn that did draw this plea may be add- 

LC. J. If hia wife desira it, and will name 
. >■» ik ihaO be 90 

fitk 

^CJ. Sir, he understands what he woidd 

^snre ! and we cannot discharge you ^^P^° 

^wdi account. 
*. Wmilep. Here are many particulars and 

^r averments, which camiot so suddenly be 

^.mt as the time allotted. 
. Ifi. FUMkarru. My lord, there i« not 
^^iTlboae gentlemen assigned that 1 writ to my 
Nhud to aak for : I directed him eij^ht. 

LCJ. ^Vho ebe woukl you have I* 

4ln. FUxk. There was in the paper sir Wil- 
^ Jones, his majesty's late Attorney Gene- 
I sir Francis Winniogton, Mr. Williams, 
^ Speaker *»f the House of Commons, sir 
kmelV^Vf Recorder of London — 
^f}*ollexfen. Your lordship may easdy 
mJire bv this afentlewoman's carriage, how 
lule lOce to. be Stetructedin this cause, when 
ody follows it but she. 



I desire to be put out, and he 



L. C. J. Do you desire sir George Treby 
should be added ? 

Mn.FUzh. Yes, I do. 

L. C. J. Let it be so then. 

Mrs. Fiizh. And sir William Jones ; I will 
do what 1 can to get him to come. 

L. C. /. We will not enjoin him ; but if ha 
pleases, we leave him to his liberty. 

Just. Dolben. Why, mistress, you are got 
into the hands of gentlemen that are usk'aciied 
and able in their protessiou as you can have ; 
you need no more. 

L. C. J. Do you desire Mr. Smith ? 

Mrs. Fitzh, Yes, my lord. 

L. C. J. Then add Jiiui. 

Mr. FolUxftn, We dcsure that there may he 
leave for a solicitor, one that in» y carry papei's 
in the presence of the Lieutenant^ 

L. C. J. We have confidence in you, but 
not in other |)ersons ; therefore we must con- 
Kider of that : But what think vou of it, bro- 
thers ? We may permit, 1 thin(c, one to come 
from tlie counsel to him with that caution. 

Judges, Yes, my lord. 

L. C. J. Let the pa|>er8 be then insi>ecteil be- 
fore by the Lieutenant of the Tower, and be 
from one of the counsel ; and so tliey have 
Ubcrty to do it. 

Att, Gen. There is no need of any papers, 
my lord — 

L. C. J. Mr. Attorney, do not oppose that : 
Let them have Uberty to carry any papt^rs tluit 
any of their counsel, these gentlemcm we have 
assigned, shall send to him, or any from him to 
them ; so as the Lieutenant may have first Uie 
sight and jierusal of them. 

Att. Gen, There Ls no great harm in that, 
though 1 see not that tliey will need any 
pa|)er8. 

jL. C. J, Yes, their plea to the jurisdictioa 
must arise upon tact, which may be out of some 
pa^iers. 

Atl. Gen, You arc assigned, eentlemen, but 
to one pouit, the jiuisdiction of me court ; re- 
member that. 

Mr. FoUexfcn. Your lordship is pleased to 
say, That we may vary in form from what we 
deliver to the Attorney General ; and Mr. At- 
torney is pleased to say, he will not pinch us 
as to form : How shall we be secure no advan- 
tage shall be taken of the form ? 

L, C. J. It is only as to that particular. 
You shall not be tied up to the form you de- 
liver to him. What advantages there may be 
concerning the form of the plea you bring 
hither, we will sec shall not be taken. 

Sir Fr. Wm, Will your lordship please to 
afford us no longer time 1^ 

JL. C J. When you are to plead to the juris- 
diction of the Court in a case of liigh -treason, 
and such a treason as tliis is, Mhat reason is 
there that so much time as is granted uln^uly 
should be given you ? 

Sir Fr. Win. Shall not we have a coj.y of 
the Indictment neither P 

L. C. J. You will offer tilings tliat are not 
to be granted to you, * adcaptaudum popuium,' 



S6d] STAIS TRIALS^ 93 Chaklbs U. loSl^^Pfoeirngs ^g&imti 



that ytra nuy say you are bardly med, and 
iiii<j^htily straitened in this case. 

Sir,/. Win, No, my lord, we do not offer it 
for any such end. 

Alt. Gtm, Gentlemen, remember you have 
not liberty- to plead any thin^, but to the juris- 
diction ot tlie court. 

Sir Fr. Win. We must submit to what your 
lofdship orders in it. 

Upon Wednesday the 4th of May, 1681, Ed- 
ward Fitzharris was brought from the Tower 
to the King*s- bench- bar. 

CI, qfCroKn, Eduurd Fitzharris, hold up 
thy hand fwhich he did) : thou bast been in- 
dicted, ana arrarg^ned for high-treason; how 
sayest thou ? Art thou GuUty of the high- 
treason whereof thou standcst indicted, and hast 
hecn arraigned, or Not Guihy ? 

Fifzhatris, I have made a plea, my lord, 
allien I desire may be received and allowed. 

Mr. Wallop, May it please your lordship, I 
desire to be heard a few words. 

JL C. J. Would vou not have the plea 
ffid? ^ 

Mr. Wallop, I have but a few words to say 
before it be read, if your lordship ])lease, ibr 
ourselves, or at least tor myself. Acconding to 
the best instructions we nave had, we have 
drawn up this plea, and I pray it may be en- 
tered so. But, my lord, I humbly conceive 
we have not luul, or for my own part I have not 
hadtliose iiustructions that were i\i to direct 
me in tliis cose. It is a special plea, and of a 
uiattcr tliut rardy happens; and tiie nature of 
this specLiil pica is, that the matter contained in 
the indictment and in the imjieachmeut, is one 
and the same mutter. Now I have not yet 
neen, nor could I come at a sight, thougli I 
iU'.sircil it, of the iui}ieacbmont, nor of the in- 
dictment : hut 1 humbly conceive, that by the 
law, tiK this case is upon a special plea, the pri- 
apner ought to have a copy of the indictment. 
And I do not say, that e\crv one may demand a 
copy of ills indictment to iind taults ; hut upon 
a s[)eeiul plea, and particularly upon this, 1 
huxnhly conceive he ought to lia^e a sight and 
acop> of his iiidietment. 

L, C, J. W hat, would you not have your 
plea roeeived ? 

Mr. Wa'io}^. Thus, my lord: ifwecanha\e 
no iainliCi' instructions, nor can by any other 
means co»ie to a sight of tliese things, then it 
is the best pica we can make in such a case, 
and 1 avow the plea : but if any tiling should 
iall out amiss to the prisoner for want of such 
a sight, 1 pray it may not he upon ute. 

X. C. J. Head the plea. 

CV. of CroTvn. " lit pnedietits Edwardus 
Fit/.hurria; in propria persona sua \ on. et die. 
4|U0!l ipse ad indictament. pnediet. res^adero 
4rom|M-lIi non deliel, quia die. «(uod ante indicta- 
ment. pi-u.ll. per .lur. pned. in Ibiina pned. 
comport, scil. ad Pari. I)um. Ueg. nunc, in- 
jcohat. tt tent, apud Oxun. in Com. Oxon. 
viuwiino priiuo diu Martil Auno Aegoi diet. 



Dofm. Reg. nunc trioesimo tertio» ipse 
Edw. Fitxbairis per Milites, Civw ct 
genses in eodem rar. 



at omnium Com. AngUe, lerunduin kgv 
cons. Plari. de alta Proditionc ooimin Mt 
et Procerib. hujus Regni Angl. in eodem 
assemhlat. impetit. suit ; qus quidem im| 
in plenis suis robore et effect, adhuc rei 
et existit, prout per Record, inde inter Ue 
P^uiiamenti remaneos plcnius liquet et «p| 
Et procd. Edw. Fitzharris uheriut die. 
alta Proditio in Indictamento prsHLper 
pra-d. in forma nrxd. compeit. specifici 
meutionat. et aUa Proditio onde ipw pn 
Edw. Fitzharris iu Pari, pceed. mlodo ut 
fert. impetit. tiiit et existh, sunt una et e 
alta Proditio, et non alia neque divem 
quod ipse nraed. Edw. Fitzharris in Ini 
mento prira. nominat et prsd. Edw. FiHl 
in impetitione pnsd. nominat. est ana et e 
perwna, et non aliaueque diversa : et hoc ] 
est verificare, Vc. Unde ipse prsd. Edw. 
liarris petit. Judicium si Cur. Horn. S^ 
super Indictamentum pned. versus ipsuii 
ierius procedere vult, 6ec." 

Mr. Wiiluimt, My lord, we humbly i 
being assigned of counsel tor this geBrtie 
3Ir. Fitzharris, that this Plea may h 
ceived. 

L. C. J. Mr. Attorneys hare you hsa 
tended, according to the rule of Court, 
this plea ? 

Att. Gen. No, my lord. 

L, C. J. What is the reason of that .' 

AU. Cm. Here is no more in effect, 
wluU was offered four days ago, when co 
was allowed him. 1 sent £Lit nivht h 
them for a c<»py of the plea : indeed vcsk 
at noon they sent me this note, that Fitzl 
intends to stand upon his plea, that he s 
impeached in the House ot Peers. I sci 
know of them whciher they would plead 
to the jurLsdietion, or in abatement, €st in 
they declared, they wou\il not plead to 
jurisdiction, but now I see it is to the j 
diction. 

L. C, J, It is so ; and that he propos 
plead at tirst. 

Att, Gtn. It is true, my lord ; but thus 
sent me word. 

L. C. J. And as a plea to the jinrisdictio 
it coneludi*s. 

Mr. Wiiltaws. My Innl, wc have dos 
that is iK)ssi))le for us to do in this case. 
Court mrccte<l us to attend !\lr. Attorney 
the suhstan(*e, and so \ie ha^'e done ; bni 
form, we Inul liberty to do as we pleased ii 

L. C. J. You need not ^o about to ej 
it, that you ha\ c not done it ; we chargi 
with nothhig. 
' Mr. H///irt»is. I do not go about to e? 
it ; we do nut take it as a chaise upon us. 

L. C. J. All we say Uthis : if Mr. Attt 
had had it, [K'radvtfntiire he might hare 
sidered of a replication by this time, or 
lie would do concerning it ; but if be hstl 
had time, we cannot expect it from him. 



STATE TRIAL$, 33 Charles II. \Cn.—Edwari^ FitskarrU. [2£6 



V. Hljt, My lord, I only beg one word 

attor of fact, and it ig material as to 

Bt lo uig« it. We did send several nies* 

to geky if it were posMble to be ob- 

a ooyy of the Impeacluiient in parlia- 

We neat to the House of Lords clerk 

; but they that went down, tell us the 

not ia taviD, or else we had sent Mr. 

y the whole plea at that time. 

. /. I QBly ask the qi^ion, to see whe- 

*. Attorney hath had time to think of it. 

Gem. My lord, 1 think 1 need not any 

tfaiv case. 

. /. I'ray so on, Sur. 
Gtm. Mylto^t I do pray your judg- 
poB it ; lor it is a {dea that is insufficient : 
iiiio lAem to bar you of your jurisdic- 
iwwLj 1 obsene that whosuever will 
plea to the junsdictiou, if he have any 
to filnul, must have it ' in poigne,' must 
e it is a Cuuit, or at least most produce 
sworn, that the Court may see there is 
I dilatory in the case. And ior this 
, it will appear upon ejcamination to be 
fhvolous plea ; for there is no such 
depending as tliis plea alledges. Hut 1 
tfaasa pk»to the jurisdiction of the 
', lail such an one as will plead such a 
icmuBt have the record ready, to shew it 
CffHt, and by the course of law ought to 
ready to assert to the Court, that they 
Mt jurisdiction : so then it is certainly 
L That is the first thing. Another 
is this; with submission,"! say, they 
iMde-i no record at all, nor any imiieach- 
laU, as thu case is ; for the notes tliat 
K token, mv lord, are, they say he was 
^sd by the Commons de altn Prodi- 
; hat thut is naught. He ought in his 
ihve set forth his impeachment, and 
te crime particidarly ; (or either an 
MM or an im|icachment tie afta Prodi- 
vfekmy, or any other crime, is naught, 
r allows it wit. He ought to set ibnh, 
muA aver upon a recorii, but set it Ibrtli 
vertu^ or in the substance of it ; and so 
lo plead tlie record entirely as it is. And 
Ase necessHry averments that cannot 
iae be roaile, the law allows oi' them. 
thBcase he cannot rame aiul aver upon 
rord ; lor he haih set fortli the iniiM;ach- 
Nik as it was, but only barely dr ait a Pro- 
in geiurral, which tlie rec^onl must 
» as the Court nuiy jiidjje of it, and it 
■I be iniemled. If ut as they have k4.1 it 
■ ttiia case there is nmhing of treason 
id i» te record averred, tliaA can ina*iid 
'te^ the same ; amf, mv lord, ho an; all 
Hhoaoever pleailH a privato 

ri must plead it as it is, not in 
a is for tlie same matter ; for 1 
it is naught : and we are in your 
hit this 13 no plea to the jurisdic- 
MMkai point. 

k^Mr. Attorney, do you think it pm- 
MHi k this time, or will ^ ou take a 
Ivy OMudar of ttMt ft Uttle. 




Ait, Gen. My lord, I think driay it very 
dangerous and mischieruus in this case. 

L. C. J. We can give you as short a day at 
you please. 

Ati. Gem. But to satisfy the Court, the 
clerk will be ready with tlie Journals, to shew 
that the fact is not as they plead it. 

X. C. J. Look you, Mr. Attorney, ^"e must 
go on in a legal and formal way, when we hate 
a plea put in ; therefore whether you will not 
take tune for a day or two to consider of thia 
plea : you had the substance of it, but nothing 
concerning the manner of the pleading; they 
would not tell you w hether they would plead it 
in abatement, or in bar, or now : therefore 
whether you will not take time to consider of 
this pleading for a day or two, pray connder 
with yourself. 

llien the King's Counsd consulted one with 
auother. 

Ait. Gen. My lord, not only for what I have 
alrcaily offered, but for many other reasons, we 
can f>ee this can be no way a plea to the juris- 
diction of this Court ; for upon any hn peach- 
ment or imlictinent, the king bath election to 
proceed upon which he will : and it' there were 
ten indictments for one and the same thing, if 
none of them are come to a judgment the Ung 
may proceed upon which he pleases, as in that 
case of fa-ebmd yesterday ; thuugh the party 
were anaigned and ready to be tried in Ireland, 
yet the king mi^flit, if he pleaded, try him 
nere ; and the king hath oidered it so to be. 
But, my lord, 1 take it, that this is not only 
apparently a fulse |>tea, but a frivolous plea in 
itself, being to the jurisdiction of thia Court : 
for there was never any thing of a crime so 
great, but this Court of king's-bench, which 
hath a sovereign jurisdiction, lor commoners 
especially, could take cu^nizaace of it ; and I 
put it upon that, my lord. Never was such a 
plea pleaded to y<»ur jurisdiction ; and there- 
fore we pray your judgment upon it. 

Sol. Gen. Iny lord, belbre we come to that 
which is the question, if there were such a 

f»leu ]df»ded to the jurisdiction as tliey would 
lave this to be, we humbly pray the judgment 
of the Court, whetlier this be any such plea at 
all a-s can bear any debate : lor it will nut be a 
ipiestiou now, how far an un|)eachment de- 
pending is a bar to your juris<liction t But the 
«|uestion is, first, wnether this be such a plea ? 
For, my lord, 1 do take it, no man can plead 
any record in another Court, any indictment or 
acquittal uyon it, liy pleading it in this form as 
this is pleade<l, hy Haying generally, that such 
a time in sucli a Court, lie was indicted fov 
the same offence, and was acquittetl ; yet thus 
this plea is, and no more. But he tliat will 
plead uuierjoig uc^utt^ must plead that such 
a time he was indicted in such a Court, and 
set forth the indictment and all the proceed- 
ings of tliat Court u|M)n that record, and then 
it is proper for judgment ; such a plea iv 
formal, and requires an answer, and it will 
be proper for «b to gire it an answer : and 



t67] STATETRIALS, 33 Chakles 

when sach a pica is put in, wa vhall either 
demur to it, or i^ivc it the aubwer that it re- 
qaires of nvil iiel record. But this does not rc- 

SuifC any [larticuLir answer, hri'atue it sets 
irth nu recurri at all that we can answer to : 
fer it LS not biiflicient to say in seneral, that he 
was indictftl and iiCf|uitte«l, or impeached, and 
tiieo aver that it was for the same offence ; but 
he ought to shew forth the impeachment, 
and let forth in the plea the recorvJ. that upon 
it you may pass a certain jud^jpncnt. There- 
fore we hope you will set this aside, as not 
being at all formal, or requiring any answer 
to it. 

Hen. Maynard. My loni, if you please to 
ooDNoer in this case what is the question, and 
what not. At present it is not the question, 
whether if a man he impeached of high-treason 
by the Commons before the Lords, and tliis 
impeachment stands imrcrersed in the Court of 
parliament ; I say, it is not the question, whe- 
ther this Court have jurisdiction over this man 
for that offence ? but the question is, Whetlier 
he hath jjiut in such a plea before you, as will 
put that m qoestion ? Under favour, it is not 
sufficient for him that will plead a narticulu* 
leooid, in bar or other way, and maice use of 
ity that he pleaded it in general terms, but he 
Blast set forth that record as it is ; be must 
not give you the title only, or say, he was in- 
dicted for such a thintr generally ; but he 
must so set it forth to the Court, that if issue 
be taken, the Court may, by comparing the 
record with tlio plcn,ju(1;^ Whither it be the 
same matter or no. \ou when he pleads lie 
was impeached for the same treason, he must 
net forth whnt that was, that it may »ppcnr ii 
was ibr the same tnasan, and if that bo partiru- 
kirly set forth as it ought, upon null tu I Uaord, 
the question will he, is there s'uch a record or init ? 
Now if he comes and says he ^ was iiulirlrd or 
impeached, and not for what in particular ; the 
two things that upon the issui- art.' to be com- 
pared, are not made so fit (or your ludgnient. 
In our law, my lord, if a inari will plead, he 
tiee<l not sfl forth a ijrcncral art of parliament ; 
but iflMMvill pU'fii! a particular act, he muht 
set forth the uiatlfT of it, t<i bring his case 
under the jiid^uii^nl of \\iv Court ; and whe- 
ther this be so pleaded or no, ue submit it to 
you. 

L. C. J. Pray l«t u\r speak two or three 
wonlstoyou : do}ou sp«'ak it against our receiv- 
ing of the pluiii' 

Att. Gen. \vsj my lord, we hope you \i ill 
lot admit surh a plea. 

L. C. J, That \%[\\ bo hanl. Pray then con- 
sider with yoursril', A\lM'th(T ifit lie au insuf- 
ficient plfa (for we willwiy nothing at present 
to that) and if the pleji be such that no issue 
can lie takf.'ii upon it (admitting it were so), 
whether \ou should not demur tu it, before you 
dtinand our judj^ment, that we may have 
somewhat upon the whole before iis to judge 
upon i^ And I specik it to you, Mr. Attorney, to 
this puriwse, that you may consider, whether 
you shttli thiuk lit to demur to this pka, or 



; whether you shall think coDvenieiit to take iss 
! upon it, or to reply to it, that ^ it may oome ji 
' dicially for our opinion ; for iu a regular wa 
' if a plea be admitted, it must be ather demn 
! red ti>, or replied to. Pray consider of it in tl 

case ; and we vtill give you.time to conuder, 

3'ou please. 

Seri. Maynard. Under favour, my knd, ii 
' plea be apparently vicious when it is up 
I record, we need not demur to it, nor take taso 
, for else the mischief will be, we shall adnit i 

that is well pleaded to be true. 
I SerJ. Jejeries. My lord, if your kvrdsl 
i please, I do confess that according to the nsi 

course and practice, ii' there be a doubt upon 

■ plea that is n^, whereon any point in law n 
arise, you do put the party to demur or take i 
sue : but according to the common course of tk 
court in common cases, and much more in fl 

, traordinar}- cases, and especially in capital cssi 
I and most of all in a case ot High-lVeua 

■ such as this, if it do appear to tnie oomt ai 
' your lordship, that the plea is in it's natii 

a frivolous plea, you do usually refuse to ada 
such a plea, and give judgmeut upon it No 
wc would acquaint your lordship with our a| 
prehensions in this (»se, and we would pray y% 
to consider what the danger may be upon nsi 
demur, if this plea be frivok>us, as it appeaiii 
be : for whether an indictment in this court, ( 
an Indictment in another court be for ii 
I and the same olFenee, and so a bar to the inn 
' diction, wc are not so much as admitted ii 
j the question of that, as this plea is. Wheffi 
according to the course in other ph««, we pn 
[ you would be pleased to see the inconvenifiM 
if we should Ik^ put to deuuir to it ; tor then i 
', do admit by tlii^ demurrer, that this Impead 
: nient is lor one antl the same thing ; and i 
I humbly conceive, my lord, thatls a little dai 
I gerous. How then will it l»e possible for 31 
I ever to judge, that the Iuii»eachment (whiclii 
i fact Ls otherwise) and tlie Indietutent is forti 
j same thing, unless you will put them to pum 
' the conunon methods, how it was in the Hon 
1 of L(»rds, by shewing forth the record ? M 
; w hat (;an we do otherwise (it l)eing ajiparent 
1 against the eommon fonn o\' pleas, and mail 
i I'estly for delav only) than pniy thejudgioe 
of tli»^ court, which we Iiojm: will be to reject ti 
plea * 

L. C.J. lJn»tlier Jefleries, you need not I 
<ifraid, that you shall be concluded by this d 
nuinvr, that there is sneli an lmiH>aciimcnt 
the l>oi-ds HoiLS4', for the sann^ otlVnce : the 
' \ull be no eobair for it. And brother Mv 
j nard, formerly I confess, when they idea* 
I pleas Ore tenus, and*took their exceptions U 
tenus too, they would demand jugmeut of 
plea pivsently ; and so it was in the bishop 
ninehester's Case, 3 Edw. 3. where tM 
was an Indictment againbt the bishop bera 



xWia c<nut, for going aw ay from the iiarliaiai 
at Shrewsbury without the leave of the Laiti 
there Shard comes in, and pleads Ore tenus tl 
matter, and says, This is a tiling tluit oonotf 
the Lords in Parliauieut, of w hich they hi 



STATE TRIALS, 33 Chahles II. l681.— irficuri Fihkamt. , [270 



ce only, and flo prays tlie jud|;ment of 
presently, whellier tliey have juris - 
'the clause or no? And lie pleads it in 
t. There they OTer-ruled him me- 
ithout any more to do, because ttieir 
; were no> as now tliey are ; now X\\ey 
n into a tonnal way, all entered upon 
r at least written in paper : and wnat 
' the reason why you hliould not tlo ac- 
3 the connnon course of the court, I 
> vou to consider of it. 
faynard. It is very true, my lord ; 
tlie course was so, my lord, and the 
» too, to plead Ore tcnus ; but plead- 
M;r is the «auie thine ; and the course of 
halh liM^, when thev saw it in paper 
volou!4 plea, to g^ive jmfgmcnt presently: 
hare the same privileg^c v\\H>n this ac- 
I they hatl when pleas were by word of 
If there be a demurrer, it may hang 
lan M convenient this cause should do. 
J. Do not speak of that, brother May- 
i to delav, 3'ou shall take as short a dav 

rill. 

f rn. I have looke<l upon all the pre- 
and could ne\er meet with one demur- 
e the plea \\ as to the jurisdiction : but 
our jud{pnent upon the first matter, 
mhosoever pleads to the jurisfiiction 
Ht hare tlu- record ' in poii^ne' to justify 
Mn a plea in bar indet^ it may come 
ttimus, but in a plea in abatement, the 
U^t alwiiys to be ready with tliosc 
that are toout the court of their juris- 
■nd besides, the court is to maintain 
a jurisdiction, the kin|;*s counsel have 
to <lo to assert thsU, but tliey ou^ht to 
. thin<rH that may lie to the Cincf's pre- 
nd thi refore it oui;fht fo Ik? by the judjjf- 
Ihe court in this case set aside. But 1 
yon will never fuid a demurrer that was 
to the jurisdiction. 
J, Pray consider of that, 
fen. But if it appear to be a frivolous 
[ie form or in the matter, you will not 
are to demur. 

/. If you do insist upon it, that you 
mur, nor do nothing, we will ^vcjud^- 
Kit we will take time to considcT it, it' 
't demur, uor take issue, or rcjily. 
'. Withins. Will your lordship pleiisc to 
s one woni ? As it hath been olisen ed 
•onlship, this- is a plea to the jurisdiction 
Oft ; and if they du plead a |deu of that 
be ooart always expects the pica shoulil 
uiliaU}' ^rood,' otherwise it is not to bo 
. Now it h not substantial!} jifood here, 
% that Fitzharris was in)j)eached of 
■Hoa: Now such an Imjieachment 
j$^ ftr nobody can lie imiteaehed for 
I generally. It ou^lit to come 
the particular acts Uiatmake up 
^ _ ; for toe callings of a thing so, does 
il k so : therefore they tlMt would 
PIIm, mint ooime and shew that there 
that hath such matter in it 
to trweon ; «o thtt tb«o it being 





a nauifhty plea in th.c substance of it, and tlie 
end of it to put this court out of a jurisdiction, 
we hope for that reason you will not receive it. 
Mr. Sanderg. One word farther, if yuur 
lordship please, on the same side, for the iing. 
As for this pica that he hath pleaded here, ii* 
it had had sulistaiitial matter in law whereupon 
to ground a debate, we should not press your 
loraship not to receive it, but we must get off 
it as well as wo eoidd ; but when it is mani- 
festly pleaded merely for delay, and it so ap- 
peal's to your lordslliip upon the reading of it, 
and that' Uiere is nothing of substance in it, 
then 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 : Ilere 
is an indictment for treason against Mr. Fitz- 
harris, for conspiring the death of the king, 
compassing of it, and declaring such his in- 
tention by a venomous Ubel. Now he comes 
and pleails to out this court of their jurisdic- 
tion ; and what does he plead ? He says \\m 
was formerly impeached of High Treason in 
the Parliament, tnat is all he says concerning 
the im|)eachment ; then he does come and 
make an averment, without shewing more, that 
this high treason, and that for ^liieh he was 
impearhefl, is the same; and takes upon him- 
self to judga, whetlier the court will or not, 
and \i ill not submit it to the court, which cer- 
tainly is not the right way of pleading. If Mr. 
Fitzfiarris should come and plead outer foits 
ficgui\ tliat he had been tri(.*d at another time 
for the same offence and acquitted, he should 
not have sai<l generally he had been formerly 
indicted and acquittcff, and tliis fur tlie same 
thing ; but he must have shewed the record, 
and then averred upon the record that it wan 
for one and the same crime. For suppose in 
this case, M'hich would have appeare<l perhaps 
to be so, if he had done as he shoidd have done, 
.she\^ n that there was such an impeachment, 
wliew»by he was impeached of high treason, 
and whicrh impeachment did charge him witli 
treason for le\'ying of war against the king, 
and then have miule a c<niclusion as he does 
u<iw, with an averment, that the iinpcachmcnt 
and the indictment was for om^ ancl the same 
offence: under favour, notwitlistanding liis 
a\ (Tinent, the couil would have judged them 
not to be the same ; for if so be the reason do 
not ftp|»ear uuon the rc'cord to be the same, his 
averment will signify nothing ; why then his 
pleading now this iasufticiently for want of the 
reconl, will Ito better for him than if he luid 
pleadiHl it sufficiently. M'hy then if he had 
now pleade<l, that thmMs a recnmlof the former 
imiieacbmeiit,' and set forth the record, and 
then averred this was for the same, Mr. Attorney 
might take issue either there was no such re** 
cord, or said it was another treason, and tra* 
versed it that it was not for the same ; and so 
there ivould either have been c»ne trial by the 
record r or ^ the other upon the fact by the <*ouii» 
try. But nmv as he hath made it, this trial 
Utth u[ion the ret'onl, and upon the fact, is 
only txwhle by the oountry, not by the reoord 



4fflQ VTAnmAiS, SSMiALUn. xeni^Ptocrtdingt 

■ WmWMr.AtHnmytauimatibtlAtniM mo bk 
.nok MOM>L dicB ril tha faeeid H. A 

llMiilii l iil l flilli'irt t i iiii niam 

Mmft^mT irtiU tf ft be not ftr 

ft«MktMt: MdMDtfeMMflriwttlJrlib- 

Mrrf«MUMtWtakni. Wbr Ihwi mw, bit 
I«d. M to ifae Act: If ». Attann tolH 






kamdiiadiendt Oaa. I n^, anHttetriad 
WtkaoooobT. taiW^hmflndedkm, 
lliilijiiMlii nriiiiiUM iiiiiiii iwiwi ■ntflwbica 
b* the-emiBtn, to nnt liguoa bi* plw k 
Mwlrt: mBdifdl•tbeM^ than the aaoMnfej 
fZMc4, ■■ditbmmnl^plMdadoQly Ar 
(Unr, bBMoaaba iRiiiHMH«iiiiettdMpm- 
MjaMUr, laiifimi Qalty wNatChdty, 
irtiebiftliaiiiatlttflfftetiDaatpmpar tone 
eaa^y. 1 ndw hape hehBotcaflMthaii 
Aathab: bat if ke ha goirf , tt» Aeiaeat 
bsfiU woMBw a Mmbd aaara- ma tgnmi 
dnUBanaoBu Ab< ftr ihat iimbh y— 
l wllM j wffl»itghac— laMD W iaiiiyjay. 
ipd iMiatoa wa |nj As Fla» may ba m- 
jaeM, aid W aw aanRr over. 

AU.Otm. Hahatbnatpkaied'malpalit 
*MrBaaeid.' 

X.CJ. Ym, ilia •frootnrtet hRatalia 
' FajliaiMotL' Ha doM «ay Oat be wm im- 
■aacbtd «f h%h trcaaon by the Common be- 
nm die Locda, aa upeon W the record* tbere- 
qf aanw lb* Mootda of pariianwnt. 

jUt. Gni. 1 did Dot truly ranramber Aat ; 
bat I baf jonr pardon if it tie so, fm I liad not 
■ viMr ^tba uIm till now; butlam ready 
ttai to to vtiny lb* eovaH, it is • pun AUae 

'"■ '" ■ ' And tbenmftmbr'- '- 



1 ottr it to four oanidnBliDn, whrthor yw 
wfll gin awy tnne, or pRaeDtly reject it. 

£. C J. We Win pre them uo thne, that 
ia inra^ But tbe qucatioa ia, Wltether time 
■hoold not be taken, not in tavonr of the pri- 
aoaer, bnt of the king aad of' the court? 

All. Otn. I am ready to make out, if it 
wan neceasary, th&t there ia nothitiff uf all this 
hue ; it it all liction that ii pleaded, and no- 
diia^ in tbe record to warrant it : I have a 
copy of the whole Jounial, sod ot'tlie trausac- 
tiaoa m the House of Lonb, the book is cloeu 
by aiid ready hi be shewn ; but when it Li a 
frinriooa plaa, I hope there will be no need ot' 
tkat trouble. 

L. C. J. But, Mr. Attorney, whether we 
can talc* notice of tiie Journal-book now, you 
bad bea ctmnder, as lliia case itands. 

Att.Gtn. They oui;ht to hare it here rsady, 
dmr eug^ht to have it lierc in poifae. 

Sut^cajoiui. There ba*e been rery manv 
fOed arsuments ui^ed by vuii, >>)>oa whioli 

pwlia[ialliii|ihii II ill III jmlijiil J miimii . but 

tlw ^uaslkui is, Whether you ore now in any 
^nh torn as we can pass jadjrment upon this 
pl« w K»r llmelbn: it beint; olfcred to you 
to cowto <£ it, what yaa will d» is il ; sure 




(hmilri ci 
y«m Bfan^>7v<.'tl, ihen you tnayai 

L. C. J, Wt cEuinot put yon U 
And a w— to bind the kinv: th< 
WtuA M it b; we »m comVtor of it. 

JW-ge a. "Bien, iny inrd, I will A 

Sal. wm. Anil we prav they may join in A* 
manw jmnediktely. 

Sajcant /(^iVi. If thcydo nolnieiuillit 
ddi^, now fb', Altonicy hath demurred, I 
■Of pna toy will Join deTUumn immediately 
'fllMlttaaerk iif tlie crown drew tqit 
gcicnl Oonarrer, which Mr A Homey signed, 
Mid it was mul in the Murt by ibe dok 
oflkaaim.} 

Jfl. Qem. We pray tbew mn jma if 
tommr. 

M r. I KI K mm. My lord, we that arr aaigMt 
efoaoMri to ttlit gentleman, tliir prisonar ii 
Ae iatr (tot yoor lordship may bu wtiidld, 
ud^lbatbsarva, that we <lo not dnagn tr 
itmn to May one minute in ihb> tsusc) ilo 
totoe, tot me will join in dtmorrer vilk 



CTbaa to clerk drew up the Joimler in Dc 
mnnr, wbioh beiuir nened liy lh» four gM> 
toitev of ettokl with Mr. Fit/hurris, vna ite 
rwdineont] 

Alt. Otn. My lord, I prsy vour jmlgmeBlf 
bere ia an indKlmciit tiir t'l-ainini; a ireassiiME 
libd ^ 

Hr. mUiamt. Hy bid, we hopa W M. 
not be put ■ 

AH. Oen. Pray, Sir, hear wkM I Mft, 
My lord, 1 demt your Mgnmi, OalS 
pi^mayatBiid orer-ruled feraphiatoia* 
IB it. This ia a particular nidieliiMat to M 
fnmiing ■ most peruiciona nrandllaili; Ui_ 
against the kii^ and tbe goTemman^ to llto-' 
•on in that particular ; and 1 think than k it 
penon does doabt, but that Ibia ia a ■sM'- 
within the jurisdiHion of thfa cotvt M Mr; 
Tfaere ia no difficully in thu. Wh« 4a M' 
do to out this jutisdicticin r Iltejr osn» ai ' 

5 lead, that FitzharriH wn impe a ched db a> -' 
'rodifionr. ; that is all toy pkad of lUr 
treason in general, to out the CMitt of^a Jiw 
diction of a particular treason, *■— * ' ' ■ * 
maliciouH traituroUH Ubd ; and tt 
Urtrraiion upontlie statute i^th 
king. Now they hare pleaded do p 
treoaou upon that statute thev " * 
for, nor up(»i the Btatuttftif th 
nhic^ hath a gnuTnl claaae of a d) 
power, and it may be he waa imncMfaed aHB 
that, and we Bhalt not intend K nllM i wJM, Ml 
being the general law, tbe other but s pMl^ 
lar law fbr tbis king's lift. Now in «ll pMI* 
tbcjuriiidiction, they ougbt tobedieslriBItt; 
ami moM curtatii of any pieas wlntMiercr. tgt. 
aa I olFered beibre tn you, an I ^ ilair ImC 
they ought to be rewty with die rcnad WJ# 
tiQ' their plea: bat tliia in ahett I iBWtif«( 



m, fur tonl»< 
id tbia is a ■■!■' 
i^tbalSttdTd*, 



STATE TRiALSi 33 Chables IL l6Sl.—Edtvard Fiizharris. [274 



It a court of its junsdiction for a parti- 
ision, it » not a tJ^nod plea, hy sayingf 
impeachixl or indicted gfeuerally of 
umn, and no averment can possibly 
For it spears by the impi^acnment it 
' the same, and it is rather to be in - 
lat it was not ; but the inipeachmeut 
Bend, that they went upon a declara- 
er, in the (statute of the 25th of Edw. 
I reserves to them the power of deciar- 
on at largfif, and not upon that which 
ried here in an inferior court upon a 
r statute : 1 say, my lonl, they ou^ht 
feaded itcertairily, which they havniflr 
,it is fatal ; and I pray your jud^eiit 
and 1 hope they are ready to make 
ir plea. 

en. Aly lord, tliat which we do say to 
bat this pica is neitlier gtwd in matter 
; and if it had bce.i pleaded never so 
, perhaps we would have denmrred to 
IS now it is pleaded, it is not fonnal, 
eibre we pray it may be over-ruled. 
epiioD, we take it in point of fbnn, we 
fatal ; for there is no man tliut pleads 
■wot or an impeachment in another 
a must set ibrdi tlie indictment in 
t, which is nut done in tlus case, and we 
I to be fatal to it. For a man that will 
\itrftntz arou'U^ must set forth the iii- 
t, and all ttie proceedin<^ of the court 
at indictment ; this is the constant 
\ in all cases, and particularly in \'aux'8 
e fourth report. Wlioevcr will plead 
in/a acquit , must set forth the record, 
it will require an answer to be given 

J. What do von say to it, gentlemen, 
■Hotaining ot your plea. 
ITiUiBmi. This is that we say, my 
V^ek»|ieyour lordship, and the court. 
CMC, will not tie us up presently to come- 
^ tliis matter. One thin^ 1 would 
t, becau^ it hath 1>ceu said tncre never 
ha preci'Jent ; I think, to tliis nurposnt, 
nedent of EliiutV case is ver}' iidl in it. 
omey is pleased to say, he never found 
r plea to tlie jurivlietion did c^ er require 
mer, but was o\er-niled or allowed by 
rt presently ; but that ca^e is plain U) 
nry uptm that very matter. It was an 
ent brought a^^ainst Elliot, for some 
canors comniitu-d by lam in the House 
■001 ; this being pfcaded to the juris- 
if the court, the Attomej'-Genpnd at 
■i said it was not to be received ; that 
I Mttter he in.si*4ed on then, that it 
^ njected : but the court did then, as 
■Mr, over-rule tlu: atUimey in it, and 
llidenur. 

L J. We have dene tlie same for you. 

VtAisMf. Then, my lonl, here is a 

Ml thrt Mr. AlTdruey hath not set;n : 

w. the court in th;At case did not 

, vp to ar|rue the plea presently, 

m time till the next term. \V e ask 

|ph|a thing of tlu court, as so Jobg a 

•fui. 



time in this case, only Iiere is a man's life in 
question ; it is indeed for treason, and so it is 
of consequence to the king; and there is 
also the privilegt? of parliament consequently 
concomed in it. What time your lordship and 
the court shall think n^asonahle ibr us to be 
ready in, wc Vxave it to your lordship ; we de- 
sigfn not to debiy at all, only we (k'sirc a n^a- 
sonable time. Your lordship did in the case 
uf Piunket give him time for his trial till 
next term, which is as high a treason as this^ 
I am sure. 

X. C. /. You would have [teople think you 
have strange measure in this case, that you 
have not the same time given to you that was 
given to Piunket : Pray consider, you olgect 
these things as though the court were hard 
upon you, to tie you up in poiut of time. Is 
your (^ase like Plonket's 1^ Pray pve us leave 
to clear our accounts as we go along : He ia 
brought from Irehusd hither, is indicted for 
what he did in another king«lom, and it is by 
law he is so indicted indeed ; for he beii^ kept 
close prisoner, and not knowing what time be 
should be brought to a trial, he desires time to 
send for his witnesses, who are to be brought 
over to dear him of tlie treason. Could we in 
justice deny . it him, or could there be shorter 
time than next term, given him, when his wit- 
nesses are in another kingdom, and it ivould be 
a fortnight or three weeks before possibly he 
could have his witnesses here ? Tills I mention, 
Ik' *ause you nill needs make use of such a 
case, that is no more like yours tlian any thing 
that is the farthest diiferent from it ; yet you 
will have tiie case to mcasm-c with your 
case. 

Mr. WiUiamt, My lord, 1 know it is in the 
discretion of the coiirt ; and as your lordship 
did what %vas just for Piunket, so you will to 
this })erson : 1 know ynu a« ill do what is rit^ht 
to every body. We arc c<nins('l assigned by 
your lordshijr, and we doubt not but your lonf- 
ship will be just to us, and give us a reason- 
able time to arsfue it. 

X. C, J. l^ok you by tlie way, Mr. Wil- 
liams, I must tell yon, wlicn wc assigned coun- 
sel to 3Ir. Fitzharris, we expfK?te«l that coun- 
! sel should consider the plea, so as to be able to 
j maintain it, when they come to plead it here ; 
I for that reason we gave him time to plead it, so 
us he would stand by it : What neeiled we else 
t4>have assigned him so iniioh counsel in such 
a ease as this is, but that he slifutld l>c n^ady ? 
And why you should now ho|nj that wc will 
give you a longer time for arffumrnt in such a 
case, I see not. (*onslder, wnether in disc*rc- 
tion } ou think lon;^er time ought to be expected 
uiion such a plea us this is ? 

Sir F. Win. iVIy lord, we will not take upon 
us to prescriije, nor to mention any time in par- 
ticular, we leave that to the dis4*rction and iu«l;>-- 
nieiitoftlie eoiirt; hut tliis. I think, we nny 
pray, urcording tu the duty \vt; owe tu tiuV 
cllcut, ii^»on \<iin' lordslsip's :iss!:;-iiii|(r us of 
counsel. We cimiM not fon :»cf." nli to-day. 
uliui the LiML;''i counsel \\ovdd do; whether 

T 



I 



9fi-\ 9TA'rt TRIALS^ S9 Cuun 

Hr. AUsraey would take iMaa npta w «r wtll 
tftlRtatr^iarufanvtjvtomamnaeBl: Wa 
cmU bm fivetto whether he wmU dentor M 
r not. I know year lonUup will be ■ 
'~iU« to u •• joa c — -■•^— ^ — ■■ — 
,arrislitoflIiaeei 
r, end wenU hwe 

isaH i|ient in fbrmita^of the| 
t pceftare peiticulwi 

w 

pcoent may dd*y, aa any penont coold be in 
ear coaditiOD ; ihcnAre. b bht be, we bare 

■' a off ' ' 




HMrweaeewberetbedoubttdiiUeapooit; it 
U « matter of law pleaded to ^ jnriadicMoa of 
the eomt. I do not indeed brre.lo dto preee- 
denls upon wiMt ia pUn ; bat witfad, I do not 
lave le Hj thii^ i^on a eodden an pUe wfthr 

__. j_^ — 1— j-i- J ^u ^- M it ia 

. d,itkftcaMiw^ 
s of, and jreua loo ; I 
■nnataajritwiihyiNirlanUim^lewe. IVie- 
fare, if m tbe eaae of my kwd SeUia, whieh wM 
Imt ^OB an infiNrm«ta»^ and Am hot ftr ft mis- 



n. 1811— :Pni'iii>hi'iijMi« («■ 

uid wliat we tiuiT c»U m- 

I, lutth luaiie bd alleratioD finn 

d we liiuubtv )iray ^^ mif 

B accordiD^ to the nUe of om. 

tneiiee. My Innt, whereas ihcj tn 

toeaB it a fnToInuK pli^a. I helineil If 

tt Ike gteaxesl 'uap"n that ever tluae 

ten rawT here ahout, ivliaUne>er llMy 

pleaaed to mv. Rut your lonlahip knmN 

die He of • mni Li the ^reawiA rarnunle ta 

law; and O^t t<i be ■ most ancient uidwin 

nde, ■ De marte hsnunia nulla est cunrtalie 

' longa.* And tiitne we oould not muoniMv 

espoet m. be Aoiighi to cimc i>ravii1rf| ia thn 

"■ — Hj pray.lhit your Innltthip wfll 

tuuonaUe time an jonr loiifaUf 
ahall think iSt 

L, C. J. Cobip, let me propose ihia lo yon. 



Iheooh tt waa a pka directty to 
. of tbeeoiut, and certainly mey 
pRpved; for they were aH at fibor^, and 
bed raaort to all papen and bookabefimthe 
plen pleaded, which we could DM hare; yrftfae 
oonrt was pleaaed to laaign them thne, and give 
diem a li^ time, I bc^ we ahall bave aome 



JboaU have so Iod^ time ; but I humbly be- 
aeecfa yow lerrinhip, that we may do our duty 
lo the eoait, aral to our clieet, that we may hare 
a fittle time. It in true, it is a great and a bor- 
lid treaaon ; but it is as true, here 'a Ibe Hie of 
a man (xmcerncd in it ; wc affect not delay at 
all, but hope you wiD not deny us what lime is 



migfat, if .you bad pleased, hare entitled your- 
adtM belter to have had time to speak U> the 
plea, if you had pleaded over to the treema ; 
llien we could hme fpven you time to lisTe 



■pofccn to it, anil not tielayoi the king; at all 
iHit you haTe thoinfht ht not to plead over. 
WUst cODless, I did eir^ect yon ivould havB 



iheught yuu wouM ; thLTcfore having not 
dtoie it, it ia in nur coDsideratiiin, whi'iKer we 
will giTe you time, and what (iim,- We will gii 

JO.I, 

Mr. Walti^, It ia under your Indship's fi 
four, according to the usual course of modem 
pncticc. I luLve been an uaprufitable all 
ml here near forty years, and, (or my part, 1 
did ne>'er yet sec so swifl a procecdini; as this 
ianow; it is as sniti as ligliiniug. It^sn very 
eitiaordiiiBiy lliiiig'; w-l- niigliE well oi>nc " 
that uothiu; more xhuuM hu expected fru: 
than what is ujual, and thnt wa should not lif 
iHilOlrtof the ordinary proceedings. ADciontly 
mdoed, aa yuur lordship did obnerre the other 
day, ihey pleaded ort Unmi, and then the pn 
fwdhiga weiN nry quick: now indeed it 



WiD yon plead ei 

"- Patle^. My Inn). I nlll giveyria M 
la that, Vi'e cannot dn it. U'hrnw* 




we ilid confer, wheiko If et 
ii would not ilesirny tbe piM, 
itiininn. that it Mould imOBf 
Kit plrarl orer, but WC girvap 
I) a as iiitlilTcrent ami Bghl 
to me, aa any luxlv, to lie furred inameil 
now; bat aa Id the mati< r ot'it. 1 belierea»- 
bodycan aaylbcv Fvfr«;iw many nMnatstl 
the like natmv': 'fhenHbre, pi-ay, my lord,U 
ua not go OB ao hastily with it. tor weconMiMl 
fbreaee, what nncc we know, how H wouM ll 
with ». I didnot think ihey uinild hatedfr 
murred ; but nrmr \i ^ come In thul, wemml 
make the beat uf It. V>e hare pleaded Ah 

K' a;, if you will not he pWsed ID ^fe H 
ye and time tii lie jin'pnri.-il to argiie it, joii 
must take it at ive iire nbic, Kitice we mnna 
have time to maLe ounivtvu;^ alile. 

£. C. J. Certainly, Mr. PoHexftn, Ufim 
mn vilr, it would not hurt die phn to |M 

All.Cen. jtlylord, ifyotu-torddnpllHIl 
to fannir me a word in tbiscaae; I bea^NM 
ml things urged, particularly inataacfaciaBi 
dem prutice. If that gentleman iA 1^ 
that in any caw the kin<T aind tbe eooH mm 
indulgent to give four days to plead to tlM jali 
diction of tnu court, then he wiQ ahow M 
something of modem practice, which IknM 
not ; but if that geutksnan will ii iiiiiiilaa ill 
dern practice in a great nobleman's CMa^ H 
whum he nas of counsel, it was luld.Ui^irk 
wuuld debate (he point of law, be moM m^ 
pres«itly : they never would give Um tinn'l 
prepare lor his argument, there whbaM^ 
raudtrn practice tlien. I would dnroUMl 
give me one instance, that when gendewrf 
aasi^ied of cminMil to plead a matter to dM^ 
risdictiou, and deal so with the kmg'seiMM 
OS lltey have dealt with ua, not to let ua aaatt 
plea tillium'; the modem practice hath hMh 
Efive them any time. For tham to any, ttl 
they could not foresee what we wdoUM* 
coiild tht>v not IbrcKee the pointa cf bv 
Couldthey not foresee a plain case r bntlto 
do nut take otf tbe great mtter, that ha tit 



then, v>\wi\ they hare put in a plea upon g^ruat 
f*onsi(lenitioii, do man is to tliink that they aro 
unready to maintain it. Our exception is ^hort, 
and they do but talk in c^nenil tcrmai that they 
are unprepanil ; and they have no rcuson to 
ex[)ect this kinfincss from the court, especially 
since thc^' used Mr. Attorney at this ratt>: 
They gave him not the p)ea, but only a note to 
tell fiim they woid<i do that which they Kuid 
four days before, and no more. If they had 



] STATE TRIALS, 53 Charles II. l6Sl.^Edward Fiizharrit. [278 

plead to thejunsdktioii, ought to hare (he , they would put in this or any plea, witiiouthav- 
d resdy in hiB hand ; but, my lord, we lay iug' considered betbrehand ^uiat to do. And 
humbupon that which is our exception ; 

have pleaded no impeachment of any 
;, that can appear to be the same with that 
iiich they are indicted, that is the |>oiiit. 
ve auch difficulty ? Did not these learned 
men think ? Cuidd they not foresee that 
oald kmk into their plea, that it sho'uld be 
? therefore I did, and do pray your judg- 
If they had pleaded, and st^t iortli the 
1 truly, as it is, and as it ought to l>e set 
, in 

Q^hav 
K dsae burpofieiy , 

I am uola to say, for these gentlemen 
r kovr to plead a record as it ought to be, 
nw thia oui(ht to be pk-ailtnl to, tu out the 

of n junmrtion of a |mrticuhLr crime. 
' aay, the Ute ot* a man w concenicd, and 
die peace of the kingdom conceniul too, 
e life of aii great a traitor as ever was tried 
wtminafpr-hall. For if his treason had 
I effect, oertainlv the kmgdom had been 
embroiled in civil wars by this time ; 
the whole peace of the Icingdom de- 




pretend ne are surprised for all this usage, ^%e 
see the plea here, and uesee the faults of it, 
and we have demurred to it, and tell tliem our 
exception ; sure they are better prepared than 
it is possible for the ting to be, yet we arc ready ; 
and we hope you will cn-ant them no longer lime, 
^'rj- Jtjfhiet. Will }oq|: lordship be pleased 
to spare me one word : 1 tVonder at what Mr. 
Wallop s(;ems now to urge concerning the life 
of a man that is concerned in this case : it is 



true, the hie of a man is concerned, m hich is a 
s ipon hu life,' and it dei>enrls ^ijion the ■ dear thing to the law ; but ceituiuh toe life uf 
nif sfthe whole-niatter. And I challenge I the go\erument is more dear to the*goveniment, 
I ViBi >f t^y <^" «liew me imy instance j and all courts of justice, thun the Ule of any 
bike nature. Tliat of Eliot's case that ' one single person : And 1 am sure this one per- 
amrioped," it was an infnniiation ; and to ' sun hath done as much as in him lies to strike 
' DpQB inlbrmations there have been de- j at the liit^* of the gr)\ ernmcnt, in case this be 
tn, but to indictments, found by twelve ; iriiotimt is laid to his charge. Now Ut make. 
do not meet with any denmrrcr • this cuse like to Plunket^s tlie other day, is 
to a plea to the jurisdiction. I strange : I think your lordship hath given au 



we 



I pray your juffgment, tliat he may pica*! I acco.nl of that: Fc»r hath he pleaiied Ut the 
■a ; for it is but a respondes ouster^ and fnct, not guilt\ , as Plnnlu^t diil i* We that are 
hBK gentlemen desire to take time, 1 of the king's counsel would in common charity 



! jta will not delay the king by giwng h<»ue, that he is not guilty ; but I am aure» 
ionee to such a p£iin im[»erfect plea ; ti>r if lie b< giiiltv, no tlitglisliniau can think that 
e kigJb matters they t:ilk ot, that will be the j hi' di-.t r\es to live : W hy then should we be so 

rre, they can ne\er come in (piesiion fonit of a man's life, th:n hath lieen guilty of 
plea. * . snch a fiK'tasthis :* For example sake ; sunly 

yUofOfaeral. My lord, f have but one ' it that be the thing in riuestioii, \\c ought to have 
void to that whurh is now in qne.stion. sp;*edy justice eie< 'tiled upon a man that de- 
ficeptions to the pica we ofleivd and open- . ti'.*n'(^ iio mercy. Your lonUhip was pleased to 



bre ; the qiu*8tiou is now, w hetlier they 
iate time U> argue this plea ? And the ar- 



take notice of another circunislauee in the ca^e 
of Flunket ; He was indiet«'d, he was aiTuigned 
they use for longf:r'tiine,iN, the life of j and wits to have had his trial in Ireland, and 
If and they roidd not Ih* pi*epjred on a i was to fetch his witni'sscs fitim thence ; all 
n, because they knew m»t wlial we viould | tlu^nhings were in that e:ls<^ He desinnl time 
For the hastv proceedings that ha\e Iwrn j to consider what he ithould |)U*:id ; hut your 
iCMe, iikhicli they clainoiir of, I think i lortLship, tinding an iiidictiueiit t<)nnd against 
have litik; reoMMi to s|ieak so, since that! him, arcdrdini;- to the rules «f justing over- 
ktm done in tliis caM'that nt^er nas done ; ruled tliat matter he suirgesteti, and made him 

tMhcr. lie hath hail three ilays time to ! plead n(»t guilty, before iwv you adiiiittetl him 
r, nhether he uiil plead to the jnrisilie- | to debate any thiug«if that luet. .\\u\ ihen it ap- 
f Be court, which iK'ver nu.s done to an\ , penriniftoyourlord&liiptobein aiMttherkingiloiu, 
Igraat a favour, that he is scarce entiti(*d lo . and 1 hat il was impossible in re'^ard of the hu/.anls 
Ihvour. Does any man iM'lieve that of the winds and s«.*as, to g(*i over his witnessed 
prepare<l? Do no; gentlemen, when ! in a little lime, \ our lordship g:i\e him time; 
V uf a plea, consider upon what ' hut you gave bini as strait a time as could l>e 
Ihey plead? Aiul docs not that let < .»n^»istent \«ith the rules of justiee snd as his 
■ the whole matter, where the neak | cave would bear. Now, my lord, this Inking of- 
hft plea are, and nhat may he objected ttred in a ease of that e\|)eet:iti>)n which the 
;? lam sure that thcM' gentiehien nre ('Xrarliefore you seems to liave, we dcsin^ tlie 
" ' I, that no luau docs btlie^c | dispatch ot it as much as \\c can. In uise 




2751 

BIr. Attornpv u • 
iul Retord^'itr r 
oouM nut tui 
m, or not. f 
fkTOtiralilf t>« ' 
fiapcfni, or "if 
oessarVf nm) 
our tin If \\- 
and wf c'Mi' 
]au- to ()"ti 

eX|M;<-ti 



STATF, T' 



%M>~. •■^- 



..^ _c 



•uV 



..• 



pn It'll J .. 

ha«l u 

1M»\V .1 

is a h. 
ill*' • 

i;« 
%^ 
I 



J. i. :' my 
. I- '.wo. 

utii^D the 

.*.. .♦"-« is 



1 



. % .il •♦€ hear 

.itjfc 111 we hear 

^ . ■*.'.>iaiwfing thi' 

. ^1 I'S liie as wf 

. », t. :«und iriiiliy. 

. . ^. j»i t a* any so irmt 

.:*. "M oiusidtT of this 

^, t4,.o? ihey pray it. 

•v uitini' t<i give thein a 

..*^.;«r Mi' Lt. and !iee what 

..«i -iii> ptea. Rut thru 

.^. \KHi must take notice 

•cdti presently alter our 

'i\ ■••111, we hare nothinsc to 
lit> t.'tt'^e ; \ye are onl^ to 

•^•iv hn«*thcn iff \w)r liir 

. i»^ .icc:>iun i#l' this pV.i ? 

.,vi K ■ . '.Ir'V iii» not sjn'jik as to 

. .. ia.-.;irU'his lili;, hut \\u' «»///- 

,*Mi .'tc ikrision «»nt, suj-posinu" 

^..i •'^f i!k' pita. TluTi'f.ui*. AJr. 

^ v- /ki k til topvi? hiiii till IVi- 

■.! i\\?.\ III' sliJiII he brou::l;t 

.» . .i; . :i '»y the 111 iitrnant *•!' thr 

uii v»c w'il h«u* tlu'-e ^eiiiUuU'ii : 

.^ , ..' •:.!! >\u'W us any convirfr'.-alfle' 

^ . "iKiiiii.'-iii the plea, tlity Hi U!>t expect 

. V i» i«,'»t'ii'y. 

,. Tha! reit:inly will he tr>o long" a 

.IV. my Idnl, »he^ oii«^hl to ha\elK>en 

^ ^, V .. ..* iiihi \ uiil !*<• pi. a>f:ii to Im' rira^'y 

.. ..!•»» uiomin;,'", J pray il may jjo ott'to no 

^. ...»*.. .«it'e. 

».%. .c .'»»i«. There is a i;«cfs'^itv» n\\ lord, 
I. ^ 111.;! it iihoiilil Ih- ku ; f.ir thoru is a \nn^ 

41 :iie Iwr Ihtc on Krida v . 
%t ]\ iliiams. 'I'hat is u \ery short time, 

\.Ni»Ci* JoiKS. You uuist he re ady to-morrow 
■^ > titt 1^ ■ 

\tj Wii'iims. I'lihsK, m\ |f»rd, you will 
^,*cu'**4 little more tuiir, yoi had as tr«M>d 
. :ti u^ no time. 

* / t*. J. It seems tin- hiisiiu s:-* of llu- Court 
Ik mu!i, on l'Vida^\ monniiiC \ .mi cannot he 

beasd* 

J w^lliTv Jonci. ICiiher it uuist l»e to-morrow 

^i^rtiuu; or Saturday, aud that is £xcbe4[ucr- 

^JliOibier day. 



?4 1 . — Fre€eedin^s agtaift [C 

vh. (jtn. 3Iy lord, I belief e dwy are not 

L. C. J. Mr. An«niei-. We wookl eiTe th 
I r^ra^npaMe tinie ; but Vet we woufd do i 
uiiitf that lui^ht make unncceanry delays 
nts case. 

Att. Gin. I pray, my lord, let it henolonj 
th.-'.n till tu-morpiw-. ^ud that es more than e 
was i^iveu in such a case. I know it was < 
oied ui my lord !!»taff'*jni's case ; titer woi 
not eive the crtuDs^-I any time, but woilld mi 
theuj argue presently. ' 

L. C. J. A^ t«» that, Mr. Attorney, en 
case Ntani'iS upijn lis own b«'»ttnm. 

S^ri. J/?r/if<. >I\ lofd, we hare voor 
rcction i'or to-in«/rniw morning'. 

Sir Fr. If'iv. No, no, my lord, we h( 
not «o. 

/.. C". J. Look 1-ou, gentlemen, to accoi 
niodate yon. the i.'oiirt doe« think tit thus 
do : we HJil h'* here on KatiinSay by sei 
o'chM'k in the morninc". On Friday we can 
nothing, for theieis a kmg ti-ial at bar that i 
take up our time ; hut on Saturday we m-ill 
heix- \i\ eight o\-lork stttini;^. and expect yon 
be here by thai time : ami we cannot afic 
vou then king time to a>^ue in, because it is 
ll.\f:hrf|uer-C hatuhcr day. 

Att. (Jfn. It judgment lie a^inst the pk 
they niiu»t plead p!r:«eRtly then, that we m 
not li><»e the tei ni tor a trial. 

/.. C. J. \f»\i must take notice of that, 1 
tl.e rules of ti;e Court thev must do it, S 
Altormy. If our ladguuni be ag'ainst thei 
the eiMirseof the enuit is so, we cannot rule 
one way or othir. 

Strji. Jrlhri'- Hut then they ouijht not 
pn tend they lla^e no n<itiee, their witness 
are out of die v.n\ . .ind s'> liinder the triaL 

Justice ./..ri(%. \'», No. 

Fi*zhnrri>. .^iy hutl. I d»"iir** I may hi 
these !t:rds cnjpi, to nw ; uiy lord of Ess« 
niv lord Salisimrv, iua !ir.d uiavor, vour lor 
ship, and sir Hiik'rt (.lauon, to |>eriect n 
ilistHnerv". 1 haie jw-mtthinj^ to discover 
your ionlsliip and them. 

L, C. J. \ inii- disc^cry of what, do y 
mean :* 

Fiisii. Of the riot, and 'd" the murder of i 
bdnmniil)ur\ (i<M!li-«>\ . 

Is. C.J. '\Sv «1'«! rvnuiir.p v^" about t 
imnder of sir ICdiiUU'.dlMiiy (icMifrey. 

i'lLzh. ^'(-ur ii>4i!>liip went away in hasi 
lietore 1 had ti.l'l all \ could say. 

L. C J. We a*»ked you ii-n times, whetl 
you liad any more '.u s.y, and \u\\ said, No. 

y'*:h. y\\ loni, i V IS in oonfusiou and co 
sliTitaiion ; I se.iue knew Avhut yourlord&l 
said (>) me. 

L. C. J. ^^e v\eiv uoi in haste ; we ask 
you olien that ri.estioj!. 

Fi^zli. It wr.s haste lo nu!, Iiecausc I n'as I 
pro\iilef! ot'tiii- ipiestions *. ou asked me. 

Jiistici! Dvtbt It. To souic of the questions t 
aske<l yor, you answertnl readily and freelj 
hut to some wc coidd not \gsX a positive aniw 
hy any lucaus. 



281] 



STATE TRIALS, 33 Charles IL iGSU^Edward fitzkarris. 



[282 



Att, Gen. My lord, he told me he was not 
in England tbeD, and that lie knew no more 
iban what he had discovered. 
Fiixh. Did I tay so, Mr. Attorney ? 
Ait. Gen. Yes, you are the man. 
Fitzh. I can brin^ 20 witnesses, I did not 
teU y«»a so ; and I can, Iniug 500 witnesses, 
Ibt'l was in town then.' 

L. C. J. lieutenant of the Tower, take your 
moner, and be here before ei^ht o'clock on 
bturdav momxn;^. 

Sir I'r. Win. My lord, now I desire we may 
kifc a cony of the whole record. 

L C. J. Not of the indictment, but of tlie 
flra aaA demurrer you may. 

Sr Fr. Win. But, my ibnl, I hope you will 
kl iha indictment be read upon Saturclay, be- 
Xr. Attorney had fixed his exception 
put of the indictment, which is the libel 
calls the particular treason, and 1 desire 
ilaay be in Court. 

L €■ J. It shall be, and if you have any oc- 
CMB of reference to it, we will look upon it ; 
veHtiU upon our oathn, and muRt take heed 
tew pnjiidice be done to the kini;^, as well as 
It tee die prisoner have no uniair thing* put 




Ita the prisoner was carried back to the 



QtaSitarday the 7th of May, 1681, Mr. 
^* — '- was brouffht to the bar of the Court 



tf Kki^Vbeocb, about eig^ht o*clock in the 



Sr. WUliami. May it please your lordship, 

I VMgned of counsel for this person, Mr. 

ViUkHiii, the prisoner at tlie bar. 

^J^- Gtn, My lord, if you please,* I will only 

kH^Hmaint them with what our E.Yccptions 

i^MUicy may apply themselves to them. 

LCJ. Look you, i^ntlenien, I must tell 

^ iB our time is strait enough for this 

■Mkr, ibr we are all of us to be by and by with 

jtfce Judges in the Exchequer- Chamber ; 

*8Rfire we pray this of you, we will abrid^^e 

^■n^s speaking what is material for this 

fal, but we desire you will keep to the 

Mkr, and the points in ouestion between vou, 

^ nve our time as much as you can. 

Att. Gen, That is the reason, my lord, why 

1 vrndd hy my finger u|»on those points that 

*flbe the qufstions between us. Now the 

bontions 1 take to the Pk*a arc tlicsc : this 

■• plea to the jurisrliction of the Court, and 

IM of our RxceptKHis are to the form, and one 

■ Itthe matter. To the form, my Exceptions 

^Jikne : fimt, we say that the general alle- 

Nm tliat be was impeachctl dc alia Prodi' 

inr b mioertain, and too general ; it ou^ht to 

tot been particularly set out that the Court 

Shi judge, whether it be the same crime, 
il M mjI bellied by the aycmient. And the 
JHnoepiMiD I taketo it, is, liere is no im- 
MkBCBlalledBed to be upon roooni : I men- 
JM this the last time, and kiokuur more 
iBttljiBtoitylfinditissoasIsaid: n>rthey 



come and make a general aUegation, that Fitz- 
harris, such a time, was imjieached, * Impe- 

* titus fuit,' by the Commons before the Lords, 
' Quicquideni impetitio, in plcno robore existit, 

* prout per recordum inde,' &c. Now, my lord, 
there is no impeaehmcnt, mentioned betbre : 
and * qnie quidem iiniietitio' is a relative clause, 
and if there be no impeachment mentioned 
before in the plea, then there is nothing averred 
upon the record, to be continued or disconti- 
nued ; for Impetitio does not actively signity 
the impeaching, or passively the person im- 
peached, but it signines the indictment or im- 
peachment, that instrument which contains the 
accusation, and wliich is to be and remain upon 
reconl. Therefore, when they come and say 
he was impeached, and afterwards allcdged, 

* Quue quidem Impetitio' remains upon record, 
that cannot be good. If a pica should be * Indie- 

* tatus fuit,' and allerwards they say * quod qui- 

* dem Indictamcntiim,' &c. it cannot he good, 
for the relative there is only illusive. These 
are our exceptions to the form. For the matter 
of it, it is a jdea to the jurisdiction of the 
Court ; and, with submission, there the point 
will be, whether a suit depending, even ni a 
superior ('ourt, can takeaway the jurisdiction 
of an inferior Court, who had an original ju- 
risdiction 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 
l»o of another consideration ; but whether tnis 
be enough to make it amount to such a plea, 
as will take aAvay the jurisdiction of a Court, 
that had an original jurisdicti(Mi, that is the 
question before yon. TIicso are tlie exceptions 
I take, and do insist upon : and I desire, my 
lord, the counsel will apply themsi^ves to these 
exceptions, to answer them; and when we 
lia^e he^rd what they can suy, I hope to give 
them an answer. 

Mr. Williams. My I>nrd, I am assigned of 
(counsel for the pri<K)iier at the bar,Edwai'd Fitz* 
harris, who is indicted here tor high-treason, and 
hath pleaded a special plea to the jurisdiction of 
the court : and I ini*stci*ave leave to state his 
case upon the indictment, the plea to the indict- 
ment, ami the <lctnun*er to the plea. And the 
case, iiiy loni, upon the whole record stands 
ihuH : he was indicted this term, by one of the 
grand juries for this county, of Iffisj^h-Trcasou. 
As to the Indictmcut, it caimot be exjicclcd I 
should state the parts of it, it being an Indict- 
ment I never saw. To this Indictment tJiua 
ftresented, Fitzhanis Imth pleaded thus : That 
le ought not to be compelled to answer to this 
indictment because thai bcftire the ludictinent, 
waii found, at a parliuinoiil held at Oxford the 
Slstof March last, he wa<« impeached by the 
kni^fhts, citizens, and burgesses of the Ilouse 
ofCommimK in paiJianier.t awembled, in the 
name of tlieiiiselves, and of all the Commons ol 
England, of High -Treason; and that this wai 
liefore the court of liOnls in that |>arliament. 
He says farther, that this iniijea(*hinent is re- 
maining in full force and eficct before the Lords 
in Parliament, * prout per recordum, inde inV 



283] STATE TRIALS, 33 Charles IT. l6Sl.--Pro€iedingM agakui [2S^ 



Record. Parliaroenti remaDOis plenius liquet eC 
«pparat.' These are the words of the plea: 
and then he avers, that the Hijrh-Treasoii men- 
tioned in the Indictment, and tne Hig^h Treason 
qiecified in the Impeachment, are one and the 
•anae. And he furtlicr avers, that he is the same 
Fitzharris named in that Indictment, and men- 
lioaed in the Impeachment.. And ailer the aver- 
ments, ho concludes, to the iurisdiction of* the 
court : whether upon all this matter they will 
proceed any farther against him upon this in- 
dictment ; and demands the judgment of tlie 
court to that purpose. 

Upon this plea, Mr, Attorney' hath demurred 
generally, and we that are ot counsel for the 
prisoner liave joined in demurrer ^rith him. 
Now in this case which thus comes before 
yon for your judgment U|)on tliin pica and 
this demurrer, 1 take these tilings to be ad- 
mitted. 

First, That tlic prisoner stands impeached, 
hy the Commons oi England in parliament as- 
ficmbled, of High -Treason. Secondly, That 
Che impeachment thus made by the Commons 
ID the name of themselvirs, and of all thv 
Commons, of Englan<l, before the Lords in par- 
liament, for treason, is now in being. Thinlly, 
whidi I omitted in the opening of the plea, that 
this was done * secuiid. legem, et cons, par- 
liammti ;' and being so remains * in plenis snis 
robore et efiectu." And more particularly this 
plea does refer to the reeonl, for t nc parts and cir- 
cumstances of the Impeachment Uself, < prout 
patet per record . incle inter,' ^c. S(» that it does 
refer the lm|)eachmcnt itself to the record, and 
tells you this is amon^the other records of that 
parliament : all this is admitted by the pica. 
Fourth!}', And moreover, that this treason, for 
which he stuiids iinpeaclKNl before the Lords, 
and the (r(•:i^oll for which he stands iiidictefl 
before this court, are one uiul the same treason 
and no way di\ers<' ; and so they arc the same 
numerical thiiii(, and there is no m:uiiicr of dif- 
ferent : and tiiat thi«i jK.reon Fitzharris, now 
indicted, and the l-'lt/imrris impeached, are one 
and the saiur person, and no wav di^ t'l'sir. AimI 
withal, my lord, it appi-ai-s ]ilainly upon the ro- 
f^ord, that this liii[>c:ichnicnt was dcpendjirjf 
before : the f ndiclincnt found for the parliunicnt 
was the 21st of March, and it appears by the 
record this is only an Indictment of this term. 
And another thing 1 must intrcat }0U to ob- 
serve, my loni, it docs not appear biit that this 
parliament is still in being, for any thinp^ to the 
contrary in the reeonl, and as I take the case, 
then it must 1m> admitted so to In?. 

tte then, I take the plea to he in substance 
thus, though Mr. Attorney was pleasi-d to ex- 
cept to iMrtii the snlwnmce and the foim ; but in 
substance the case is tfuis: here is a person im- 
pcacheil in parliament, by the Commons in l*ar- 
tiament, for Hi;xh-'i'rtVson, before thel^nls in 
l\irliament, and for a\ight appears that Parlii»- 
ment still in being, and this Im|»eachnient still de- 
pending; then here isan Indietnientforthatvery 
treason : whether your loi-dship now ^^■\\\ think 
fit In thJB court to [nDcce* t u^>on tliat indictment. 



is the substance of the case. I ahan speak ti 
the form by and by. 

My lord. By the way I think it will not b^ 
denied, but that the Cktmmons in parliameaj 
may impeach any Commoner of treason be^ 
the Lords in parliament ; 1 take that to be ad< 
mitted. And I do not find thai Mr. Attonie| 
denies it, or makes any doubt of that ; tor i 
think that was the case of Treailian and Bel« 
kiiap, who were impeached in pviiament by tb 
Commons before the Lords : I am sure mj 
Lord Chief Justice Vaughan does, in his Re« 
ports in Bushel's Case,* say so ; and upon thai 
Imjieachment of the Commons, one of thcsD 
was executed, and the other banishedi in par 
liamcnt. My Lord, I cite it not roerrilyy but ] 
cite it as authority. Indeed I do not go so fti 
M to cite tlie Faruament Roll, it was in the timi 
of Uichard II. I have not seen the RoUof bti 
truly, but I am stire it is upon tlie Roll, and thai 
it is to be found. 

Since then Impeachments of Commoncn 
will lie in parliament, here then, my Lord, wil 
be the question, Whether this court may jpn»- 
ceed upon an Indictment tor the same oSteoei 
the [larliamcnt was for ? And here I shsU dis- 
tinguish upon Mr. Attorney : he does sJknr thi 
parliament to be a superior court ; hut admit- 
ting that, he says, though it be so, yet the in- 
ferior court hanng oji^ial jurisdiction of tha 
pci-soii and the caiLsc, it may proceed notwith- 
standing an indictment in the suiierior cooit ; 
and, ergo, he does infer that this court rmj 
proceed upon an Indictment, noCwithstandiBg 
an luijieachment in parliament. 

My Lord, i will compare a little the rase of 
an Indictment and an Ini])eachment, and slieir 
how inauifostlv they differ. I do take the ease 
of an impeacfiment not to be the case of an 
indictment, and so the prinf:iple that Mr. At^ 
tornev hath taken is wrong, an<l the ground id. 
that argument wrong. 1 cannot say it is like 
the case of an ap|H:aI, but I may say the 
ca>:o of an appeal is like tlie case of an im- 
peachment. For in an ap|»eal of murderi 
though the indictment be capital, and the sams 
that is given upon criminals prosecuted fur the 
king, yet it is at the suit of the |»arty, as in this 
case it is at the suit of the Commons ; and as 
it is an intimation of, and analogical to, aoi 
ho^us the rcsen\bliinc4; of an impeachment in 
parliament ; i Avill not compare au impeack- 
iiiejit to an apfH'al, hut I will say an appeal 
imitates an ini[uachnicnt. And it is as plain as 
can be, l>ecausc appeals are proper tn courts 
in U'estmiDstcr-hali, and it is at the suit of tbs 
|>arty, the prosecution and all the process ia 

* ud instantiqu) partis ;' so is an imjicachmenl 
at the suit of the Commons. An indictment ii 
f(»uiid u\Hm the pnfsciitiuent of a Cirand-juijt 
who are sworn ' ud iiupii rendu in pro Domino 
' Ucge pr(» Cor]>on; Coui.^ and it is a mistaks 
in the form, when it is snid, ^ et pro Corpora, 

* Com.* for it is not for the king and the bodjr 
of the county, hut lor the king for thcliodysi 

■ ■ ,— — 1^ 

* See i^ol. 6, p. 9Q9, of this CoUcctiou. 



2«5] STATE TRIALS, 35 Charles II. iSbU-^Edward Tiizharrlu [28(> 



riH> connt J. But now an impeachment in par- 

liatnient is othenrise ; it is not in tlie name of 

tbc kmf^^ but in the name of the Commons in 

PiriianMiit, and of all the Commons in Eiig[- 

Und, wherein it suits with an appeal, which is 

at the suit of the party ; so tnat it is like an 

appeal, and not like an indictment: an iiidict- 

vciif is for the kins;', an im[H.nicbnient for the 

people. And as it is in its nature and consti- 

ntioo different, ao it is in the prosecution also, 

for that is by the Commons of Eng^land, tliev 

ve the prrMerutors in effect ; but now in all 

ndicliiients they are prosecuted al^vays by the 

kbs's attorney, or by some person in tbc name 

if the king'. "^Ve are now arpiin^ u|i<m the 

BetMs and forms of parliament, therefore I 

mrt crave leare to inust \x}^m those nieth(Nls 

BMre peulicularly. The Commons they hriii^ 

^ the impeachment to the Lonls, tlise Com- 

BOBftthev prosecute the imi>eachment, they 

Moa^ the evidence u|)on the trial ; and when 

ihe iMtlii have consiilered of it, and have found 

Ihete, the Commons come and demand judg- 

■KBt, ud judpiient is ^fen at the prayer of 

fte Commons, and no otherwise, and there are 

M f mmd ings by the attorneys. Indeed there 

katcWa attempts by attorneys to prosecute 

y nuM in parliament, by exhibiting' infonna- 

tiMi a Itie parliament ; Cut what success they 

kive had, 1 leave to them to considor that arc 

naoeraed, and have read the Rolls of Parliu- 

■oiL But it is not safe to alter the old ways 

■Tpviianient, therefore I take it under cm- 

VHlHB, that it is out of the road of com[mri- 

■aif when they will conipare an indictment 

■in impeM-hment tocher ; for they do not 

^ff^ but differ extremely. 

IwBoUthen offer you.sopne reasons why 
I^QMrtoii^ht not to proc^l uiMm this in- 
M. Itake it, \% docs not become the 
if this ciiurt to weaken the methods of 
in parliament, as this court will 
^Statlj do : for if you will admit this to be 
fkeoMunL that I have o|ienc<1, vour pniceod- 
*St vil aher it. ^Vheu there fs an im)>each- 
■nf depending in |wrliament for treason, if 
par loruship will admit there may htt an in- 
vtoKitf here afterwanls in this court, and 
fwredin^ in this court uimn that indictment, 
<■ tn alter the nietho<l cd' parliament- proceed- 
^^ anil to sill ject the methtNl of their pro- 
MbAh^ tliereto the proceedings of this court ; 
■iahat the mischief of that will be, I mu«t 
kMeto your lonlship. As I opened it before, 
^mainA nf both courts are different, and 
Ur pmceedin^ very much \'ary , I think, I 
■Mi IOC tn*ub& your lonlship with that ; we 
'kSMT it very well in the main. Indictments 
hllii eonrt are to be tried by a jury, where a 
must be ipvcn presently : there is but 



e^UfBUle time fur yn^'i"? ^^^ evidence, or for 
■b|^ observations for the crown, or for the 
; and in order to briu^ it to the trial, 
nwi be an immediate plea of Guilty, or 
■i Coihy . Now if the pniceedinofs of purlia- 
■M wm; so Midden, there might be a i^eat 
^liie, and great offeoden piM unpuntfhcd. 



because the prosecutors had not greater time 
to inspect the reconls that might wi of avail in 
the case: therefore in parliament it is quite 
otherwise ; there is time for deliberation and 
(M>nsider<ition, there are many references, and 
many examinations, which are matters of de- 
liberation and consideration, which take up & 
great deal of time ; but hei-e you are straitened 
not only in time, but b(»und up to strict rules, 
anil so are straitened ]sx your methods and 
{ forms of proceedings, al Mr. Attorney would 
' here tie us up to the fdrnis of little courts : but 
it is not fit that the justice of the kingflom, and 
high court of parlianiont, sliould be cramped 
by the methods of an inferior court, and % 
jury. So yow will tlien subject the methoda 
of pi-oceedmgs in parliament to the courts in 
Westminster-hall, and what the consequence 
of that will be, is Avorth the consideration. 

Another reason I would humbly offer, is this, 
my lord : The parliament is tlie supreme court 
ceilainly, and tliis court is every way inferior 
to it, and it will be 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 Parlia- 
ment are supposed to be a greater and a wiser 
iKMly than a Grand-jury of any one county. 
The Peers, wli(» ^re the judges in thai court^ 
are supposed to be the wisest judges, as the 
Conmions the wi*<eKt inquest. Will the law 
of England now suffer nu examination, im- 
peachment and prosecution for tn^ason, to be 
taken out of the hands of the greatest and 
\s isest inquest in England ? And will the law of 
Englund suffer the judicature upon this prosi*- 
cution to he taken out of the lianiis of the wisest 
and gi'ciitest judicature, and put it into llie 
power t)f a smaller nundier of judges, or of an 
uiferior jury? I do think it does not stand, mr 
lord, wit)i t1ic wisilom of the go\ennnent. 

Another thing is this, my lord, tbe common 
argument in any eMraoniinar}' case, there is 
no j)rec(Klent for this uay of proceeding ; it is 
my lord Coke's arirunient m his 0>mment 
upon Littleton, fol. 108, and in the 4th Inst. 
! tol. 17, in his Coinnifut u|H»n the High Court 
I of Parliament. And he takes occasion to speak 
! itui>oii the account of that precedent, the case 
! oftne indictment ngaiiint the bishop of Win- 
I Chester, aud of that against Mr. Plowden ; and 
j he s;iys. This was never practise<t liefore ; 
therefore it ought not to l>e : so he infc-n;, and 
puts a hhu;k murk umin it, by saying it is a 
dang<M*ous attempt for inferior courts to alteir 
or meddle with tne law of parUaments. For 
the wrmls I refer myself to the b(N»k, I dare 
I not venture to lepeut them uiN»n my memory, 
I So in this case, in rcganl ttiat it never wat 
! done frr>m the IH-Hfinning of the world till now, 
the :>3d year of this king^ I may say, it being 
without prec<Mlent, there is no law for it. 

My lonl, there is unother misihief that will 
certniidy follow upou this, and that too runs 
upon this couijiarlson of an appeal and of an 
indictment. In the case of an indictment, it is 
in the power of the prim re to pardon that ju- 



S87] STATE TRIALS, 33 Cn arles IT. iGSL^ProceediugM ag&bui [281 



dictment, to [MunloD the punishineDt, and to 
pardon the oflTcnoe ; but in case of an impeach- 
ment, I take it to be otherwise, as it is in the case 
of an appeal. And, my lord, if your lordsiiip 
will take this case out of the power of the par • 
liament, and brin^ it into this court, where the 
offence may be panloned, 3'ou do bv tliat means 
subject that offence, and tliat metho<l of pro- 
ceedinflfs, which ^lould make it, without con- 
tent of the party proeecutin^, not pardonable 
by law, to a pardon : tuid this may be of dan- 

Serous consequence to the public, tliat crimes 
lat are heinous and gresA in themselves, 
mighty bulky crimes, fit for the consideration 
of a parliament, be they never so great, never 
•o dangerous to the government, yet kIiouU, 
by giving this couit a jurisiHction, and |H)s- 
sesamg it of these causes, expose them to the 
will of the prince ; and so those crimes, which 
are impanlonable by methods of proceedings in 
parliament, wouUfbecome pardonable by pro- 
aecntion m this court. 

Now my lord, for my authority, that im- 
peachments are not pardonable, I would only 
fiint a little to compare it to the case of an Ap- 
peal, as Penryn and Corliet^s case in 3 Croke, 
Hill. 38 Eiiz. ful. 464. Tliere was an appeal 
of murder ; upon \»hich he is found guilty of 
manslaughter, and not guilty of the murder. 
Tlien there wasa panlon pleailcd of the burning 
in the hand, or of the pnnisluueut : It Ls n(it 
plain in ^le bo<^, whether the panlon Avas alW 
the verdict, or before (tliat 1 cannot be clear 
in) ; but however, there was a Question whe- 
ther the queen couM pardon the burnuig in the 
hand; liowevcr, it uas thcix; allowetl: But 
there was an exception, my lord Coke, who 
was then Attorney- General, took, that the 
king could not panlon, if it had been an appeal 
of homicide ; and he conouireil with the Ciaiii 
in that opinion. lUit that apjteal being for 
murder, and the verdict of uuuihlanghter, they 

Iiassed over the question, for this reason thut I 
lave mentioned. That tlie appeal was not lor 
manblanghtcr, it was for munlcr ; and if ho 
luul l)eeii fountl guilty of the inunler, it Avas 
not in the i>ower 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 state.l tlie thin;j:, and the conse- 
quences of it, and it is not fit lor me to dwell 
upon it : You will consider of it, I am sun:. 



him, that no person ought twice to be brought ia 
question for one and the same thine, and to, 
my lord, you make a man to run the riik oi 
his Hie twice, by indicting him in thn coot, 
where, though he be acquitted, he may bi 
called to an account affain, if the law be w. 
And if the Lords m ParliameDt should be d 
opuiion, for they are the judges of that caH^ 
tliat the acquitod will not be binding to.then^ 
then a man's life is brought m queotkin tma 
upon the iBame account. 

My lord, I now come to this, the time, h&m 
unseasonable a thing it is, ami how dnngeraH 
to the government; I take it to beacrilieil 
tiling now at this time to make such attemnli 
as these are. There are lords now tint'kii 
under impeachments of treason, the higfam 
treason, 1 think, that ever was contrived ; md 
ujion this impeachment one lord hath been oon- 
victed and executed. Suppose upon the diiso- 
lution of that parliament tliat impendbed tfai 
late lord Stafford, there had been an 11 
against him for one and the same 
by the same reason that this court may 
Cecil, his majesty may appoint a high- ' 



to try bv a juiy of peers. For the court h^ 
before the high-steward, is as much a cant 
any court in tlie k'uigdom, except that 
liainent. I say, suppose the king had a_ 
ed an high stewani, and tliat Imtl-h^^ 



ard had proceeded against my lord S uflhH, I 
think my kird Stafford hail been alive at ttii 
day. I^or in the cose of treason your 
knows there mnst be two witnesses ; and I 
sure theiv <>aine in fresh testimony against WHf 
lord Slafford af^er the second parliament aftv 
thf> imprachnient. I apfieal to tliose noUs 
lonU that are h<.Te, if it were not so ; and htA 
it not been for t1i:it fresh testimony that CSBN 
in afterwards, |M»vsiblv my loni ^^f^OId miglt 
ha\e l)een alive ut this tiiiie. And the lioril 
in I'arliaiiUMit. as I hive ubscr^-ed in thebenfrt 
uiii^r, when they find an high crime bdM 
them, \\ hen they find sudi u general cQnli« 
gious dt\>i:^n to subvert the government, ani 
yet they eaiiiKtt come to cut off the prindpri 
agents in this design, heeausc periiape them 
may not he two witnesses in strictness of Isw'll 
thetirst« it is the wisdum of a parliament todefi* 
liei-ate anil to take time. The giMMl queen wtf 
iisfdto siiy, truth was the daughter of tiHM| 
und lime woiiUl profiiice tnith, "^ \'entas iUs 
*■ tem|K»ris.' If then there had been Uf 
such liusty prru'eeilini^s, as in this case,ldon6 
my lord Stafford hud \wnm now alive. NoW 
tlien for these lords that are now in theTowfr^V 



Another thing 1 woidd say, is this : If your 
lordship should ine<ldle witli this way of pro- 
ceeding, it will invert the law in another tJuiit;; 

for it is a principle with us, that no m;m\ life ' y<.i:r lordship do goon iw this way, do you nSl 
is to lie put twice in danger for one and t\w. | o{K>n sueli a i^^ap, as may he a gnniud toddiif^ 
same thm&f. I i^ill then put the easo thus : If tliem Ity the same justiiv (I speak it under oof^ 
your lordship should proret^l upon this hidiet- n etion here, and 1 on'iv otfcT it to your jwhpr 
ment, and this i>ei'son should he aefjiiitted noon j nient, litr I h::ve not haif muny hours "to consiMr 
it, I am in > our lordship's judgment nhether of it; but v our lordship will tliink well of H 
tliat ac*quittal will ]»iiid the Loids in Parlia- | before you give any judgment) by the ssi^* 
ment ; If that uill not bind them, but they may I justice t-ie other lonis may be tried by ai '^ 
still proceetl on the impeachment, then \ uii omrt ? This I ofler in point of rcoiion, thi 
invade that c«mmion right whieh e«ery ling- | ]>recetiding m ill Im* very hard, and is an ii 



anoll 
thatH 

^ ..... img M 111 IM* very Imrd, and is an inipi^ 

lishnan by the law ought to have presened to j dent thing, if not an Illegal procoediug. Mr 



J 



M9] 



STATE TRIALS, 33 Crarlbs II. l6Sl.^Edward Ftizharrh. 



[290 



lofd, I am sure it will hare this effect, it will 
■tir op a qaestion between the jurisdiction of 
Ihif court and the oourt of parliament : For in 
all probabilitjy if this perMMi should bearc|uit- 
led, the ComnooBi and the Lords will look into it. 
HiCT are « oourt that make a survey of the pro- 
ceounn of all other courts ; and they i^ill exa- 
mne taia proceeding, or at least may do. And 
if be be mmd guilty, here- is the power of the 
CaronKNiB in impeaching, and the jurisdiction 
of the Lords in trial and judgment, taken away 
bv an inferior oourt to them, and so stir a 
between this court, and that highest of 
the parliament. And what will be tiie 
mre of that? Tlie judgment of that 
will be in the supenor court, for there 
■ aa Buddle court betucen this court and the 
faiiament to judge of it ; tlierefore I submit it 
Id vaur kHdships. 

Tbcae an tbe things which I offer to your 
hiUip in point of reason, whereof some go to 
the pnidenee of the tiling, some to the reason, 
■daase to the ill cunscnuences that may 
hajfta npon it, and I thiiiK many to the ille- 
naly af the act. And now this lieing said in 
tte pBKnlf I come to the particular exccp- 
toaa Bade by Mr. Attorney as to the fonn of 



Tfti 



FViapleaaed to say, tliat this plea was a 
ftiiut wai plea, which is his exception in 
fal ; and be gave you three reasons for it 
Mfcn, and does now insist upon tlie same for 



Qte was diis, and he insisted npon it at this 
tee, Ubi plen does not set forth any record uf 
mlfu^himut, nor tlie particular matter of 
lli«ai Aii eonrt may jucwe of the reason of 
it; As hr compares it to Uie case of a plea 
w *aMv fbitx acquit.' If a man hath been 
isCBMiad acquitted^ he may plead it in ano- 
thvsMR tint hath jurisdiction of the cause, 
iTAiltanin indided for the same matter : 
hi, ay taidv first of all, 1 take this plea to be 
*ril|kadBd in form ; and, in the second place, 
if toe be any informality or defect (which I 
^■rt tripe it that there is, but if there were 
ijV meh thing), I take it, it is of another con- 
■iMiDii, which the court will deliberate lie- 
he they gifv theiriudgment on. 

Bat I say in the first place, 1 take it to be a 
i«y md plea, and that it is good according to 
ti|hadiaij^ of « anler fiutz acquit.' In plead- 
%tf a general act of parliament, we need 
Mm fiitth the act, bnt refer to tlie record ; 
wfll depend upon the method of im- 
ni in parliament, wliich I am of opi- 
bow the general law of parliaments, tiiis 
\ mt^i/L to take cojBpnizancc of. In the 
lif^aafeer fiiitaB ac^iut,' there is first an in- 
IHlMOoeedinffot the court upon the plea, 
r nl, and n &r arquittal, and a record of 
ii SMiier. If now this person comes to 
tead again for the same offencp, there is a 
d ftr Un to plead that will shew forth the 
"•■allv ; andif he does not plead thut 
ii it ia his own dcAnh. But in this case 
iisBSiaAMCOid-'lo plead, and there is 
«0U Till. 



the mistake upon which Mr. Attorney has 
gone all along. And you must in this case bo 
goremed by the ndc and inetlmd of {Nirliament, 
which is this : The Commons, in the name of 
themselves, and of all the Commons of Eng- 
land, impeach such a person, and they bring up 
this impeachment to the Lords in general, and 
there they have liberty to present articles in doe 
time, af\er due consideration, which ought not 
to be done hastilv. All this is no record, such 
as may be had in the case of * auter foitz 
' acquit :' For first, the iini)cachment of iho 
Commons is no record ; when it is brought up 
to the liords, there is only an vnXry into tho 
Journal of the Lords, that such a day such a 
person came from the |{ous4| of C'omm'ons, and 
imiieached such a one. Aiid you are not to 
expect the same strict method, and form of 
proceeding, as in other courts, tho courts in 
Westminster-hall, or inftrior courts. Yonr 
lordship in this case must be governed by such 
pntceeding as is in parliament, and must 'take it 
as it is ; and we have said enough, ainl as much 
as can be in our case. "Wf" have not indceil set 
forth an indictment, a plea, a * Venire facias,' 
(Vc. for there is no such proceeding in 
parliament ; but there was an imiieachmeut by 
the Commons, in the names of themselves and 
of all the Commons of England, before the 
Lords, that it is * in nieno robore et efllectu,' 
and that it was * secunuum legem et consuetu- 

* dinem parUamenti, pront paiiet inde inter rc- 

* conla remanen.' &c. And here is enough. 
For when we refer you to a record, that is as 
much as if we had set forth the record itsc^' ; 
for we tell you there is such a record, and wo 
point you to the place where you may find it, 
and so we take it, it is a vcn- full plea ; and 
if not, it is as much as any man f*an plead in 
such a case, though it be not pleaded particu- 
lariv. 

Aiid, my lord, that your lonlsliip is to judgo 
in this case acoonling to the methods of parlia- 
ment, 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 liorrowed it out of Flcta, That tliis high 
court of parliament * propriis suis legibus et 

* cmnsuetudinibuB subsistit. Et ista lex ah om« 

* nibus quoreuda, a multis ignorata, et a paucid 
' coguita.' But he tells ynu, and certainly ho 
says true in it, Whoever 'will Ik* U*amed in tli«i 
law of |>ariianieiitB must ro^iair to the rolls of 
iwrliamcnt : And give nic lt>a\ c to cite liis opi« 
iiion, which, I hu|)e may be of grt-at weight 
with tliis court : It is in tile 4tli Institute, f ul. J 5^ 
he says. For any tliint^ iiiovimI or done in th^ 
House of Coniuums, it out;! it to be determined, 
adjudgcf 1 an<l disMrusKeii by the course of parlia- 
ment, not bv tlH> ci\il law, nor vet hy the com- 
mon Iuh sot this ix'alni, useil m mort* inferior 
courts, wliich M-as dcclaitHl to \w. * ser-nnduni 

* legem et consuetudint'ni [i:irliamenti,' cob» 
ccming the {leers, and the like, pari Vatione, for 
the Coinnions ; an<ltliat stops tliis court in our 
case : Fur so it is Kiid in tills ])U'n, which is the 
matter you ara to be governed bv, that it is * 9e- 

U 



sgi] STATE TRIALS, 33 Chaclbs 

* cundum legem et eoiuiietiiilincfti paTliktaenti. ' 
He tdh you further, Iheie i* no notice to be 
ttkra of mny thing uid or done in the Houie of 
Coaunou, but bv the report of that Hoiue, and 
erery member thereof hath a jixUciat place ; 
be take) it oiit of Henry 7, and ao the book is 
exprcKly. And he i^oes on i Thii ia thereason 
1^ Jo^KM oujilit not to pre any opinion nf 
nwtlen of parliament ; b^tiie it ia not to be 
deeideil 1^ ihecommon latra, but' aecundnm 

* 1eg<ein et cmiBuetuHiiiein pnliamenti.' 8o he 
lelU you, you are bound by the methods of 
parliainent ; ond I need not preu the thing 
much after hiiHullrarityi fiirhewaa learned in 
parliaiocnt matlerij. 

But I would craTF leave to mention a case 
that waa laldr in this court, and that waa the 
ease of my lord iif Khafteabury,* who wm 
brought In' tliibras Corpus to tliiacourt, and 
upon tiMt Habeas (JorpiLs it n'en liius retumeil, 
That he was cnmmitteil bv order uflhc Lords in 
pariiament, there til remain durini; the plpasure 
oftbekiuff and (if the House of Lords ; ami this 
for an l^i coutcmpt cnminilted in that House. 
Upon thii return ive iniisted tliat my lord might 
be boilad, because itwasuncertnin, the pleasure 
of the kug, or the Hourc of Lordx ; and upon 
rendiiig the order, thprc is no crime cxpresaed, 
' bat odyin^timl for an high contempt. I 
■peak it Dot lor the particular caw's rake, but 
to apply the reaiion of it to our case ; the rea- 
son then giren by tlie Juilg«M, Wr. Justicfe 
Jones will please to remember it (for it was uar- 
licularly declared by him) why they could not 
bail my kird, was this ; he was pleased to say, 
Wein thin court take notice of (he court of Ex- 
chequer, and otiiercouris iu Heslmintiler-hall ; 
and it would be straiii^ if we should nut 
take iMtice of the course of pariianicnt, and 
House of Lords. And if you aiv lioiind so to 
do in other cases, you are iHiund to do so in 
this. And If wilhmit pleading you take notice 
of tlie oourae of thuEie <'ourts, you will also 
litkc notice of tlie law of jMrliunieiils, and cun- 
loms of parliaincnls. And (IJiat I may make 
Ksc of it to our puriNiw.' iii this case) we need 
not |iarliculurl; »iiv, ' KiTimihim k;gi-m ct con- 
' suetudiuem 'iKtrGnnM-nliiuhiir,' instancing in 
this, and that, and tin- other iwrtii-idar : Hut 
Uieoourt is tuloukiiilo it, nitliont luy looking 
into tlie panieniar law of pariiauutit. * !Jo that, 
iny loni, here is ^^mund i-n'Migli befurethe court, 
mid I know the court uill look itito it, betbn; 
thi-y ipve jud<pucnt . 

'nii^ socuniT eKoeiition is this, Tliat it is not 
Mid in the Imdy ot tlie plea, that Fivdiacm is 
imp.idkml for this treasim ; but it comes in 
only ill the averment. Now, mv lord, as Ici 
that, we mubl purmie the iuipeacltmi-nl as it is 
iutlu.' Lords Jiiuruul. li is ftw Ircuwin t;tii(<- 
rally lh<-n>, iind it is said 1« he ' micundinn 
' InJi'U' et cniiHuriuiluiein parlianitviti,' whjrh 
IpM'stoall, and then- isareconlof It anions the 
recordH of inrllameiit, and Mr. .Attiiriiey liath 
ConfeHwd it by t1i(> demurror. 



* t>e« vol. 6, p. 13ro, of this CuUet:ti'» 



n. iSil-^PrMttHngi tggimtt [9gi 

And that this is the nme treason, we doara 
in &CI, which alao ia confened by the dcniw. 
rer; andyour lordship win He l^the reMi4i 
and fiirms of cntriea in padiamaitjtinti nn 
not repeat things orer and over agun) Qiat Ai 
is the course aoJd method of parliaAKDla. 

Mr. Attom^ hath ftncied an exccptian tl 
grammar, an adjectire (br « rabslauthe ; b^l 
take it to be aa wdl u any man can field p 
tbii case. For what aa)-i the ptiaoDerf Tfci 
knights, citiicn*, and burgMsei in pnriiiBfa 
asicmliled, did impcadi DM', wliidl tuiiiiaj^ 
ment is still in force before the Lordi, Ifii 
ittobcasploiuas can be. it they did iiOMld 
me, then there waa an impeachment ; it cM 
benr no otiier sense. ^ 

My lord, anotliCT exception, and whicli vw 
thotiglit a strong oiie the otherday, and Mna|> 
ly uTgid, is, that the kin^may ctiuaeUiemt 
and tliey companat it with the other aOMlfi 
But there ii the mistake diat run aU tlMfp 
tliis case. It is no doubt, tlie king mty (kM 
his court fur his otni action and •nit; te.Ai 
unpeachment in an impeaehment at tba Om- 
moiu, and thdr suit is to be tiiedaowbMdbi 
but •□ narliament. And the caae Ibat nf 
other flay cited br Mr. Attorney, for tUa f^ 
pose, is true of the peiaon that waa amlBid 
for treason, and bath been indicted anf w 
raicned in Irdand, and he may be ani^iil 
and tried hers, there ia no queation <^ltit$ 
to say, then^fore, that this ia a conaa^M^i 
from that rule, that therelbre he wiB lHu 
whether Iw will proceed in parliament apn Ai 
Cuminiina impeachment, and put a atop IB tl 
proceeding of the parliament, by ptoeatdhl 
in this court, 1 tidtc to he a gi«at aon nft'ilaF' 

Sly lord, I hare olfered these renagnB,H M 
llic torm of the plea to maintain it. Now M.li 
the precedenU, I would a little speak what W 
been dine in tlic like case, where tbii ^i^ 
halli taken hold of cau.'tcs, and (be pmaccriiH 
of tlie court hath been stopped by ptau la 4i 
jurisdictiiin, and what hath been done 1^ 
those pli«e. What doom they have bad, I ■! 
Iiiut some of Uieni toyou. 

There was a case mentioned by your )atMl| 
the (itlitT day, the Inshop of Wint htster^Mi 
3 Ud.:l. 1 dure nut say 1 have looked upon ■< 
I'arliumcnt-ltoU; but inylunl Ciiketelu M^h 
lialh itTJUil (lie rec<ird, ■ de verbo in lerboK: 
In the 3il Institute, fol. 15. th<>n- Are allai 

Cmcreding<i. It was not an indictment, llrffllj 
inl Coko contradicts that, and says, it <n^- 
dcclatution ; Tliere the record at latga gf 
forth, that the lushnp of Winchester waiil 
tachcd to answer the king ; fur tlial nlwn^ 
aia p:uliami'iit held at Sanim, it waaonlaiMi' 
' (wr iiisuin Itegera nc quis hcI Uom. PtdBl 
■ mi'nt. Muumonitas ab eodeiti veccilrrM Mm C 
' ctnlia Hi'[;>B.' And tliat t)''^' biohop, ia<^ 
tpm]it of the king, recistiit, wiihuiit leaieof $ 
king. I tliink,it is rather an action tbu) a a 
minal nrocccdiog : What i 

this f He comes, and Mya, __ ^ 

' erga Dcniinum Htatm in PariiaatcntoM 
' in ParliaiiKuto dmtcanigi etM 



quia dAMi 
iaatcntoaM 
etamendHC - 



^J STATE TRIALS, 33 Chablbs II. \€sl,^Edwari FtiiAmrit, [29* 



* Doa dihi in minore Curift quam in Parliamen* 
'to,' Sec. What becomes of this pleaP It is 
there should be such an inhibition, that 
should -depart without leave of the king 
bishop be punished for it ; we do not 
ind my judgment was ffiven, nor would thev 
nanoe to do it. My lord Coke hatli a mailc 
vpsojl ; for this reiy reason, it looked as if there 
Mi a designi to weaken the parliaments, by 
Imnng'theur proceedings into Westminster- 
tal, nt they muld not <fo it ; they would give 
ipj u j gui cpt fiir the king; but fur aught ap- 
foos* the plea stood. 

Then there is the other case of Mr. Plowden, 
m^ many mwe in primo et secundo Phil, et 
Mw. mere a great many of them, some 
vftcfeof were bureeases, and they submitted, 
lilt he did noC "Ae information there is this, 
Aal theK persons were sammoned to the par- 
fiuMBL and departed from thence without the 
hm of the Idng and queen, though it was pro- 
liicd by them that any shouhl depart : Most 
(d theBmbmit to a fine ; and if it nad rested 
tktnt it nugfat have turned to the prejudice of 
fte Commons as an example. 
' Bal Hr. Plowden, he pleads as one that un- 
Inlood himsdf, and the power of parliaments, 
md theSr proceedings very well, and considers 
. A» time to have pleaded m : Sa^-s he, I con- 
fined in the parliament from the beginning to 
|he end of the paiiiament ; but he relies nut 
; but he brings a traverse full of preg- 
• and if our plea be faulty, theirs was an 
Bd times as faulty, abigue hoc^ That he, 
.fiaMd ^Edmund Plowden, the said day and 
jmwmpji die inuil parliament, without uoeuce 
4t Iha audJdngand qiieen, and the court atbre- 
jiii M I ■■III inptuously depart in contempt of 
fliafMkktf and queen, and their command- 
awi hI iraibition, and to the great detriment 
. if jkemunon-weal and state of this kingdom, 

^.^Ifteie things he pleads, wliich your lord- 
ftanritobeaveryilltmverse; andyettJiis 
.OKfldatimied all the time of that queen, and 
.||ie€M>t would never givejudgment in it This 
«■■ fk primo et secnndo ; and yet it appear- 
fiig«|Oii iheface of the information, that it 
ima ease thftt omcemed'the Commons, the 
.flimtirouldiiot givejudgment for or against 
^'''^- '"^ aaiMigas the lung and queen 






t^ere ia alalar case, and that is Elliot's case 
tCir^ '^nwreis an information against my 
Ifnl Hiilfia» nr John EOkity and many more; 
ipl ana ia a plea put m to the jurisdiction of 
; I have a copy of my k>rd Hollis's 
ilis in a manner as faulty as Plow- 
^ but thecourt m that case does not 
pivpon flie insofficiency of the plea, but jfives 
jMBMBtgeneraOty that this court had a juris- 
metmi^ the amauK happened in parliament, 
aai the words '.were spcuCen there ; and upon 
Kdemurror, tiiey gave judgment upon the 
wUa' nutfter. What becanae of that judg- 
Mtf .We haow very well it was reversed, 19 

**^ See YoL 3, p. 394| of this Collection. 



of this king. And pray observe the proceed- 
ings in the reversal uf "that judgment. Jiidf 
ment was given against niy iorffllollis and the 
rest of the gentlemen ofthe House of Com- 
mons, though there was no prosjicct of a par- 
liament, yet they were obstinate, and wuiikl not 
plead ; tor they thought the judgement to be a 
very hard jndjnnent ; and this being a plua in 
abatement, judgment was given for want uf a 
plea over. It may i'all out in this case, that 
this person may be obstinate, and not plead 
over, if you should give your judgment against 
this plea. In Elliot's case they were finerf se- 
verely, and they continued undfer this judgment 
in pnson, and in execution for the fine a great 
while ; and they were delivered by what 1 can- 
not indeed justify in all it*s proceedings, 1 mean 
the lonff-parlianient ; but what was donci in 19 
of this Icing, I tliink 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 tne Commons examined this 
Judgment, I speak because 1 luivc it in my 
printed book ; it is in Croke Car. I confess, it 
IS not in the first impression ; but it is in the ae- 
conil edition, which I have, and these are the 
expresidonsinit 

£. C. /. What case is that ? 

Mr. Wiliiams, It is in Croke Car. 181, 604, 
but the reversal u'as in 19 of this king. 

L^C, J. Was the judgment given, do you 
say, 19 of this kini^r Can a case of that time 
be reported in Croke ? 

Mr. Wiliianu. I do not say so absurd a thing 
If your lordship will have patience to hear me, 
I will tell you what I say. My book, which 
ia the 2d impression of Croke, reflecting upon 
that case in 5 CaroU, does publish the Votes of 
the House of Commons about, and the reversal 
of the Judgment, in the 19th of* this kin^« 
There the proceeding is this ; Information is 
given to the House of Commons, that there 
was such a case publisheil, which did derogate 
much from the privilege of parliament, invad- 
ing the liberty of speech ; and the House of 
Commons considering the conseouence, or- 
dered the book to be sent for and read, and 
taken into consideration and debated ; and upon 
dc^te, the House came to this resolution. 
That the judgment against Elliot and others is 
an illegal judgment, and against the freedom 
and liberty of speech : and this Vote they send 
up to the Lords, where it is confiriiied and 
resolved in agreement with the Vote of the 
Commons : and by the way, in answer to a 
l>aper that is commonly spn-ad about by the 
name of *' TlieObservator ;" 1 say, the Com- 
mons came 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, anddesire 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 
CoBUBons. Aflim-ardSy upon thii tesoliitm 



yon will nroocctl no furtlior ou'thc indictment. 

i. C J. Pray, j^ftMUhinien, \vt us a lillle 
direct you not to spend our time al>out that 
ivLicbls not to the pur|)ose, or thut is not in the 
case : here is uotliiug- of the Commons ri^ht 
to impencli in parliaincMit before us, nnr of tlic 
Lords jurLsiiict ion, nor the methods of narliu- 
mcntin this case : they aret1iini;s quite torei^n 
to the ease and the matter in hancl ; which is, 
%i'bcther this plea, as thus pleaded, l»e suiH- 
cient to protect the prisoner from )>ein^ ques- 
tioned in tills Court, ff>r the treasonable matter 
in the indictment before us. Therefore yon 
oug^t not to spend time in thinpj that a^e^^ot 
before us to be cousidenwl, iM-iiij,'' out of the 
case ; for we have nnthiii:^ to do with any pri- 
vilege of parliament, or of either of the Houses 
bere at this time. 

jiustice Jones. And, {|ifentlemen, there is no- 
thing at 9II here of any tact done in parliament 
|bat can be insisted on here ; nor is there any 
DOmpUunt agaiiuit 3Ir. Fitzbaiiis for any thing 



■ • 

^95} STATE TRIALS, 53 Charles IL l6S\,F^Pr^€eedingi ggdmi [^96 

of both Houses, they go r^fularly to work, by 
Writ of Error to reverse the judgment. And 
jf it should fall out in this ease, that your lord- 
ship should give judgment against the plea, 
And this |>erson should be obstinate, and not 
plead over, and thereupon your lonlship give 
judgment of death upon him ; it may come 
to&SL very hard case, if a Writ of Error should 
be brought in parliament, to rei'crse this judg- 
ment ; and it should be reversed when tlie party 
is dead. ' Therefore it will be of great conse- 
quence in this particular. 

My lord, 1 will mind you of one old case, it 
tFas 20 Itic. 2. A person [Thomas Hacksey] 
there presents a jietition to the Commons in 
parliament ; and it seems there was somctliing 
8iigp»(ted in the Peticion, wliich did amount to 
high-treason, as there may be some petition or 
some complaint a*^ainst 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 paraoned : but 
because the Commons would not lie under that 
precedent of an invasion of their privilege, 
though he was a person without doors tliat pre- 
pared that ])etition, and no more hurt done to 
liim biit tlie prosecution, he being pardoned, the 
judgment was voided. 

JL C'J' WTiere is that authoritv ? 

Mr. Williams. 20 Uic. 2, Ko. l^ari. 12. And 
you will find it in the argument of Sr'lden's 
ease, nublished in Rushworth's Collections, 
Apucntux to vol. 1, fol. 47, and 48. 

And now, my lonl, 1 liave 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 
riglit of the Commons to im|>each in parlia- 
ment, before you ; here is the judicature of the 
Lords to determine that inipi'schment, before 
you ; here are the method and procecdinaf of 
Darliament before you ; and how far you will 
lay your hands upon tliis ease, thus eircum- 
l^mtiattfl, wv must submit to yon : but I hopt; 



he hath done in parliament. All Mr. 
precedents run to that ; but this is fbr a thiig 
done without doors. 

L. C. J. We speak to yon to come to the 
point, whi(^h is the duty of all Courts to ksep 
counsel to the points l>elbre them. The sole 
matter before us is, whether this he a good plea 
to ouste tliis Court of a juriadiction, which 
-otherwise unqucstiotiably we have of Ail 
matter ? 

Mr. Williams, It is a hard matter for iIk 
bar to ans^ver the bench, my lord. 

Sir Fr. Winnington, My lord, I shall puii 
your direction as well as my uuderstandinff 
will give me leave, and save your time as mocS 
as 1 can ; but the Court having asaigned naif 
counsel, you will give us leave to use our dii- 
cretion, keeping as near as we can to tfaepoiato 
of the case, and to the pleaduig. Butifufii 
tlie reasoning of this case, other parUamoM* 
cases fall in, I hope you will give uie leneH 
cite them for maintaining ourpka. Tlie phi 
here is to the jurisdiction, and conaita of .tav 
parts. First, matter of record, which ia, Ihrt 
an impeachment is depending in the Howaaf 
Lords (for so it must oe taken upon the pleat- 
ing, as I shall manifestly prove :) theaeoondh 
matter in pais (viz.) the averment, that the ia- 
peachment anu indictment are for one and Ikt 
same treason : and the plea is made np of tfam 
two parts, togetlier with an averment that iIn 
person is the same. The king's 
hath been pleased to demur generally la 
and I am sure that if our plea be wdi 
mally pleaded, all the matter of lict ia 
fessed by the demurrer. 

Mr. Attorney did, to my appreliension, 
but one objection the other day, and he 
sists u))on it, that here is a record too 
pleaded, antl they compare it to tiie 
case of an *■ auter ibitz acquit, upon 
indietnieut ; but I hope to luaikc it evidendy 
appear, that it is in no soi*t a parallel case. Tte 
matUT which I conceive is confessed by IIn 
demurrer, is, that there is an impeachment ly 
the Commons of England or high-tieaiai 
against Fitzhan-is lodged in the House of Lor^ 
*■ secundum legem et consuetudinem pariii- 
' menti f and that the treason for which he 
was im|>eached, is the same treason containei 
in the indictment, to wliich the prisoner httk 
now ]deade<i Upon this matter of iiirt, m 
agreed, the general (piestion is. 

Whether an ini|ieachinent for treason, hf 
the House of Commons, and still dcpcndoigy 
i>e a sufficient matter to ousle the Court finMi 
procec-din^ upon an indict meut for the aamv 
otienec. My method will be shortly ta speds 
to thc*se things. 

JL. C. J. I'ray let us give you soraedireetka J 
that is not the question, nor can come inquealiBa 
ill the ease : you mistake the points of the caab 

Sir Fr. Wmnin^ton. Why, my lord? 

Is. C. J. The question is,* whether you haitf 
pleaded sufficient matter liere to ouste us of oa> 
jurisdiction P it is to no purpose to put QiMi* 
lions in the case, that are notui it 



197] 



STATE THIALS, 33 Cbaelm II. 1681.— Erfword fttsharrit. 



[29» 



tbernore may rtry Hell Lear an interruption ; 
lowtTCT 1 expmn my«cJr, m; iiieBiiin^ is 
flu nine with jour iunlshiii's. Tlic method 
thit I *h«ll fioLvri in, will be this; I will 
nfpne the case beArv ynu had been ofon 
■^mrlimpfit, containing' the specinl treason 
ftr which he is now indicted. 1 will shew in 
tht a?n place, that as it is now pleatled, it is as 
iTulahlc hm if the impeachment in the House ot' 
lynla haJ ntciilioned the particular treason. 1 
ibilltheogivraoineTeiSQua why it is sn, and 
meblioo one ortwD precedents that have not 
yAheen nirtl. Two of llie king's comtae! iliil 
■pM, that they ivoiild not niHke a doubt of 
Ite irira, it' llicre had been n piirticiiliir liu- 
pndmwiit'; and tiierctbre I would, by coii- 
Hderii^ what would be ibe reason of tliat case, 
•nly it urticulariy to tbe presort case. TIip 
Howe n LanJM in a suueriur court to this : and 
agreed tube the liig^em court ol' record in 
the kingdom, PUmclen 389. Co. Lit. 109, 1 10. 
»Co. in PnefiU. And then I am withiu Uie 
coBDMii rale of pleadinif, accordinir to the dit- 
faateea takctt in HpaHe's t'ase 5 (Jo. CI, and 
U. That* suit fint commenced in an iufeiior 
court caiinot nop a suit in a superior court, 
tWavfa nriiaequent ; but a suit in a superior cuurt 
aajhe pleaded, to slop tlie proceedm<r<i of one 
Am it inferior. And though it may hi- f>i>JH.ted 
here, ihatthepuliamtnit is determined and ilis- 
■hcd, and ao there would be a tiulure otjuitice ; 
Jrt Ihii objection b of no tbrce ; for if once the 
Hit be wtill commenced in the superior court 
it eunot aAer go down to the inferior. And 
vkat is begun in one jiarliainent may be deter- 
IMni in another ; au is the cose 4 Edirard 3. 
■.It. rfthe lord Berkele^', and those that were 
*n«Mi for tbe death of Edivard 3.* And 
tiMwfc itwa« objected there, as hath been here, 
ttiifydiiBincBtis there might be a stop ofjus- 
liBe,l^thp diasolmionof the iiarlianient ; yet 
tbe short and tnie answer is, Tliat it is in law 
ined, parliaments will be ctdled fre- 

nsider of the liuwiess of the kin:;. 

■et» ^eranijeH, according' to tiie 

i«eral StiAitrs made for that purpose, 4 £d. 

"' ' 1 ghall labour 



3. cap. 14. 36 Ed. 3. cap. 1 
ftii BO ftrthrr *, tral. laliViH] 



■•, Sm. lalimR 

nle uf plGoiliii;^, Ihal a record in n auiiuriar 
cimrt may bo pleaded to !>ti>p a proceeding in 
in inferior ; 1 shall conic to prove thut this re- 
onrd is wetl pleaded, and rnuld not he ctlterwisc, 
vAesm Mr. AWomPy would hnvc had us pleail 
♦twl h tnlw?, •'■■- """ — ■' "- "'" 




that we hare pleaded welltliathewaiimpead- 
ed of (reason. It is very true, my k>rd, if » 
man ^till plead generally that he was indicted 
of High -Treason, it would be ill ; because the 
court cannot take it otlierttiKe than he pleaded 
it ; and aach a general indictment woukl be al- 
tdgetlier void, and thereliirti no averment could 
nuike it gowl) or suppi} that generality and un- 
certainty. 

But an impeachment generally fur treason 
is good and wanunted by tin- law and course of 
parliament, and so coiiletiseil by the demurrer. 
And so yourturdiihipuill take it to bi.!,and will 
give credit, tliat all is rt^larinthe pniceed- 
jngsoflltnt high court. Vou will presume, 
eveu in tbe ecclesiasticiJ courts (iis iiiy lord 
Cc^e says in the 4lh re|Hirt) ihnt all iluiig« are 
riglitJy done, uhcn tiiey have a Juriiidiclion ; 
ijarlKitj you wilt believe the greatest court 
ju tbe kingdom does proceed regularly. Mj 
lord Coke m tlie 4th inst. tbl. 14, and 15, doe* 
say, what the law and coiirseof jiarliouicut is, 
lliejudifes will never inlcniicdille wilh. They 
always li-at-e it to the pariiaineni, who are the 
to determine tlie mat- 
they take iioliee, that 



superior judffes, a 
ters before tliem. 



thcc< 



IK the 



Ufa 



agenetal 



Lane's case in the 2d rcjiui 

the 'Eixclieiiuer. And tliert4bre, it 
impeachment is ' aecundum legem 
tudinem,' which U confessed by the demurrer 
iu this esse, then you must take it for granted 
that the parliament proceed lightly, and tliM 
Kiich a general impeachment is sufGcieut in 
law. lliere i<t a famous caM iliat strengthen! 
wliat I «ar, 11 Ric. ». di. Rot. Pari. par. S. 
the case ofthe Lords appellants. You wdl find 
It also cited in Itiish worth's Col. part 1. in the 
appendix, t(>l. SI. Treaiiian and others were ap- 
licaleil against .lbrtr«ison, and both the judges 
of the common and of die citil law were by di- 
rection of the king called to advise of that inal- 
tcr. Anil they did all declare, tliat the pro- 
cecdiugs in that case were ndlher agreeabk 
to common law, nor civU law. But the Lurdi 
in parliament said, it did not belong to the 
judges of the common law or civil law to guide 
them ; but that they ought to proceed accord- 
ing to Ibe course and law uf isuliamenta (which 
are the words of our plea), and that llier«tbre 
no opinion of theirs should oustelbem of their 
jurisdiction, or alter the course and method ol' 
their iiriK'CtHliiig. ftiv lord, this case is very 
rcmarlialJe ; but I will go a bltle farther : the 
judges in all agt's have been so Ikr from taking 
u[Hinthem lujudgeof the laws and customs of 
pui'liaiiient, lliat tliey have denierl to annrer 
w!K>n their advice has been demanded, and in- 
siste^l upiiu it, that ttiey were not properjudaiN 
ot' su<li matters, as in SI Hen. 6. Rot. Par. n. 
96. For there, among other things, the judges 
ncrc demanded, whether tbe frljieaker ofthe 
Bouse, during the adjournment of parliamoit, 
might be amuted : tliey desired to be eiciued 
froui giving any epinion : for, said they, in thw 

" - 'Iiev ought B - ■ " 

oipadiameit 



Eiingani 



499] STATE T(11ALS» 3S Charles II. l6s\.^ Proceedings againH [30C 



In tbc great coiiiicil primo et lecundo Ja- 
^obi, ■bout the union or both kingdoms, the 
Indgiet refused to give their opinions upon seve- 
nl questions put to them ; desiring to be ex- 
cused, for that such things did not bdong to 
them, but were matters fit tor parliament only. 
My meaning is, to infer irom hence, that since 
it u pleadednere to be according to die law and 
course of parliaments, and Mr. Attorney hath 
acknowledged it, that now your lonhhip is 
feredosed from further meddling with this case, 
k appearing upon record to be a matter where- 
of yon cannot jud<]^. 

But the olyection is, that admit th«^ imprnch- 
ment should be taken to be according to the 
course of pariiaracnt, yet it is ho gi-neral, that 
the court cannot judge upon it : I answer, that 
h is evident the uupeachment Avas not for no- 
thing; it ismostccrtainlv to be prcsiuned, ti^at 
■uch a body of men as tfie House of Commons 
would not impeach a man for no crime. Fitz- 
harris avers by his plea, that it was for the 
nme treason, for wnich the jury have found 
this bill against him. Now tfiis averment 
makes the nuitter as dear to tiie court, as if the 
impeachment had mentbued the particular 
treison. 

Every day*s experience shews, that aver- 
ments, whicii are consistent with the record, 
■re good, and are of necessity to clear the fact 
to the court ; so that the judges may give a 
judgment upon it. if the defendant \vill plead 
a recovery i*i a formal action, in bar to an ac- 
tkm of debt, or other action ; it is not enough 
for him to set out the record ; he must aver 
also, tliat the causes ot'the action are the same, 
and that it is the same person who is mentioned 
m one reooni, and in t!ie other records ; and 
this shews, that the most special and particular 
are of no use without avermeiiLs. 

My k>rd, there is a case tliat I find directly 
to tius purpose, which goes further than the 
case 1 diil but now put, and that is, 26 Aasiz. PI. 
15. It is also mentioned in Stamf. Pla. Cor. 
105, where a man was indicted for the mnnler 
of J. S. and ho pleads a record of acquittal, 
where he was in({icit;d for tli<> murder ot J. N. 
But he avers, that J. 8. in this indictment, is 
the same person with J. N. in tlie other indict- 
ment ; and that was adjudged a goo<I plea, and 
the party was acquitted, though the averment 
there seemed to be a contradiction to the re- 
cord. This makes it clear, that if an averment 
may consist with the record, the law will allow 
it In Mora's Rep. 823, V\, in«2, the king 
against Howard, it is said, that if an act of par- 
liament be certified into Chancer^', no aver- 
ment Kes to say this is no act of (Niriiamcnt, be- 
cause the Coniimons did not asM'nt to it ; but if 
h appears in the body of thr act, that the Com- 
mons did not assent, as if it was ordained by 
the king and I^orrls, and without mentioning 
any assent of the C'ommons : tiierc it may be 
am red to be no act ; for this beinn^ a matter 
aonsiBteDt with the record, is averrablc • : And so 
it m agreed in 33 U. 6, fol. la, Pilkiuton's 



Now Mr. Attorney has his election here (si 
it is in all such cases) eitlier to plead nuU. tieL 
Record, and then ue must have produced k j 
and if we had f iiiled, it had been agmimt ni, ai 
to the whoic nlua. Or if he wouM not deny tbc 
record (as indeed he could not) be might navi 
taken issue upon our averment, that it was no( 
for one and the same offence ; but he has de< 
miu-rcd, and thereby confessed there b audi a 
ret^ord, and confessed the averment to be tmi^ 
that lie was impeached for the same crime, and 
that ho is the saiae person. And now it is pUi 
to yoiir lordship, tliat I stated the question right 
at first. 

My lord, I shall dte you one precedent Oil 
of Hast. £nt. fol. 384 and 385, where a mai 
was indicted and acquitted bdiire certain jnt- 
tices, and being indicted de maro 

£. C. /. it is title Gaol-ddivery, is it not f 

Sir F. Win. Yes, my lord, it is. And hi 
pleads that he was indicted * coram aliia juli- 

* ciariis,' for the same fokmy, and upon tUi 
plea the entry is made, * Quia testatum cat hw 

* in cur. iii proefatos justiciarioa,' that tho mii 
party was acquitted of the felony, in niaaMl 
and form, as he had alledged in his pkai 
Therefore it is adjudged, that he shouU be dh- 
charged, and go without delay. Myknlpldi 
not altogether rdy upon this precedent ftr lav j 
but 1 find it in tliat book. 

Now, m Y kird, I sluJl ofier some reaaoM ■ 
general. First, that when once the Cora 
m parliament, in the name of themselves, 
of all the Connnons of Enghnd, have ~ 
an impeachment against any man, it « 

nic against natural justice, that ever any < 

nioners should afterwards come to try or jiaifp 
that man for that fact. I speak this, beoanaa 
every man in England that is a conmioner, a a 
\mrty to the accusation ; and so we have pkai* 
ed by such an imiteachment, a man is sulyeclqi 
to another sort of trial: Magna Charta 8ay% 
That every man shall be tried by his peen^ tr 
by the law of the land. And by the law of the 
land, there are several sorts ot trial, soma by 
juries, others not by juries. This is one if 
those sorts where the trial is by the Inr 
of tlie land, but not by his peers : for it 
would be hard that any man should < 
to try or give judgment upon a person 

hath been his accuser before; and in i 

hath ali-eady given his judgment that be ii 
guilty, by the aircusation of him, and so aiaa^ 
not inditferent. Hy this means the trid ly 
jury is gone ; and the Lords, who are the pan 
of tlie nidm, aiv juilges in point of fact, as sfi 
as law. Here is an enormous offence, agaiail 
which all the nation cries, for so they do ui lb 
impeachment . Then, says the kiw, it is not ll 
that you should try hiin, who are paitiea : lit 
the Lonls arc the proper judges, they shal I9 
him per tttte$^ and the commoners may oa|pi 
in as witnesses, but not as juilges. 

My lord, another reason is this, that if fli 
appeal of deatli, or any other apn^ were dl^ 
pending before the statute of 3 xl. 7. caf..l« 
the king could not proceed upon fif *— '^--'^ 



SOI] STATE TRI.\I5, Z3 Char les II. l68l,^Edirard FUzkarris. 



[302 



for the fame fiict ; bemuse the Vw.ff^ as the 
common parfrnt, does only take care that sucli 
tifwiera should not go away with impunity ; 
hot the preference was {pvcn to the i»enon 
BOTp particularly cnnccnieil, nnd tlir kinif\s in- 
didineot must stay ti!I the year and day were 
«it, to see whether they wdl |irocce«l in their 
nils. And so sa\'s my lord chiet justice Hales, 
ia hk Pleas of die Crown, 94, 42, 45. Then 
( a minori ad majns,' does the law so rc^rd the 
intereft cit* the wife or the heir, Sec. \n their 
soh, and has h no regard to the snit of all the 
Coannons of England ? For manifestly, an 
impeachment is the suit of die people, and not 
the knig^s suit. 

ITiat is the 2d reason ; another reason I shall 
■qpR, is that which was touched by Mr. Wil- 
iama. Sappose this man should l»e tried here, 
ind be acquittetl ; is it to be presumed that he 
an plead this acquittal in bar to tlie impeach - 
■ent before the Lords ? M^v lord, 1 belie\-u 
there is no consiilerin;^ man in England, that 
Ibb regard either to the jurisdiction of pariia- 
ant, or to the nature of the suh, will affirm, 
tfHt it wmiM be a good nlea ; and that hecouhl 
hv the great Court of the kingtlom from pro- 
eeediiv against him, by sayin<; he was ac- 
fB^Baby a jury in Westminster- Hnil, after the 
mit was first well commenced in that Court. 

Hy lord, I say, with reverence to the Court, 
tbatriMuM you pmreeil in this trial, it mnv fall 
out, that contrary to a fundamental nile or law, 
a man shall be twi<re put in dancrer of Iiis life 
fin- one oflence, which by the law he cannot 
be ; and therefore I urge that as a rens(»n, 
^dif ytm cannot proceed liero on this indict- 



My lord, I will now mention two or three 
f fi fflwil a, which will pro\'c that this im- 
peachaatt ia arcordin«; to the course and law 
sTpufiunents, thoutrh it may seem needless, 
after the kiug's learned counsel liavc agreetl 
la it 

Hy lord, I shall first mention the case of 
Michad de la Poide, Rut. Par. 18 or '^8 II. 6, 
n. 18. He was a Tcrv great man, nnd came 
to the House of I^rtrcfs voluntarily, and said, 
there was a rumour that he was guilty of hor- 
riUetlmiQS. 

L, C. J. T^liere did you take this case, out 
of Cotton ? It IS mentioned thci'e ; but I have 
leea a copv of the roll. 

Sr fV. l^inningion. Yes, my lord : there- 
vpon the Commons pray he may be committed 
^Ktt his own confession ; and that the thing 
lieiag debated in the I1uil(«, the Lords said, 
We Know not what was meant by those words, 
' hornUe things ;' it may im|K>rl only niisile- 
neuMTs: if it had bcen*^»ud treason, we had 
bown how to hare proceeded thereupon : and 
thereupon within a few days af^er, the Com • 
nMQs came and accused liifn of treason. And 
there it is said, tliat the course of parliament is 
to find out the truth by circumstances, and such 
kernes as the nature of the thin^ wiU bear, 
•nil they are not oontmed to the strict rules of 
fthcrCooitit 1*11111 not ^ite any more aotient 



casciL, though there are many to be found of 
g^eneml impeachments : for we are not disput- 
ing what is the ri^ht and course of hnpeach- 
mcnts, which is oonlessed, upon the pleailing : 
hut we have had several cases of late ; the earl 
of Clarendon was ini(>each(.*d generally, and 
the Commons took time to bring in their arti* 
cles ; anil I have had the experience in three 
or four parliaments, wherein we have been 
pretty well busied with im|)eachments, though 
we have had no great success in them, that 
though the Commons muv, if they please, carry 
up particular artich>s at nrst ; yet the law and 
course is, for the Lords to receive the general 
impeachment, anil the Commons say, that iu 
due time tliey will bring in their articles. So 
it was done in the case of the live |>oi)i8h Lords ; 
some particular meml>er was ap|>omted to go 
up, and impeach them of high treason in ge- 
neral ; and m tliat case, though the (mrliaroent 
was dissolve<1 before any articles were sent up, 
yet afterwards, in the next ]mrliament, the arti- 
cles ufion the former impeachments were sent 
up, and received, and my lord Stafford since exe- 
cuted, upon his conviction upon that impeach* 
raent : 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 (lay to this, 
there hath been no attempt to try them upon 
their indictments, though there have been se* 
veral intervals of [larliainent. 

Our case is stronger tlian that of the Lords : 
for in the case at the bar, the first suit was in 
the House of l^nls by the C-onmions, whilst 
in the othei* case the f&st was tlie suit of the 
king, bv indictment ; and yet by a subsequent 
imiieachment that was stopped, and theJUords 
oontinne \ei prisoners in the Tower. ' Our 
time hath be(*n so short, that we could not see 
the copies of orders, which we might other- 
wise have made use of, for maintaining this 
plea: we sent to the House of Lords, but the 
otficcrs were out of town, and we could coma 
at the sight of nothing tliere. We have bee& 
told the opinion of the judges was delirered 
at council concerning these Tery Lords, that 
the impeachments being lodged in parliament, 
no other prosecution could be against them, tiH 
the prosecution of the Commons was deter- 
mineid. So far the Courts below have always 
been from meddlhi^j with tlie jurisdiction of par- 
liainent, that even many times in questuma 
upon acts of parliament, tliey have gone up to 
the parliament, to know what was meant by it. 
And I remember it was said by the Coort in 
tliat case of my lord of Shaftesbury, where it 
was agreed by all, that tlie commitment was 
too general, tor 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 parliaitient (at least while 
that parliament was continuing^ they ought not 
to meddle with it, nor could tney enquire into 
the formality of the warrant. 

My lord, I must mention one thing toachin^ 
the case of my lord HoBis, which wai-dlM 



303] STATE TRIALS, 33 Charles II. l6Si.^Proceedmga againU [3(V 

murrer. The third ^reat point and hinge apci 
which it tiims, is this, 'that the high tream 
mentioned in the indictment, and the higl 
tn?ason for which he was impeached in tn 
House of Lords, is one and the same treason 
This we have pkinly averred, and this Mr 
Attorney hath likewise by his demurrer plaiolj 
confesM-d, as we humbly conceive. 

For the two former points there n no £ffi. 
culty in them, and therefore I shall pasa dm 
over. It is the third matter which I take to k 
the only point in the case ; and if we bifii 
well averred it, and can by law be let into aocf 
an averment; then I ho|)e your kudsliip and 
this Court will not pretend to go on in ttt 
case. The^ object, and say, because he b iii. 
peached ot higli-tveason generally, wHhepI 
naming anv particular treason, that gmum* bi 
averred to be the same, and a demurrer difli 
never confess the truth of that wlilch by Im 
cannot be said ; but if it may be said, and ii 
said plainly, then the demurrer oonfeasan k. 

My lord, I humbly conceive thin nwHer k 
well averrable, and we have takoi njgood m|- 
ment. I grant that a repugnant ana no ■ 
sible averment cannot betaken, as to r 
horse to be a sheep, which is a|^»aientiy 
nant and impossible ; and in that caae a 

rer can never confess the truth of that 

anpcars impo^ble to be true. But, my M^ 
ir there be no impossibility, nor lepagnanqTi 
nor contradiction in the averment httwwmfm 
matters that are averred to be tiie same, m iWl 
is not between that which is but genendlT ci- 
presscd, and that which is more especiadj rf- 
ledged ; where all may well stand tagether, lod 
the one includi's the otner and needs only MM 
farther explanation ; it is not only allowihleii 
aver it, but most proiier, and in such case orijr 
necessary. For, < quod constat clare non ddkC 
verifiean,' in this case it is not necessary that it 
slKiiild appear to the court upon the vieirof tte 
indictment and impeachment, tliat the matlHr 
contained in both, is the same ; but it is M^ 
cicnt, that it be proveablc upon an issue ts It 
taken. And so much is admitted by the j 

in Sparry 's case Co. 5 Rep. 51. That if 

bo convenient certainty which may be put Ii 
issue, it is sufficient, and) conser|ueiitIy7 not ■•> 
cos-sary to ap|>ear at tlic first, but upon theevHl 
of the* issue ailerMards to be tried. And if iM 
intend it o(her\%'ise, 1 confess I undeifMl, 
tlicni not. It is tnic, it must appear to 4$ 
court, either at the first opening, or upon il ^ 
issue subse<iueiit t<i be found. And, my k«rt ^ 
this matter uiay appear at first or at last, m . 
the thinp^ is possiMe to be proved, then we ttl , 
well en«iu£rh. In Corbet and Bame*8 casL il. 
the first Cruke, fol. /i^O, a battery auppeaei Ii.: 
I>c in ]x)ndon, and u battery supposed to be fr < 
Hei*eionlsliIre, wrre averred to oe one and fc-J 
.same battery, which natunUly is iiiifiiBiillli 
yet iMiing transitor\% and therefore suppMHJ 
to be (lone in any clninty, such an av cimci illW 
allowable, though it seemed contradictonr. ^g^ 
could not aiipcar to the court by compamf fN 
se^ei-al dcdaraUons to be any yvvj ttw 90^^ 

3 



bjr Mr. ^^'illiams, and I have but a word to add : 
it is in the Appendix to the first part of Rush- 
worth's Coll. and also in C-roke, Car. fol. 181. 
It was there pleaded to the jurisdiction of this 
Court, tliat it was a matter dune in parlia- 
ment : in our case it is pleaded that an im- 
peachment is depending in parliament; that 
was but a prosecution for a misdemeanor, tliLs 
is a case of high -treason. It fell out in that 
f»se, tlie Court here did adjudge, tiiat the in- 
formation did lie ; but upon a Writ of Error it 
was agreed by tlic Lords unanimously, that 
the juugnient was erroneous, and that the par- 
ties should be restored to ull which they had 
lost, by reason of it : but if this man should 
Jose his life by your jutlfpncut, what help 
would there be" upon a "Writ of Error? Tlie 
danger of such a thint^ requires great consi- 
deration ; and it would be of fatal consequence, 
if the Lonlk should liereatler a(\)udgc that this 
Court had no jurisdiction. 

As for 3Ir. Attorney's objection to day, that 
we have not set forth acrtually, that there was 
any impeachment ; I do confess I was a littlb 
startled at it ; for the words of the plea are, 
That Edward Fitzharris, by the kui^ts, citi- 
seiis and bui^esses, was luiuoached ; which 
impeachment is in force. I uo not know how 
in the world we coidd have thought of more 
cx|Mre8s words, tlian to say, he was impeached ; 
and that that iin|)oachment is in full force, as 
appeal's by the record. 

For the otlier objection, the otlier day (for 
we would mention all, how little soever they 
desene an answer) that the king may chuse 
in what Court he will sue ; it is agreeci, when 
it is at his own suit : but tliis is not •so, but at 
the Commons suit, and can be no where else 
|>i*osecuted, tinm uhei*e it now de|>ends. This 
IS the method and course of parliaments we 
say ; and that the iuetho<l and coiirse of par- 
liaments is the law of the land, your lordship 
will take notice that it is so. 

To conclude, as this )dca now stands, the 
demurrer conrt*sviii«^ the luatter of it, it cannot 
be over-ruled, without deriding whether the 
Lords ran proceed upon such ^fcneral im))each- 
mcnts, and whether the Coiiuuons can iiniieach 
in such a general way. We submit the whole 
to your judgment : it is a case deserves great 
consideration, as being of great weight and 
moment ; and highly concerns the juvisdiction 
of the Lords, the pnvilcges of the Coumions, 
and the rights of all the |ieople of England. 

Mr. Wallop, May it please your loitlship, 
there are in this plea three principal parts upon 
which it turns, which are exprtssly alledgvd. 
First, that Fit/ha rris In^foi-e the indirtmont >« as 
accortling to the law and custom of parlia- 
ment impeached of lii^^h-livason, and this I 
hviiibly conceive is crniffssrd by IVlr. Attorney 
upon the demurrer. The si cond thing is, thai 
this iinpea«.'hinent, Ik.* it as it will, gcnci'al or 
particular, does remain in full force and virtue. 
This ispluiidy alledgcd and iienuirrcvl to, and so 
confessed byAlr. Attorney; for all things weU 

«||8dfcd and plcadvd, ar« c^^^v^'^ed by the d<i- 



30o] 



STATE TRIALS, 33 Charles II. iGSl^-^Edward Fitzharrts. 



[30( 




And there bciii|r a demurrer for that cause in 
that rase, the truth of the averment was ruled 
to be cunteisad by the demurrer, and so htrro 
l|¥ the iJeinurrer, the truth uf the sugi^stion, 
that the treaiJiHi in Uie ini|)cadiment, and the 
treaann in the indictiuent, u one and the same, 
is conltfssied. 

%j taking this aTerment, ire offer tliem here 

a lair isaiM, an iasue of fact triable by a jury, 

whrrein the attorney-general might har« joined 

vilb ui, if he bad pissed ; but refusing thai, 

ndhaTinj; demurred, and thereby cunftrssed 

vhtt we hare aUedged, it must be taken to lie 

iiw,tt tf found by a jury. And, uiy lord, 

Ikilbis OMiter 18 iiroperly averrable and tria- 

Mi^ I diink it is plain ; it being a question of 

ht% whidi is uroperl]^ triable by the coimtry : 

Aad if they had taken issue upon that, we might 

bate cone to a jury, where the matter would 

ba»t Wm easily proved. For upou evidence 

the jary might fairiy take mto considc- 

the reading of this very numerical libel 

ia the indictment, and the particular 

debate of the House of Commons 

And that upon those very debates 

▼otcd tiwt Fitzharris should be im- 

fhr matters contained in tliat libel. 

C npon dioae votes the impeachment 

' id np to the Lords. This is cvidf iice 

tlMiC the House of Commons did in- 

«iiae him of the same treason con- 

the indictment; which proves the 

that the treason contained in the 

is the same with that contained 

Neither is this to put the 

of the mind, or secret ihomrlits of 

in issue, which is against the 

if law: but to put them into a 

arf pniofy which well stands with the 
if hw, which upon the general, or 
iikr crihcteral isaue, may well tc enquireil 
if ijf Ifae jury . As in an action, * ^uare cancm, 
'MrdMein ^pfendens scienter retinuit.' Hitc 
^mmmt^ is not direi;tly isKuable, but it is prov- 
41b. ibI anist he provecl upon the general issue. 
% m the preaent cane, the intention of the 
Cbaaioaa upon the issue offered by us, and 
Jlihsed by rae attorney general, might, and 
^ghly and wmiM have lieen proved ; and witli- 
OttdMdM, tmmd by the jury. Neither is this 
§M«al iiupc ac h ment socli a national thing as 
w other aide would pretend ; but it is as if 
ihould aav, wa do charge him to have 
certain crimes tliat are treason. Now 
die crimes they say he had oominitted, 
lor which they unneached liiin, are the 
iHdi those for 'whicli he Ls indicted, is a 
|Md and pfoper u«ime. And if it appears to 
*^—^ to Be the same, you will certainly 
ce off your hamLn from those pm- 
This is all I «ihall ^^ny as to the aver- 
X Aad if w<* can wc^ll get over tluit, I take 
\the leit ia wdl enough, 
ttafnin, they aay, the lm|ieachmcnt is too 
■I, and no man shall be put to answer to 
a g e a e nl accusation. 
■rid 1 mj 10 IM, neither ihsU Fitzharris be 
yi#u VIII. 





Kut to answer to it without .^ijiecial ailicles ; yei 
e cannot quash I lie hHjM.'iu^hnicnt tcr tlii« 
cause, as he might the ihilictuient ; whic); 
shf'Ws the diflcTcncc Ix-twixt au impcachmenl 
anil an indii^meut, which always contains the 
special matter, and without which it might lie 
quashed and ntade no n^ronl. But lierc by the 
law of parliament siicli i^end'al im|)cachiiient« 
aie held good ; and articles are usually brought 
in afterwards, and after thosi? additional articlni; 
whit;h cannot be in the coiirne and way of 
intlidmeut ; and therefore wc must take' the 
impeachment as hc fnid it ; and since it standi 
against us as a record, though it is general, wt- 
may, and must pleail it in the same gtiu'ralily ; 
having no way to make it onrecord,"as w ^ ha\i' 
in case of such a general indictment. 

8o then this being' an impeachment accord- 
ing to tlic course of pariiament ; it is well loilgrtl 
in the House of Lords, wherc^ it only onght to 
be tried, and we must plead it as wc may, and 
as we find the case to be. And having averred 
the crimes to lie the same, we have dime what 
we could, and thcxiorc onou'jrh. 

And that a gonend luijH'aciinii'nt without ar- 
ticles is a bar to an} iiidictiiKiit tor the same 
matter, was ivs:(dv<-d l>y all thi> judges, as I am 
informed; in thu t-xso of tho l^rds in the 
Tower, * who wore tdl indicted tiir ti-eason, 
either in the King's i»H|icli or beloro commission- 
ers of Oyer and TrrniisMT. And afterwards 
(5 Dec. 1(378.) geneialiv iiiipi^arhed betiirc tiie 
Lords in parlinuient ; aitd ut> articles exhibited 
tdl 3 April 1679. Aiul yet in the mean time it 
was rcsolv«:d at the <. o'uncil Table by all the 
Judges there attcndiitjjfi tliHt uhcr the general 
hnpeaeliment before arlielcs, they could not be 
jirficeedcfl against upon those indictments, 
though the parliniiient wherein lluy were un- 
peacbe<i waA dissolved. 

And that was a stnmger case than this of 
Fitzharris : for then* tho inti*rior eourt was first 
possessed of the cause, and yet tho ^neral im- 
|iea( hment closed up the hands (d the court. 
But in this c»se, the superior court, the fiarlia* 
ment, was first possost of the clause, which 
cannot be taken out of their hands by the in- 
ferior court. 

There is a farther diircTence betwixt an im- 
peachment in pariianienl, and an indictment ; 
that in an hidictineut which is always as par- 
ticular as aii ides upon an impeachnient, you 
caiuiot plead auier J'oiiz arnugwd ; but you 
must plead afttcrfoitz convict or acquit, as ap- 
pears m sirWiUiam VVishi[K)le*scase, (^Iiron. 1. 
105. Bill in an imiMnieliineiit in parliament, 
the other side will acknowhilge, that aflcr ar- 
ticles exhibited, there can Im* no pniceetlinjra 
njjon au indictment for the same oH'ent.'e, s3- 
though the defendant in tlu* ini])cachnient be 
neither convict, nor ac<piit. thiicrwise you 
may bring back all the Ion Is in the Tower to 
the'Kinff's Bench to bi» trieil, which Mr. \ttor- 
ncy willnot, I sup|>ose, attcuipl. 

i\nd it is obsenublein the eas«? of sir William 

••See vol. 7, p. I^IH, of this Collect! -n. 



307] STATE TRIALS, 33 Charles II. iGSL^ProeuirngM H^wt (SOS 



Wisliipolc, That to avoid the doubt that the 
]iarl}- tlieixi should not be questioned, both VL\\on 
the Coroner's Inquest, and the indictment of 
niunler ; it w sn mUni by the court, that the 
finit should be quashed as* insufficient : So care- 
ful were the jud}^ to avoid the double vexa- 
tion, in a case coin|)ared with this, of no great 
import. 

1 sliall say no more to the case, hut only ob- 
serve how scrupulous theju«l|fi*s have been to 
touch upon a case, w here they had tlie least 
suspicion of jealousy that the |)ai'liament luid, 
or pretended to have a jurisdiction, or were pos- 
sessed of the iniuse. 1 am sure I could ne«-er 
get any thing by any labours of mine in those 
leases. Hut u|Mm all such motions they weoe 
si> aware of what might be the consequence, 
that thi'v wduKl always worsiiip afar off, and 
would never come near' the mount, they would 
ever retiie when they ttimc but near the brink 
ofthisgidph. 

Now, my lord, if you rf*tain this cause, in 
ctnistM|uen(>e you charge yoursi'lves with the 
bKHulurihis man; wherein, if you proceed 
regularly, ami according to the law all is well. 
But however, by overruling his uKm, you take 
iiDiin you his blood one w ay t*r ot her ; through 
w hicli you must w adr to* C4»me at the cause. 
Ami whctlier it \w advisaldo to comt* at it upon 
these l«*nns, 1 Isave it tn your loidsihipN w isdum 

to tXM)sid<T. 

Mr, Po'UrfVn, M\ lord. I shall not make 
any \**u-x nr^umrnt. ilu'iv hath l^rn so much 
Miid hvio\>' nie. Hut! wn-.l] lain come to iht- 
qucsiionit 1 nuild ; \'nr 1 nr.i>t confers. atWr 
all, i c.uiiiii! st'i' \*i:;iT \hv i«thn side ni;ikr the 

tllUMioil. Mr. \XUK\tV\ V. ;iN |iti-»>ni to s:iy, 

tiiat Unh for t'uc in.iift-r a;i«l ti rm. ht* oli|» * utl 
as^iinst cur )ili a. Uut it' ii>r uw matltr it lie 
aduiiitrd lo i:».\ iJi.^.i an im|>tui hnu'iit m |iai'- 
li;un«ni tor the >.t>ne matter will dui thi> court 
of jiuiMlioiion : I will *.^\ nothin* at all i»t 
ii. tor I appivhend thai i>'noi tlu ii iii q.t^inni 
!.. C. ). No. fu»t :ii all. 
Mr iViit'i.'i':. Thm tlu- iiu:ur vnu-^ tf Ih 
a^n^td, ami only the uiauner p.ml Imt'.k ol a 
plru aw no» in i^\iestiv-<ii. And tor thr n-iiiT.*-. 
- they except to it m iht^f {«artitul;ix - i\T<r i'h»-\ 
MJv it b Dol all««liiv«l tiiut Tiu re i> a]i\ iu>}>« ^*\\- 
ment upoo rect>nl ; now i CiiitVs/. lorm is a 
■ubiil matter in iist«lf, ami it is tas\ foi any man 
that reads oUkt Wi*n*> wivds and w riiiiig^. it* be 
irill, to make wha: v-'\'>4rn'u«»u he wdl of lluii'. 
even Noiuniiks to U^ \ flunms ; I ui I kiic w il.^ 
conrt ^ill uoi do so. Bui tor dii uiVNUtr so i\w 
olfiectioii. 1 ihiidiL It is as >:ron::l\ aiid cioitU 
pconftl a« 1 can i« 11 iu-.w i^ j^.^ jlV.\ iha'j. h't 
^gaimpettcltol. • Uu.i tii:«U!n linjVr.tio. \^ ' 
Wbat can ihai • qiw i^matjir >*iiiiiT\ . b'-.i ihe 
impeadhumii th^t «,** mst mcn:;oi:;.l :.. l;.^» ; 
Itat what the) m^aii l.\ ihi^ lo v..\ . I'-.-.s .< :.o; 
e Ulip«u.'li!r.cr.:. wbtn Uii wori< .;rt' 
that II IS iht >a:i!e. I r..'..>; o v.h>.n I 
CuImiu. 

My lasd, tbetv was aLvxic: ih ■ „- sjvk^u llu 
4^,bittthr\ buw m't iu*«;. ;.,^{ ii i:o-.r 
aay ibms: »-^Tvd ui i:. I Ikhv irnir 



lordship will be pleased to hmr m bcfixe jod 
give your judgment in it. That it was not nid 
to be tuk pede tigiiii ; but I know diey wiD net 
insist upon it, tberefiNre I say nothing It 
that. 

But the great question nowis, wliether or m 
this be not too general, the aUedging that he was 
impeached in pariiament, and not tmying hnr 
or for what crime ; thon^ theiv be an aver- 
ment afterwards, that it is for the said crisK P 
Whether this be not so general, as that there- 
fore this pleasbould be naught P . 

First, For this of the averment, Itakeitwidi 

submission, let die crimes be never so ipani- 

cularly specified in the record that is pKadel, 

and in that upon which the psrty is brangk 

in judicature, vet always there must be m 

averment ; ana that averment is so mndi As 

substantial part of the plea, that let die mller 

never so much appear to be the same withonl w 

avcrmeut, it wmdd be naught ; and it MHt 

come to be tried per poti, whether theo fa ee 

j be the same or not : For if a man plead •■• 

indictment for the murder of J. S. to MSlhcr 

indictment for the murder of J. S. tiioaghlkj 

bear the same name, he must aver they are mt 

and the same person. For else »«« coMtef Ii 

^ the coiul ; but there mav be two J. 8*8. Hhm- 

\ fore all averments are siiU the substance sf ibi 

plea, to brinsr the identity of the mattar w^ 

I jmlsfinent, an J are to be tried by the eovlrf : 

, No then the objection to the generality is not ■ 

I ohjoction to the substance, but rather an oljee- 

tion to the form on their side ; because thsnb- 

staiMv is allfr«lg«^ in the plea, that it is for the 

I same treason : Which substance, if Mr. A^ 

■ tiiniiv had thought not tit to have domnnedto 

hut taken issae on, must have been tried 

llaviifj; thus spoken to the a%'crmeiil,By 
Uird, let iiiespeak to the s^eueral allegation tbst 
' he was iin|i\ ached for treason, and itoisayisf 
)Mi-itt uLui\ what the fa«.l was. 

M\ lord'. ifthr\ aduni the law, that an im- 
peAchiutiit in parliamrut does suspend orlHi 
;iway the junsdictiun of this court, then thcj 
lia\f aihuittt-d t'rirat |ian of the tact, anddNS 
ilir iiuitvi' in quostiiia %viil be, what imi 



iitrM p; oarliaiiuui ii i^ thai wUl lake away the 
jiiriMii. ii>-ii of the i>)urt, i>nd there can be hat 
iwv M^rt> ; \iw iitr -ji lars:^. where the whoh 
orVr-i..^ .« kTVx.rivd : tii«.^ mher not at large, hal 
i-:.i\ .:• i.iiivr..: wc>ni>. Ttir knichts, i i^'gf '"i 




an i L-.i: >t->:s \^ pj.:: jaiieni assembled, ii 
v.\v..K ' 1 :i.. .i.x. ; . >. .'.'A i.f aU the Commonid 
F.r^...". -. [o ::n^x:!i s-ioh an one of high- 
tre.i^ 'ii \ vv. . tv\ lord, if so be such ■fr- 
{vai'l.urt.t .:. ;vi ::An".* .1 y>e a good a 
n:tx;. i:.:'i: • vt v.e. I tlunk. tha most 
iM<-. (ilt.:^:-.\l i\.M V a.. \>. AS plain as the'fod 
ih.il i- -s :- 1:1 ::i. o.ichment in pariiameift; 
.i.ni i':..". ii.> 1.- .1-^ i% outed of its jmisilir- 



k. 



■.-1 



TiKv ;r».\: 



w'aix."ii I vv < ..-- 



V; ii 



Lk^'-: ^~cc U.:'.-re. bare said 
.■u\ \ •-■•Mr ■ -.^niship to 



•■' ATv I • lake noiioe of thi 
i'r^xvi'^j^:^ ;.: -.uit:.'' cv'^tlp. aisc'ther courts an 



309] 



STATE TRIALS, 33 Charles II. iGSL-^Edward FUzkarru. 



[31( 



booMl to take notice of the proceeding of this ; 
ilicB I would sappoae in otner familiar cases, 
there is geneffaUj(8S it ii true in Hpanry's case) 
the writ or dedaraiion, which does in all civu 
cuMi set ibfth the particulartty of tlie thini^in 
foestioB, yet in some eases we are sure it does 
not do 80 ; hot the coarse and practice of 
some ooints admit general proceedings. Now 
wheieiei that is so, the party eonnot mend 
Iriaiifif by making their course otherwise than 
it ■ : For he must not say it is more particular 
ihaa the coarse of the 6ourt does make it. 
he hath no other way by the law to 
nmtter on, and help himseH', but by 
lent that it is the same. I will sup- 
mm a case of such a nature as this ; a roan 
wisp an aeoount in London upon * Concessit 
advoe,' and he does not particukirize in the 
any thing what or how his debt did arise; 
he bnngs another account or delivery, 
declaration in an account of debt : 
■ol I, because the first declaration is in 
ironb, aver that this is tlie same mat- 
he sued for by the * Concessit solvere,' 
he now sues for in this particular decla- 
: Or, auppooe a man in this court does 
m account for divers wares and mer- 
■old, and does not express any {lar- 
hut that be was indebted, in general 
for wares soM ; and afterwards becomes 
■i hrhm another account, and says, it is for 
'laadsoch wares ; so much for cloth, so much 
te. though bis first declaration be 
, not expressing what the wares were, 
te Isstia particular ; shall not I come and 
iW k ahaftement to the second declaration, 
and second were for one and the 
? Huppooe again an indictment of 
fimna against a man, which is an 
ia only general, and bath no par- 
lAedged in ue indictment ; should not 






the second time indicted, come 
tluB ia one and the same ? My lord, 
J in all these and such like cases, 
■uel be goremed by its own proceed- 
tnka motioe of the nature of the things 
before the court. And if so be, upon 
of die nature of the -thing, there 
I of eertainty set finth as the case will 
,— dh possible to be had, we must permit 
fta iwty to I^cid aa he can, and help himself 
brmoBvcnnenL 

ny loid, the question is, whether an 

' generally in parliament, without 

Biting forth tor what, be a good 

_ !or no? If they say it is not, 

boHon of the plea is naught, and all 

tmm\ butif they say it is, then i have 

'■qr maHer as it is. For I cannot say, 

I Aat ia partKolar, or make that particubr 

%m Ml ; and I have done all that is possible 

aa to 4om my ease. 1 have pleaded what 

mfkm toeoid; and aa it is in the rcconi, 

■ny plea most not vary, and 1 have 

is fortne same matter, and you have 

il hj the dem u rrer . 

H^lwdi I fiwld Bat imuglo Ae q^tettioD ; 




but I must confess, 1 cannot see hoiv they cai 
extricate themsclvfs out of this uttcMiiiiu, if'tlie^j 
do admit a general impeachment is a {jjT^Kid mv 
peaclnnent. Then there are fresli iiiSi antes o 
this coniiiderable in the cuse, as thatuhitrh hatl 
been particularized ot tlie K. ids in theTowcr, am 
of the opinion in Febniarj^ uf the judges in tht ii 
case. For in the be^nniug* uf liecembcT ^vcn 
those lords indicted ; and alier on the 5th o 
Dec. the House of Coniinous taking it intotlieii 
consideration, that t^icre was a <Hjniniissii>! 
goin^ out foran higli--.:te^ra*-d, with an intt u' 
to bring them to trial l>i*;urc « lie peers; the\ 
purposely to have the carriage and pnisccntior 
of tills great and horrid tvt>usuii, and takeott' tl;( 
prosecution upon the indictment, do iiii) c-u'-b 
tlie sauie lords, and there the iinpcacbnu'iit ic 
just the same as this hi «uir plea of high-tiva- 
son ; but not of any parliinilar fact, adding, 
only of uthei' crimes and inistiemcanoni, whicli 
is as general as can be. Now, my loni, the 
judges did take so much notice of it, thai 
though the parliament was dissolved before the 
particular articles were carried i p to set fortli 
the particular oflence ; yet in February follow- 
ing (some of the judges are hero, and they will 
rectify me, if 1 lie mistaken) tl.fir upinions be- 
ing asked aliout it at tlie coitncii-iK)ard. upor 
the petition of the Lonls, ti be either bailed oi 
tried ; they wore of opmhiii, ilmt this ini|)eacli- 
ment, though thus general, \i as so depending 
in parliament, that they could not be tried. 8o 
that 1 think the niuceedings in parliamtnt arc 
of that nature, that if vou will meildle ^vitli 
what they do, you will take notice of then 
method of proceedings, as you do of otliei 
courts. 

Wh^Mlien, my lord, if this be so, how is ii 
possible for us to do better ? We have pleaded 
as our fact is an impeachment of high treason, 
what would they have us to do, or wherein is 
our fault ? What would they have had us said! 
We were impeached of any his^i-treason, so 
and so particiuarizing, how can that be ? There 
is no such thing. Then they would have said| 
* Nul. Tiel. Record ;' and we must have been 
condemned for failing in our record : Then in- 
deed we had been where they would have had 
us. But having done accoruing to our fact, ii 
tliatfact be such as in law will out this cf»urt oi 
jurisdiction, 1 see not how it is possible wc 
should i^ead otherwise, or what answer tliey 
will give to it. 

My lord, I will meddle as little as I can with 
what hath been said, they have mentioned thai 
it is a case of an high nature, and this un- 
peachment in parliament they Mill look u];oii il 
as tlie suit of all the |>eople of £ng1and ; '.'. h^ 
then, my lord, this must needs lie agret;d tc 
me, if this impeachment in parliament be* in the 
nature of an appeal, surely an appeal does si.n- 
pend the proceedings upon an indictment iw 
that tact: Which is the case expressly ii: niy 
lord Dyer, fol. 290. Stanley was indii t.-ii (il 
murder, and convicted ; ai'ter he was coi:. ctul, 
and before any jud|nnent, the w ite of the par\y 
murdered brought Tier appeal: tlion came they 



311] STATE TRIALS, 33 Cii ARLBt IL 1 68 1 .^Proceeiimgi agaimgi [312 



Mferal instanoM tliey have uaed to Mqtpori ti^ 
plea) but the prisoner pleads thispm to tfas 
purpose thai he might csca|i«. Thenfora if 
thettB gendemeu haS taken lostrnctioBi fcom 
him, surely they would have laed aiyuBMHi 
to the same purpose that hm mighl escape. 

My lord, they olgect we have sdmittfj hers 
that there is an impeachment depending, thit 
we have admitted it is ibr the same natlsr, nd 
that we have admitted the pariiameat t» he k 
being; but no tact is admitted that is not wel 
pleaded. Indeed if that be admitted Alt ifas 
parliament is still in being, thea it geas vm 
nanl with us ; and if not so admitted, the whsfi 
force of Mr. Williams's aigiunent fidia te ifat 
ground. But 1 say, my ksrdi with snhm' ~ ~ 
to this matter, that the beginning, oontis' 
prorogation, adjournments, and^ diM 
of paniaments, are of public oognisanoei 
the court ex offieiQ will take notice of thcii, at 
that they need not be averred. Andaoistte 
41 of the queen, the bishop of Norwkh'e Gta. 
A private act of parliament was p fc eded, «ri 
the day of the paniament mistaken; dNvawv 
a general demurrer, and it was resolved thot il 
wairnaiight, and judgment given agaips' '' 
bishop, thou|^ no ezMption was taken m 
ticular, because the days of the bcf ' 
ending of parliaments aie of public nouoet 
the judges take notice, when a parlianMMtkiB 
IxMng, and wlieu not. That is a airiBcifl tm* 
s;vfT to that matter. 

Then for those many cautions that have baai 
^i\en you, what a difficult thing it ia ftr two 
jiirisdictidiis tointerieie, Mr. Fitiharris is neck 
C4»i)cprned in that nuitter, who hath fnifciiri 
hi A life to thr; law as a luottt notorious eAndOT 
that certainly desenis nothing hut wuUk^ 
uicnt ; yet lie woiUd lain live a little isogsri 
and is iiiuch concerned that the judicature tf 
(»ar!iaineiit should lie preserved. If it be est 
law, he shall not be oppressed in it; but if il 
Ite \eL\¥,Jiat Juntitia. Certainly no oonaidm- 
lion whatsoever ought to put courts of JMtiSi 
out of their steady course ; but they ouEkk t$ 
proceed accordinfif to the laws of the land. 

]\Iy lord, I obsene it is an unusual phi^ 
and perhaps they had some reason to put B Sib 
It ronchides, ' si curia pi-ocedere vult,' I WM* 
(ler they did not put in aut debt at ^ that is Ibl 
usual form of such pleas ; for you have OS el 
but the law, and if you cannot give jodglMil^ 
you oufcrht nut to be |»res8efl iu it ; but k bd^ 
a(*conhiij7 tu law that {f ff at odendera end 
factors should he br(iu((ht to conilign | 
ment, we must pi-ess it, \ihatsoe%-cr the 
qiienees arc. And if wc did not take it till 
the intcrefit of all the kingdom, and sf III 
C^onmions too as well «'u» of the king, my lldk 
I should not press it ; hut it is all their iiMi^ 
that MO notorious a malvtiu'tor that hath eil» 
tainly been guilty of ti*eason in the higkMldi 
gree; and that ior the utmost advanceoMHld 
tlse late Popish I^ot, should not escape, ar At 
tnith be stilled, but brought into exasoHMlilft 
, ... ^ in ibe face of the sun, that all men nay ^ 

tlcmau should esca|M: (which arguments in what a viUaittoua thing hath been attemptoi t» 



and moved for judgment : No, said the court, 
here is an a|»peal brought, and thev- could not 
go to judgment till tliat appeal was determined. 
So the sut. of 3 Hen. 7, cap. 1. and Vaux's 
Case, 4 lieport, fol. 39. An appeal of murder 
the party convicted before jud^nent, the peti- 
tioner in the appeal did die. Then an indict- 
ment brou^t, and this conviction pleaded in 
bar of tliat indictment, and adjudged to be a 
good plea ; but then there >vas 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 shew, that if this be' 
of the nature of an appeal, then ought this suit 
first to have it'n coui-sc and determination, 
hefore your lurdship proceed on this indict- 
ment. 

But, my lord, whether it be of this nature 
or no, is a matter we know were under great 
controversy ; and whether your lordship Hill 
interpose in that great question, or whetlier it 
comes in judgment under this question, you 
will do well to consider : For it is a matter of 
parliament, and deter uiioahlc among tliem- 
selves, 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 lie as 
much reganl had in this great cause to the 
court of parliani(:-iYt as in Dtliers. 

Resides the authorities cited out by lord 
C'oke and others, 1 would cite oiic more, and 
that is C-otton's Ueeonls, 5 H. 4, fol. 426, the 
earl of Northuir.herlaiHrs Case. He comes 
and confesses himself to bi;(;iiilty of an offence 
against his nlieiriance, thn Icmj^ delivered his 
petition to the justices, and would have them 
to consider of it ; no, said the j)arlianient, it is 
matter of pariiament, and the judges ha\e no- 
tliing to do with il : the l^rds indce a protes- 
tation to this purpose, and tlicn tht-y went on 
themselves, and a(ijud<red it to he no trea5f)n. 
There is only that one record more which has 
been often cued, and that is, Rot. Parliamenti, 
11 U. 3, pars 1, n. 6, in this parliament the 
LonU spiriniai a: id temporal cluimeil the same 
privilrg,*. My lord, I only o.Ter these things, 
witli what my lord (>»L; ia^ s hath been lor- 
inerly thoii<;f!it proilintn; in tfic judges to do. — 
So that I hopt", that if the matter be good, the 
fonn is as ttroo:! as the malier <>an be put into, 
and therefore wc ho])C vou will allow us the 
benefit of it. 

Attorney General, May it please your lonl- 
•ihip, I am (»f eoimsel in tfiis cdf^^ for the kiny^, 
and notwithsiHMding what hath been said, I 
take it, with sahmission, that Uiis plua is a 
nant^'.ity pha, as a plea to vonr jurLsdiction, 
an I I here is no matter distlosed therein that 
we can take a gmnl issue niion. 

The y:i»a: Mil),t.iiic«? of the ai^ument9 of 
tlicse gentlemen uvsij^nwl of r^ounxej for the 
prisoner, is a^Minsi the prisoner. For the gwat 
matter of their arguments was, lest this gen- 



STATE TRIALS, 33 Charles IL iGSL-^Edward Fitzharrit. [314 



f the whole Lingndom againiit the king : 
y aiy, if ii be not law, you will not pro- 
t ties your haodi. But, with subuiia- 
ey hare not given you one iiutiuice to 
tHMl what they say> Maiiy ihings Lave 
lai a pka depending in a supcrriur eoyrt 
lable to the jurimction ol' au inferior 
tor, way kmj, that is it we put upon 
I shew : it* it had been pleaded in abate- 
( woukl ha%e had its wdght, and iieen 
red of, as in Sparry *8 Cane, where it wu 
to the jurisdietioB. 

be case it had been a good inipeach- 
nd he had been arraigned upon it and 
d ; it* he had afterwards conic to be in- 
n this court, and Uie prisoner will not 
■B in bar but to the jurisdiction of the 
ft would not have, been a good plea ; 
bad lost his advantage by mispleading, 
an arraignment, and an acquittal, or 
thereupon, is not a good plea to the 
1; then certainly an impracbment 
mg ODgly cannot be a good plea to the 
Thia 



his court hath a full jurisdiction 
and of this person, butli of the 
lad of the party, who is a cf)ninioner ; 
I only to find the indictment, but to pro- 
> jnsticfs ; and tliis\ ou had at the time 
set omimitted. F'or certainly, ^ e ni-cd 
t castt for to piuve that tfif> King's- 
cspccially since the statute for trying 

beyond the seas, hath uu universal 
tisn'of all persons and oifences. Pray 
bai is it that niUHt out this court of thuir 
tkai ? For all the cases that have been, 
be put about matters which are iMit ori- 

cxaminable in this court, make not to 
ttcr in question : there, it is true, the 
any he by plea outed uf its jurisdiction ; 
iHnon law, where a fact is diuie * super 
I Bare,' and so plea«ied, that )Mits it out 

court's jurisditrtion ; and that ivas uiy 
sttis's and sir J. KUiot's Case,* and sti 

■ my lord Shaftesbury's Case f- too, the 

■ done out of their jurisdiction, and that 
• pleaded to tlie jurisdiction, Ucaus-e 
id no original jurisdiction of the fact ; 
Ott the crime and the person were ab- 
r withiv the jurisdiction of the t*ourt, 
sooort may originally take cognizance 
i this court hail of the present c^ase, I 
bin know what can out that jurisdi<-tion 
■I an act uf iKirharoent: I will be bold 
iho long hy his great-seal cannot do it ; 
I Mi act of either House, or both Houses 
ir without tiie king, out the jurisihetion. 
r« Ihoir proceedings ought to be a bar, 

aastlMr case, the party hath his ad- 
% aad Biay pk^ it m abatement or bar, 
an veqnues: for if there had been an 
ri OT eoBvictioii, the party coidd not 
Itothejuriadictkin. Therefore for those 
km Mftt when you come to examine the 
Nb nm, yon see how they stand, viz. 



Si* 



S, p. S90, of this CoUection. 
6y p. 1270, of this CoUection. 



that the court had no origiiud ^urisdit uoo. 
.Viy lord isUuiftsbuiy was commiLteii by the 
Lords for a crijiie iu ttiat Kousc ; ^ a conieuiiit 
to that House, Im: is biuuglii h%re, aud li appears 
to be a coinmUuieut iu i:.\euutiun. My ioid, 
that was out of ) our* jurlMictiou ; aud il you 
had bailed him, what would you have tkiue? 
woukl <kou have bailed hiuk iJite tried lieic? 
No, yoii coidd not fK) it, aud therefore y^.u pru- 
ceedeil not iu that cA^i:. And so iu th«: tituer 
cases: for there is not oueoftlieir cases mat 
have been cited of ihe uLhci* side, but \> here it 
was out of the jurisdiction of thecoun ori«,iivdly, 
and not at ail nilluu it. As for the ca»u oi tlie 
five Lords iu the Tower, becau^ tlie^ say it 
will Imve a uiighty mduence upou tbeui, aud 
they put the case, that there was iu l/eciembiT 
an muicuuent, and aflenvards au uuiK^Ui hment 
fn>m the Couuuous ; and they cite suuic opi- 
nion, given at the Council-board, wiuch I hi»|ie 
tliese gentlemei) will not say was a judicial opi- 
uion, or any way attects this cause : hut lor 
tliai, my loi-d, I observe, the Lords took care 
that these indictments should be ail removed 
into the Lords* llou>e ; so tliey did Ibrssee that 
the king might ha\e [)n»cede<l upon the indict- 
ments, it ihey had nut been remo\ed ihithcr. 
But our case now is quite another thing : lor 
tliose Lonis Here not tiiUy Mithiu yourjuruMiic- 
tion. Vou cannot try a peer ot tlie realm tor 
treason ; and besides, the Lui-ds have pleaded 
in tiill parliament, where, by the law ot par- 
liament, all the peers are to be their judges ; 
and so you cannot out tbeui of that riglit. And 
the reason is plain, liecause thereby you must 
do them an appaiiMit prejudice ;they have plead- 
ed there, all the \\ hole pct'i iige are their triers. 
But ujion trial brture conniiis>ioners, tlKy must 
have but a select iiunilier ot pe^rs :u be their 
triers. But in uoiii' of those cases hath any 
judicial opinion been givc-n . t'l/r the lasc ol il 
H. 2. first cited by sir Fran. Winiiington, and 
then by Mr. I'ollexlen, a declaration in parUa- 
luciit, That they proceetled according to the 
law of parliament, and not acoor<iii*.g to the 
common law, nor acconling to the practice of 
inferior courts ; and thatwdl be nothing to oiv 
purpose at all, that was in case of tlK> liorda 
appellants. A proceeding contrary to Magna 
Chaila, cmitrary to the Statute ot Iluw. 3. aud 
the kuown privil«^i> of the suliject. But those 
proceedings hail a countenaiic-e in |)ariiiuu(>nt ; 
lor tlH-re was an tiath takm by all the Lords in 
parliaiiieut, that they would stand hy the Lortis 
ap|iellanLs. And thereuiMiu tlu'v would be con* 
troiiled hy iioiu>, anil they woiil!l not l)e advised 
by tlic judges, but proceifd to tlie trying of peera 
and (Mjnimoners according to their own will aud 
pleasure. And between that time of 1 1 K. 9. 
and 1 }L 4. see what hav<ick they made by 
those illegal pM(*i>cdingB ; and in 1 II. 4. you 
wUl see, that tlieso very lords were sentem^, 
except one or two of them who were patdoued ; 
aud then it was expressly resoUitl by act ot' 
lorliament, that n<» more ai>peala of that nature, 
nor any ap[ieals wliatsoever, shoidd be any mcHie 
in psrharaent. And if so, theee gentleman hid 



315] StAT£ TRIALS, 33 Chahles If. ibSl.^Proceedingi ag^mU 



best consider how they make an impeachment 
Kke an appeal : for in that statute, it is said, there 
shall be no more appeals. And the petition upon 
which thb act is founded, rons thus : they pray 
that no impeachment or appeal ir ay be in pimia- 
ment. But when the king came to make the 
grant, he grants only for appeals, and principally 
to out those Lords appellants who were condemn- 
ed by that very jiarliament. So that it is very 
pretty matter at this time of day to like an im- 
IKsacfunent to an aupcal. 

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 
confewed by us, only the fact that is well plead- 
ed : therefore I shall come to consider what is 
said by them , as to the form of it. They say, my 
lord, that tlicy have pleaded it to be * secun- 
dum legem et consuetudincm parliamenti ;* 
and if that be sufficient, let them have said what 
they w ould, thut would hnve healed all. But 
1 8a\ , my lord, with submission, they must 
disci' ise to you what is the law and custom of 
parliament in such case, or else you must take 
It u[K>n you upon your own knowledge, or you 
cafinot give judi^tuent. It is ?ery well known 
wliht this * Lex et consuetude i>arliamenti* is ; 
no porson versed in the records, but knows it, 
that by course of purlianient a message goes up 
with a declaration to inijieai'li the party gene- 
rally ; and then after there are ai-ticles or a 
billot' impeachment produced. Now till that 
be produced, surv there is no counsel of the 
other side will say, thut ever the (Kirty can be 
called tu answer. And l>ccause these gentlemen 
do jirHond to ui^fe their knowlwlge herein, I 
would observe tliei-e are three tbinprs to be con- 
siden^d of the parliuiucnt ; the logiKlativ«^ part, 
the uiattei-s of privilcg**, and the judicial part 
proper to this case. For pie legislative pari, 
and matters of privilet^e, both Houses do pro- 
ceed (»nly ' secundum legem et cnnsuetudinem 
jiarhanienti ;' but for the judicial part, does 
^y mau question, but that in all times, they 
have been ^^iiided and directed by the statutes 
aiul lawii of the laud 1* And have lieen outed of 
a jurisiiiction in !>everal rases, as by the statute 
of k ImIw. S. and 1 H. i. And the Lords in all 
writs of error, and all matters of judgment, 
proceed * Si^cuudum h^cm tcme ;' and so for 
life and death. And there is not one law in 
Westminster- Hall, as to aiatters of judgment, 
and another in the court of the l^onls above. 
But I will not trotilde your lonlship any further 
to pursue these things. Hut it is not suffici- 
ently disclosed to you, that there is any such 
thing as an impeai'hnu'nt depending * there ; 
it is only aUedge<l, that he wa*; impeached, and 
so nuirn the uews-lHN>k t(dd us, that he was 
imi>cachi*d : but to infer from thence that there 
was an impeachment carricHl up and lodged for 
the same High Treason, is no consequence. 
And then it is aUedge<l, * Quur quidem im]K;titin,' 
when no iniiieachinent is l>efoi*e set forth, but 
only tliat he was imi>eached generally. And 
as 1 observed befon?, a person might go up with 
■ message to impeach, but thai cannot be said 



to be an impeachment to which the p 
compelled to answer ; it must be an im 
ment on record, and appearing on the 
the record for what cnrae it is ; and i 
ought to have set it forth. 

^ow that thb is too general that is al 

here, I X^keii die book* axe very fall. 

a record is pleaded in bar or in abatemc 

crimes ought to be set oat to apoear the 

and so, my lord, are all the preoeoentB of > 

Entries, 63, Holdcrott's aim Buigh*8 cai 

Watt*s and Braves case in 41 and 4S of 

Eliz. Coke's £nt. 59. Wrott's and \ 

case, 4 Rep. 45, and in Lewes and Scfaoh 

case, and Dive's and Manning's case. 1 

cord must be set out, that the court maj 

upon it r and the record must not be tn> 

pttit^ but by itself. But for what the; 

plead it never so certainly, there must 

averment, it must be so it is true ; but 

for another purpose tlian they uroe it 

reason is, because if it be for another fa 

he hath committed, he may be indicted 

though it be of the same nature ; but w 

of the same nature, or not of the same i 

is the thing must appear upon the 

pleaded, because the court mustbeasceri 

tliat it was sufficient for the party to ans 

it ; for if it were insufficient, he niay be 

proceeded against : As if an indictm< 

pleaded which was insufficient, thong 

paKv pleads an acquittal or conviction u] 

It will not avail him ; for the court will pi 

on the other indictment. And so is the r 

tion in V'aux's case, and in Wigg's 

though there was a judgment given of a 

tal, yet he uns tried again. So that, m; 

that is Oil'; great reason why it must a 

that tho court may judge whetlier it be 

oient lor the party to answer. And yoi 

now that here before you ; if this be sii 

impeachment as they have pleaded it, i 

pei'son could not answer to by any law oi 

Uameut or other court ; then it is not suf 

t(» out you of your jurisdiction. And I do 

tlia^by no law they are, or can be compi 

to answer to a giMieral impeachment of 

treason. And to give you authority in 

there are many might be cited, as the ca 

my lord Stafford, and the other Lords i 

Tower, and so is tht; ancient course of p 

mcnt: viith submission, I will be bold t< 

the impeachments are all so, that ever 

with. And it appears by them, that tb 

conclude * contra coronam et dignitatem r 

in the form of indictments, laying some 

acts and the special particular crimes for v 

the person is imi>eached, as overt acrts for 

son re^piired by the statute of 25 Edw. 3. 

I hope they will not say, that without an 

act laid in the im|»eachment, the irapeadi 

can be gooil. If then this be so general t 

cannot make the crime appear to Uie court 

is so insufficient, tliat the court cannot 

judgment, 1 take it you will go on upon tl 

dictuHiit, wliich chargeth hioi with a pai 

lar crime. 






STATE TRIALS, 3:5 Charles II. iGSL-^Edward ntzharris. 



[3U 



My Ifiitl, Mr. Pollcxfen does put the case of 
bvretry ^Uere such aTcrtnent is allowable; 
bat that is a special, certaiu, and particular 
crime, but high treason is not so ; there are 
abundance of special sorts of high treason, there 
is bat one sort of faarretry, and there are no sub- 
divisions ; therefore there is nothing to be 
iferred but the special fact that makes that 
barretry. 

Then there v»&i another anthoritv out of the 
bnak of as^zes cited by sir Fran. Winnington, 
ni givatly relied upon. A man is indicted for 
i%e miinler of J. 8. and aflerwards for the mur- 
dfr of J. N. the former was pleaded to the se- 
cond, with an arerment that it is the same per- 
aea; that i^ but according to the common 
Isnn of arerments, to be of matter of fact. For 
if J. 8. was known, as well by the name of J. 
N. as of J. S. the indictment was for the mur- 
der of the same person, and there it is pnre fact 
■fcfred. But where it is essential, as this case 
iiftbit the |iarticular treason do appear ; to say, 
ttat it is the same particular treason, and to 
ajy ftal matter oi' fact averred shall enlarge a 
noMd, I think, is impossible to be found any 
vhfie. And of all the cases that I have seen 



or beard, I confess none of the instances comes 
li to it: lor the case in Moor, King and 
nowinl, cited by sir Francis Winnington, that 
B an andiority as expressly against nim, that 
■othing can tie more : for if there be an indict- 
MHt lor felony in such a particular act, and 
iba he is indicted again, he cannot come and 
fW a jieoeial indictment of felony, and then 
m it a for the particular felony, and so to 
■Ae the ftct enlarge the record, and put mat- 
kr ft lerord to be tried by a jury. 

Mr. If aflop was of opinion, that upon this 
*ui m the jury may try the fact. What a 
pfijr CHe woiild it be, tliat a jury should 
the whole debates of the Ifoiise of 
whether it be the same matter or 
Ibr those debates must be given iu evi- 
B, if such an issue be tried. I did demur 
•iA aB the care that T could, to bring nothing 
if Ibit in question ; but your lordship knows if 
ftqr hsTe erer so much in particular against a 
■iB, when tliey come to make ^ku\ their im- 
pafhiBfpt, tliKv must ascertain it to a particu- 
kr crime ; and' the orcrt arts must be alleds^Hl 
■ the impeachment, or else then* is anotlior 
^jq to bana a auUect than what is the kinpf's 
highway ut over England. And admit there* 
via an mtiroatioii of a purpose to im|i€neh, a 
sent up, and any judgment given 
pray consider what may be the 
e as to the government; a ver}' 
natter depends o|ion tliis : if there be 
9ff leoord of that parliament, thni is the 
"^ gone : for so is tlie resolution in 12 

ere tlic journal-book was full of pro- 
gs ; yet because there was no judg- 
ttai passed, nor no record of a judgioeiit 
iia writ of error, they adjudged it no session ; 
Im If any judgment hail been given, then it 
M keen'ouierwiae. 8o that the consequences 
^nkcse thing* are not easily seen, when men 
upon touchy matters. 



But that which is iM-fore your lordship is 
this point upon the pleading, and I conceive I 
have ans\«cred all the precedents they have 
cited ; therefore, luy lord, I take it, with sub- 
mission, there is nothing of that matter before 
you concernmg an impeaclmient depending be- 
fore the pailianiciit ; but whatsoever was done, 
it is so imperiectly pleaded, that this court can- 
not take any notiin; of it. 

3Ir. Solicitor (Jeneruf. i\l v lohl, I shall en- 
deavoui- to be short, and shall confine myself 
(because I am tender of 3'our time) to the i>oiiit 
in question ; which is, whether this plea be 
sufficient in point of form '.' There ha\f been 
many things said on the other side, which I 
must crave leave to take notice of, ^o lUr only 
as to shew they are not iu question before you. 
Those are what relate to the inatti-r of tlie plea ; 
for they argue it is gootl both in matter and 
fonn : and I'roin the matter of the plea they 
have taken occasion to debate, u liether a coni- 
monei* may be imiieached ? Whether this Court 
hath power to judge of the pri\ ilegcs and 
course of jiarliumcnt ? None of m hich ques- 
tions will arise iiiM)n our case now. Therefore 
I will not now debate, whether Magna CMiarta, 
that hath ordaine<l that every man shall be 
tried by his 1'(*ers, and the statute of 4 I^hv. 8. 
whicirsays. That the Lonls shall not be (H>in- 
pelled, nor shall have power to give judgment 
upon a commoner, have sufhciently secured tlie 
liberty of the subject from im|)eachments. 
Nor IS it the question before your lonlship, 
whetlier you shall judge of any matter that is a 
right or privilege of parliament ; here is no- 
thing beforp you tliat was done in |NirIiament ; 
but this is an*indictiuent for high -treason, com- 
mitted by Fitzharris in this comity. Now, my 
lord, as that is n<it the question, neitlier will it 
be the question, whether an imiieachnieiit de- 
pending in the House ot' I^irds against a com- 
moner, by the Houho of Commons, will bar 
this Court of juris<liction ? For though they 
have entered upon it, and dcliatetl it at large, 
and seemefl to obviate the objections made to 
that if it liad bc;en a question; as by saying 
that the king hath no election, because this is 
not the suit of thf^ king, but the suit of the sub- 
ject : 1 will not now ex inxfituto argue that 
point ; but 1 will humbly otfer a few thiuKS to 
your lordship's considtMiitioii, autl I shall take 
my hints from them. They say, the House of 
Commons are tlie grand iuqut'st of the nation, 
to enquire of treasons and other high crimes, 
and they make these presentments to the House 
ofLowiM. Now when such a prescntmciAt is 
made, it is worthy consideration, whetlier it be 
not a preseittnient for the king ; for an im- 
peachment does itot conclude as an appeal 
does, but *• contra ligeautiie suse debitum, ei 
^ coronam et dignitatem domini regis ;* so 
far it is the king's suit. In an imi>eachment 
the witnesses for the prisoner are not sworn, 
the prisoner hath not counsel for his lite in 
matter of fact, us in cases of ap|K:al, at the 
suit of the subject, he hatli. The kiug may 
pardon part of the kcntepce, it was dona so ia 



319] STATE TIUALS, 33 Charlus 11. l6Bl.^Proeeeding8 again$i [32< 



Rich, the end's time, and it was done so lately 

in my lord Stafibrd's case ; but take it tor a 

supposition that it is the suit of the people, 

yet tliat cannot preclude the kinff from liis suit 

neither ; tor ut common law betore the statute 

of 3 Ilcn. 7, where a man had an appeal for 

murder, the kin<; had not his bauds tied up, 

not to proceed upon the indictment : it had 

bi^n used so, I do agree, and so it is 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 plcailed in bar or an in- 
dictment, that the indictment was within the 

year, but the kincf used to stay out the year in 

tkvour of that suit. But since the statute, the 

use is otherwise ; and the rf>ason why they 

jproceed immcnliately is, l)ecause now 'an ac*- 

qnittal or an attainder u|>on the indictment is 

no Iwr to the appeal, but the party may (ro on 

in his appeal. I mention this, bt^cause the 

consequence wliich they ui^e as surii a dismal 

one, will be nothinur ; which is, what if hv. 

•hould be acquitted hei'e, he could not plead 

* autcr foite acquit,' so would be twice broujCfht 

in jeopardy for the same ftflenw. For it is the 

flame in all cases of ap|Knds, a man comes in 

jeopardj' twice if lie be indicted within the 

\t«r, and attainted or arquittetl within the y<^««r» 

it is no bar to tlie appeal. Hut tliis is not hke 

the case of an apijcal for minder neither ; for 

thoiuv-h it hath been used discretionaily in the 

4'onrt to stay tlio suit of the kinp, and to pi-efer 

the suit of ti»e snhjV'ct, it was then lHx*aus<* the j 

subject hail the- Hj'st and nearest, roreem. .is } "uiflit ni»l tohatc jrivenjudjfi^entfbr 

the son in the daith of his father, and it did ; tiff', iiy n-ason the indictment was sufficient, 

mostly concern liini to prose cxur it. Tlu* kint; | it uns pK ;idcd. in that it did not say that Sfacp 

is concerned a*; tin* fiutiitain of Jn^iico onl\, to j perton \uis within the veri«^e, which was n^ 

brini;- otTonders to cnndip^n pirl^linicnt ;* Imt i ocssnrv l«» entitle the coroner of the verge to i 

the nearest damai.n>. and the first t*> In pre- j jiii*i»dirtiun, iNM'ause )>eing pleaded with le* 

ferrcH), was that of tlio ]ia'iiy \^tio ha«i i.ist his j lircnce to the ix'cord upon Nul tiel recod 

relation. Now the ror.son of that turns qniti* - pleadetl, :Mnl ihe iv'corfl thereu|ioii brought ii, 

contrary he«' : for as in that rnsc l^e snbjivi i that deir«.t uiimht liave been cured. 

had the near* Nt iniiuM ni iu the lo*s of hi^ f;ith('r, ! 'Z. 'i'hui no avt ruicnt of iact can supply tlMl 

and so was b.^ intitlf".! tn tlir suit ; bO in this j ^viiich should apiM^arupon re<x>rd, tlie.rctorethi 

case that x<m'v n isoti ui:! have the kingf\ suit ! aveiinent that Slicpperton wa.*^ witJiiu tiie Tem 

to be prefcriX'd : lor tht-iv is no treasiui hut did not mend the mutter, though coiifessod by 

ogtiijist the kin^, and in treason against hini<;clf, the deunirrer as much as it is iu thisi case, thit 

the kinc" has the nearest conv.'crn, and th<> it is the same treason. 

wroni? IS primarily und oriirinaUy to hiiiiscif. liut they say, th-.M*o is a difleiTncc b e tw e a 

And tiie subjeins dimia^e is hui u*coii««ec[uen<*c this case ai;d tfioso which 1 have put ; fortkl 

of that, as all liuit to the kiii<* must ni'cds ' it is the etvurse of parliament (of uhicb yoor 

hurt the people. So tlie kin(r*s suit is to he j lorilsl;i|ismnst takv* notice), toimprnichs;eneral; 
preferred here, as tliesutijicts wd> in the otlier ; so thev coiild uot hive pleaih-d ot! ;*wisetfalB 
oase. ! the\ have don<«, rinl<'ss tiu*y luul pie&dedit 

Now forthf objictiou that bar been made , f otherwise than tiie cases v*cre: this re — 
That if yoi» try thUina:i, U)xinthe<aniur(nis<m ■ iiolds rather tli:* other .ray ; for if in any 

Tin ir j such a pnerul \v;.v ut pl«u!in£r with 

ere ■ 
knoni 



liament (for so it was in fact) that no pro6e< 
cutioD might be upon them ; then certainly 
thev thought the King^s Court might procn^ 
without doinff so. 

My lord, f will mention no more upon thii 
matter, but leave it to yom lordship's ooa- 
sideratiou : but as to the rorm of the plea, I dc 
conceive, with submission, it is not a fonnsi 
plea. 

\Vc know here of no form of pleading an io' 
dictment, but what does set fbith the indict 
ment particuhir ; the precedents are so, h Is m 
in Vaiux's case, and ail the precedents that I 
have seen : so is the precedent in Bast. Ent 
where in an appeal die defendant waged battle; 
the plaintiff replies he Wtis fonnerlv indaded, 
he sets forth the indictment tiarticulurly. Al 
the precedents are so, and the law-books ri^ 
solve it must be so ; as Wrott and Wttg^ 
case, M'herc the defendant in an appeu d 
murder by the wife pleads, that he was in* 
dieted for*niunslaughter before thectnroiiR d 
the f ei*g«, and coroner of the county, for kiHiig 
the husliaud at Slieppcrton, in the county « 
iViiddlesex, and had his <:lergf^' with i^etrenosti 
the rcconi, aud the usual averments ; with thit 
fartlier, that he averred that Shepperton at Aa 
time of the indictnuHit aud death was witbia 
the verc^e. To which the plaintiff demimad^ 
und jurl^ment for the plaintiff. Kow tut 
thiui^ are resolved by this judpnent. 

1 . Tliiit it Ls neeessaiT to set forth the whife 
record of tlie indietmenr. or otherwise tiMJ 



you may try the l^nls in the- Tuwer. 

case is ififlcfcnt, as hath Urn j Iresuly ol»sei-ve<l ' to the record wore to h.» admitted, it w 

by Mr. Attornf\\ ; r^nd thai which h.is luH^n . case of an indiriinent. because the Court 



done by the J-ovds iu iImI case, to me u»»ts 



ihere is i>:> inilict.nent but what do» pailjcih 

li when produced, 
but here if tki 



rather seem to imply, thni tin** trial ni.iy l»e in larly s< i t'orili the I'eloo}, which w 

this case. I^n- if liie l.otos after an ini{NL(-h- is iraj>uhle of hoiniy ajrplieil : but 

meat brouc^ht up agaiuist thf fi\t-. 1-ionU in tlie i rtnxird In* lu-ouffht in, it will no more 

Tower, and after the sperial manner in the ' the matter of the impeachment, than the pka 

■llickrs which doi>s asct^rtan:! upon what they ' does already. And whereas thev say yoV 

4o prooeed, have thought tit uotwithsUuiding to lordship is bound to take notice of' the i 



the indictment by Certiorari into par- 



of parliament, so your lonUhip wiU take 

•la 



321] STATE TRIALS, 33 Chables II. l6s\ .---lidward Fitzharris. 



t«o, that it is oot the course of parliaments to 
try any iiian upon such ageoenil impeachment. 
I DP«er beard of any man (I sfieak it with sub- 
Dttsinn to them tliat know better) that was 
bmifiit to plead Not Guilty upon a general 
im^chment of hi^-treason ; that is, upon 
ifac Cominoiui bare saying, we do impeach such 
«a «Qc of bigh-treason. I know nunc that 
etw vasbrou^t to answer that general accii- 
lalioa. 

And DOW, my lord, as the plea is nouglit 
fvMl lettiiig' out the record, so is the aver- 
Mii, with submission, insufficient too. For 
ibngh be doea arcr. That the treason in the 
isicfent, and the treason for which he was 
■ pt s rhgd , are one and the same, and not 
dfnn affirmatively and neg^atirely ; vet as this 
CMe is, he ou^t to hare said, That the treason 
lirwhidi he is indicted, and the treason meu- 
lincd in the impeachment, is one and the 
mm: For if he was impeached generally for 
hjth mssnii. witliout mention of particulars, 
it ii Ifossibie to be refiuccd to a certainty : So 
ii ii an averment of a fact not capable to be 






Because, willi submission to these 

that have said it, the debates of the 

af Commons are not to be given in evi- 

, and made public to a jury : Nay, they 

wtt mut alsrays possible to be reduced tu a cer- 
iMy, as the circumstances may be ; for they 
da SSI shravs particularly resolve u|Mm what 
tbey will accuse before they go up, 
enl allegation serves the turn : So 
averment is not triable ;i;cr /loif, he- 
the case may be, it may not be capa- 
Ui af sBT certainty from the debates of tlie 
H«K af Commons. 

AaMbcr reason is, because, by tliis way of 
■kafa^sroceedings must be staid for treason, 
ttaqikmbaequent to the impeachment, . which 
■• wmm yet has pretended to iay : For suppose 
a general impeachment lodged, and a 
m aflema rda committed by the party, I 
■o man wiU say, that the Uoiise of Com- 
J when they bring up their speirial niat- 
caanot malTe even tlus subsequent treason 
article upon that impeachment ; neither can 
at he said that such averment as this is, upon 
wmk plea pleadeil to a? uidictment here below, 
VMM be repuffnant, because there is no time 
il aU laid in the impeachment as it is here 
ded, nor no time when the impeachnifiit 
Iffwight up ; so that it cannot appear to 
Mttt, whether tlie treason in the iiulict- 

_^ be Bub8ei|uent or not : The conHMiuence 

irf|AMi is, we must try whetluT <he House 
mCmsiiiohs, upon this general inip«*achmrnt, 
to proceed to try him fur a fact 
after tlie impeacfiment curried up. 
%pd^ tbb would be to affirm, that a nmn 
■pjisrhrd in parliam«iit shall nevor l»e 
br any ofleoce ; it would be like that Pr'i- 
CUruule wliich they made use of b) 
cs from ptuiishiueut for all 





^ my Wsdv^wc do thiik upon the wltole 

fOL. Till. 



[322 

matter, without enteriug upon the debate, whe- 
ther a particular impeachment lodged in tlie 
House of Lords) docs preclude the king from 
his proceedings, we have a ^)od erase upon this 
plea ; for that is not a question necessary to be 
' resolved, though it be not grauteil by the king 
neither. But the question is, Whether this 
be a formal plea, and whether here be suffi- 
cient matter set forth upon record to bring that 
other matter into question, and tic up the hands 
of the court? 

Serj. JcfferUt. My lord, there hath lieen 
already enough spoken in this case, I shall de- 
sire oiuy to offer one word to tliat single point, 
viz. the informality of the plea ; \\liich I take 
to be the sole question in this case : For to 
argue, whether because there was no bill 
passed, or t]c<Tee mafle in the House of Lords 
^tliougli the articles had been carried up,) the 
impeachment did not fall to the ground by 
the dissolution, 1 conceive altogether impro- 
l>er ; for 1 think it doev not aflect the ques- 
tion : Though I desire to take notice that sir 
Fr. Winnington, Mr. Williams, and Mr. 
Wallop went all mistaken : For there were no 
such concessions made by any of the king's 
counsel the other duv, as they alledn^c ; be- 
cause we did not think it to be the question, and 
therefore made no discourses aliout it. 

But, my lonl, 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 tliis time. 
Thev cite the case of the I^rds iu the Tower as 
a judgment ior them, whicli sciems to be a judg- 
ment against them : For by the Lords granting 
a Certiorari to remove the judgments into par- 
liament, they seem to be of opinion, that not- 
Mithstandhig they Mere impeached l>efore the 
Lords, yet there might have been proceedings 
below upon thi»se indictments, had they not 
been removed ; and there they remain to this 
tiay. Nay further, to those impeachments 
they have* pleaded to issue, which is read for a 
trial : But in the case at bar, there only is 
an ai*cusatioii, without any further proceedings 
tIieix3upon. 

And as to the case of my lord Shaftesbuir* 
that makes strongly for us as 1 conceive. Mr. 
Justice Jones's opinion was taken notice of by 
sir F. Winnington, that they would not meddle 
by any mcaiiK w ith matters' depending in par- 
liauH'iit : But I must roiiiemlier, he then gave 
this rea.son for his opinion, because the parlia- 
ment was then in being. And 1 niu^t hmnbly 
put your lordship in mind, that the whole 
court did then declare. That it* the parliament 
hail been dissolved, they would have said some- 
thing more to that casi'. I do not say, that 
they would have given such or such a judg- 
ment ; but I attended at the bar at that time, 
and I Hpp<'ul to the memory of the court, if the 
couit did iH»t then make such n d(*cluratifln. 

But now to the question : With(»iitall per- 
adventure, the cases cited by Mr. Pollexfen are 
true, if 1 brintr a gencjral I' dt bitatus unhmp^ 
iif for wares, sold and delivered, and after 

Y 



33d] STATE TRIALS, 33 CaaKLES II. l6S\.^ProceiihigM&gahul [^U 



hnng a particular Indehitatvt nttttmjtsit for such 
and such warrs, naming tlie particulars, the 
party may conic and plead in bar, and aver it is 
for tliesanie thin^; and it is a good ayermtint, 
because there is siilTuient matter set forth in the 
record to support such an aiermcMit : For the 
donht is only, whether the p:irticiil«ir q^oods men- 
tioned in the second, be not the anme that \t'ern 
intended under thost! genenil words (goods and 
merchandizes) in the fiiTit. 

But suppose there had been only an nccoimt 
brought and no dectaration put in, could then 
the oefendant have picadeil such a plea with 
■tich an averment, whf n thtTe was not suflici- 
ent matter of nrconl sot forth in their pleading, 
whereby the court mii^Til l>e able in give a. judg- 
ment, or pul it into a way of trial, whether it 
was for the s;m!c or not. 

And w it nut so in this ease ? there being but 
a bare Hcrusalion : l^or I still keep to the infor- 
mality of the pleading, and I takt; it not to be 
Biich a dangerous case, as the%' gentlemen of 
the other side do prcttrnd, for you to determine 
it. For I am sure it \%iH lie better f<n- the court 
to ansvirer, if ever they shall be recpiired, that 
they have perf<»rmed*their dutt, and done jus- 
tire according to their consciences and their 
<mttM, than ever to \k* afraid of any threats or 
buu'lieai'N irom tlir bar. 

For would not they, by tliis manner of plead- 
ing, put upon your loi-dnhiiis a difiiculty to 
judg<», withmit any thing rontiiined in the' ini- 
{learhnu nt to guide your iudgnu^r.t, whether 
the prisoner l>c ini))earhefi for the same thing 
for Mhic'h he is inclirri'<l 1' Way not the trea- 
son intended in this ini]H:aehme'nt be for clip- 
ping or coining of numey ? for it is generally 
uaid to btMMdy for High-Tn»ason. How comes 
this then to be hel|>ed, so as to l>e any wav is- 
anable, and Im> triinl ? >Sliall it be by 'that way 
which >Ir. Hallop laid down, that* if Mr. At- 
torney had taken issue, the jury must have 
tried the i|uestiim by having the deliates of the 
IIouw* ot Commons given in evidence ? Cer- 
tniuly that cannot l>e, my lonl. If there were 
but one sort of trenson, there might be some 
colour for this sqrt of pWading ; but there are 
^BMlip «i«J-^i« *- ^ M B B a , uul bow is it capable 
*^ ^ nrofa the intentions of 

li-Wbce they are come 

HflAre cannot be given 

Milulylrouglit intojudg- 

opontiie informality and 

eadinff only, and m'eddle 

, wheUier on impenrhment 

is raperaedes nn indictment 

« P For wc say, lliev hatv 

Mtantially. as to enaf4e the 

I the onoAion : And there - 

' lordwip's judgment, that 

TCfRllM. 

biu My lord, there has be«n 

"time almd}' t^cen up by 

bal Inre arguni before me, 

'ttet in wh«» I hate tony. 

Wu Ait time, how tar 



fbrth the Comn^ons in parli&ment may impetdi 

or not impeach a commoner, beftfe the Lords 

in parlian^ent, or where the Lonls roav admit 

or not admit of such impeachments ? tliat m 

not the case here^as I humbly conoeiTe, nor 

will I meddle with it: I shall only speak to Aa 

validity of the plea aecording to mw. Now, I 

<<ay, that this plea of the prisoner as thusple^i 

ed, cannot be good to out this court ofjurii^ 

diction : For iirst, the prisoner cannot be ad- 

mitte^l to make the avermen£ in this pleai thai 

the treason mentioned in the irapeaimneBt b 

|)arliament, and that contained in tnisindictBMi 

IS the same ; for if, as tlie gentlemen that ir> 

gued on the other side, urged, tliat this ooal 

nar.t take notice of the proceedings and lawd 

parliament, then you will take notice that m 

person is there tried upon a gpneral impeach^ 

ment of treason. 8|ieoial articles are ahnM 

first exhibited : In this case then eithar ni 

House of Commons luive carried iip special m» 

tides against the prisoner to ibe liorda in par* 

liameiit or not ; it* the Hou^e have done it, 

then the plea might have been |ileadcd better ly 

setting fortli the artieles(wliich is iNirt of whil 

they say On the other side, that it ooM bi 

pleaded no better,^ fi}r then it would brm ap 

peared plainly whether tlie treaaon wen Mm 

same or not. If the atliclcs are not canM'ifl 

shall it lie in the mouth of any particnlar' M* 

son to say, what articles the Commona iA ra* 

liament woultl have carried up ? SHall avf jb& 

gle person be admitted to say, what the atftm 

would have done, before the House itself iMI 

it ? In cases of imi>eachments it lies in tibe^ 

cretiou and judgment of tlie Commona upon ^ 

bateto exliibit w hat articles they in their %riMkMI 

shall think fit ; and sure it shall never come, lliil 

any particular person shall limit them to tbii 

or* that particular treason before-hand ; i# 

surely. 

Now suppose in sudi a case as this, iM 
such a plea pU^detl, the Commons upon dcH W" 
ration slionld carry up artides qnite diAiHli 
sudi a plea then u-ouid appear Xn he a stark Mut 
and the pleading and allowing of it, an appBK# 
delay of justice. So that I conceive, my bid,, 
the prisoner shall by no means l>e admitted (aiP 
indeetl can it l)e, to ai^erthe iiitentkm affllf 
House of Commons, ti'hich cannot be tried)lH^ 
fore they have declared it themselves; arft 
therefon> I conceive the plea to be naught ik 
that reason. , 

fint,. my lord, I conceive that the nriMBO'ii^ 
plea is ill tor another reason, because Uie mK 
in thist*ase, by any thing erpressed inthiiflttt 
cannot diAcern nor take notice whether itbeilt 
sB»ne treason or not. 

Now the reason w hv tlie record, as tiH ttSt 
is, on;;ht to bealledgeck specialK', is beMOsetlN 
matter rnntained in it may iifainly appear tt 
the court, and then bv that meairs tlie ctMrt 
miglit.j*>iilge wiietherU be the sametrrassn #r 
not. Sow (reason generally aliedged ia tti 
imprachmeiit. is the gt'nus, and the paitiiahr 
treasiui nu'ntioueti in ihe indictment « oat? > 
species, and the avGnuent in the idha kj 4hit 



STATE TR! ALS, S3 Charles II. l6Sl.^EdwMrd Fiizhmrh. [3$S 

tioD ia barely upon thepleading before m, Whe- 
ther we have a suliicient pleading; of such aa 
impeachnieni as can foreclose the bands of the 
court? And as to that, we shall lake som« 
reasonable time to consider of it ; we will not 
preci^Mtate in such a ca$c, but deliberate well 
upon it before we give our judgment Take 
back your prisoner. 

Ait. Gen, Before he goes awa^', we hope 
you will set a I'easonable time, as short as you 
can, to hare lilm come again, for your judg- 
ment. 

L. C. J. Mr. Attorney, we can send iof him 
when we please, to come hither bv rule ; you 
see tliis business has come on in the busy part 
of a term, and it is impossible for tlie i^nrt lo 
attend nothing bat this, we will take some rea- 
sonable time* 



i-Kod tbe fpeciet is the same ; which 
and if aUowedi^ tends to hood-wink 
the court, instead of making the mat- 
for their judgment. 

uy bt to be plain and certain, because 
upon them alkidged, is to judge either 
estates or lives $ and for that reason 
r ought to con^ phiinly and fairly be- 
, that wrong may be done to neither 
ysmaan of tiie obscureness or doubtful- 
le ailegation : If therefore (he hood- 
rought insteail of a plea, it ought not 
^"ed. Awl thcreiore for these ^reasons 
I have farther to say, has been 'already 
hers) 1 conceive it ou<;;lit to be over- 
bum kly submit it to Uic court. 
• You have done your arguments, 
I, on ail bides ? 
I, Yf^, my lord. 

r. JLook you, gentlemen, PU tell you, 
Uken ap a g^at part of our time, 
r intended, when we assigned four 
I Mr. Fitzharris, that they uU should 
nal arguments in one day, it is the 
that ever it was done ; but because 
fou preaiS it in a case of blood, we 
ing to hear all ^ you could say, that 
M not al^rwards say, but tnut you 
It heanl on all sides. Hut in truth, 
u you, you hai'e started a great 
ngs that are not in the case at all. 
Bothiog to do here, whether the Com- 
•ne at this day can impeach for trea- 
eonunoner in the House of Lords ; 
nothing to do with this, what the 
sisdictioo is, nor with tltis point, whe- 
■■peachnient in the Loixls' House 
e Lords arc poKsessed fully of the im- 
■I) does bar the bringing any suit, or 
he proceeding in an inTerior court: 
i we liav^ a case that rises upon the 
ft; whether you have brought hei'c 
I a nit&cient plea to take away the ju- 
I <^ tbe court, as you have nfeadod it, 
B be the sole point tliat is oetiire us : 
have heard what exoe|ition9have licen 
the form, and to the matter of your 
:. We do ask } ou aijfain, W licthcr you 
Ni are alile to mend your pleading in 
ig, for the court will not catch yc»u, 
ivre any thing wherein you can ainenti 
rin matter or form ? If you will let 
r it, we shall cousi«ler of it ; 'but if you 
^ it' you abide by this plea, then we 
k it is not reasonable, nor will be ev- 
ff fi ia a matter of this consequence 
Mr jodnuent concerning thiti pU^a prc- 
ti the cases cited cunceniiiig ivLvts 
Hj afami ent, and where tliey have en- 
Wt !■ have them examined here, are 
III th a purpose at all. For plainly, we 
ll^irtD owwlves a jurisdicUun tu cn- 
fMh^ittm: For words spoken, or 
Imp ij theilomniOBa Housii, or in the 
■**4p aoBe to question here, nor for 
T that iMttune, which takes off most 



Then Fitzharris was carried back to the 
Tower. 

On^Tuesday, May 10, Mr. Attorney moved 
the court to appoint a day for their judgment on 
the plea, and for Fitzharris to be brought up, 
which they appointed to be the next morning. 

And accordingly on Wednesday morning, 
May 11, he was Drought from the Tower to 
Westminster- liall. 

Ait. Gen, My lord, I pray that Fitzharria 
may be brought to the bar. 

L. C. J. ^Vhere is the Lieutenant of the 
Tower ? Bid him bring Fitzharris to the bar, 
(whiclrwas doiui.) 

Ati. Gen. My lord, I pray your judgm^ 
on the j)Iea. 

X. C, J. Mr. Fitzharris, you have been ar? 
raigned here for High Treason, and it is fur 
endeavouring and compassing the king^s death, 
and other treasons, siKi'iully liientifjiicd in this 
indictment ; you havepleafltnl here to tlie juris- 
diction of this court, t|uit there was an impeach- 
ment against you by the C^omuious of Eng- 
land in jmriiameut, before the Lords, for the 
crime of Ifigh-treason ; antl you <lo say, thiU 
that iin|K>ai-hment is yet in force ; and you do 
sav, by way of averment, that this treasoii 
wfiercof } ou are now indicted, and the treason 
whereof you were impeached by the Commoufi 
of England, betbre the ^ids, are one ai|d the 
same treason. And upon this the Attorney 
General for the king hath demurrctl, and you 
liave joined in demurrer: And we have heard 
the arguments of your counsel, whom we ad- 
signeu to argue it tor you ; we have heard them 
at large, and have cxjusidered of v our case among 
ours4?ves ; and U|»on full consHlvration and deli- 
beration txjnccming your easi% and all Uiat hatn 
be<rn said by your counsel, and u|M>n <routerence 
that we have had with some other of the judge|f, 
we are three of us of opinion, that your plea 
is not sutKeient to bar this coiut of its jurisdic- 
tion ; my brother Jones, my brotlnT liaymcmd, 
and myself, are of opinion tiiat your pli^ i» in- 
suiheieut, my brother Dolbcn not hiring resolved, 
but doubting eoneemiog it. And therefore tha 
court does oider and award, That you UiaQ ai^- 
swer over to this treason. 



3^7] STATE TRIALS, 33 Chables II. l6S\ .^Proeeeiimgs 0igabui' [328 



CI. of Crown. EH ward Fitzharris, holdup/ 
thy hand. 

Fitzhnrri*, !*Iy lord, 1 desire I roav hare 
liberty to ad\ Lse w ith my counsel before \ plead. 

L. C J. Ilr. Fil/lnrri5, \«h«'n you projHised 
a (tiffirulty \-ou hnd in a mattrV of law, the 
court woro uilliny; to assign you counsel ; be- 
cause' it Is known you cannot be a fitting per- 
son to aflviseyoursclf conccmiugf the law. But 
an to this, Wf caiini*l assign you counsel ; it is 
only a matter of f;«ft. whether you he guilty or 
Bot guilty. I'herr fore in this case you cannot 
have coun(-eI allouedto ft(t\iseyou.* 

Fit ah. My lonl, I di-sire, belbre I plead, or 
do any tiling of that nature, that I may make 
an end of my rniifL'>sion before yoin: lordship, 
and some of the privy counril. 

L. C J. L«M»k y<:u, Sir, for that you have 
trifled with us airca'ly ; you prc't«'iii1e(l you had 
some scruples of comicieiice, and that you w>ere 
now become another man, and would revoal 
and discover the whole of this design and Plot, 
that 3'ou are said to Im* guilty of here : but you 
have trifled weveral times concerning it, and'wc 
can say nothing ccnceming that now ; we must 
now have your plea: ifatlerwanls you ha«c 
a mind to confess and he ingenuous, \ou may 
do it ; but now you nuist eitlier plead, or not 
plead. 

Fitzh. My lord, I have some witnecaes a 
great way on, and I desire time to have them 
ready for my defence. 

Cl. of' Cr, £d%vnrd Fitzharris, hold up thy 
hand (which he did) ; thou ha^t been indicted 
of high-troason ; upon that indictment thou 
hast been an-aigncf I, and hast pleaded to the 
jurisdiction of tills court. To which Plea his 
majesty's Attorney- (ioneral hath dcnnirrfd, 
and thou I.'st joinc^l therein: and upon the 
whole matter, this C.'ovirt, upon mature and 
considerate deliberation, is of opinion, that thou 
oughtest to answer over. How sayest thou, 
art thou Guilty of tho lii«;fh-tn>nso'n whereof 
thou hast br«'n imlirti'd, and hast been ar- 
raicrncd, or Not (juilty ? 

thtzh. Not fiuilty. 

CL ifCr. Cul. I'risl. kc. how wilt thou be 
trieil ? 

Fitxh. By ffod and my country. 

CL ofCr, G<»d send tlit^e a gooil deliverance. 

L. C. J. Now il you have any thintr to move, 
doit. WeconKl nor h(^ir \our moticm till you 
had" nler.ded ; tor the ni« tliod (ff the Court must 
be (ifisfrvcfl. 

Fitzh, I h:ive sortie witnesses at a distance, 
my lord. 

1*. C J, Wh( TO arc your witnf*««es ? 

Fitzh. f lm\ei)iif- ultiu's^in ll(iil;in'l, a very 
maieriul om* ; i!:jit i am much contenied to 
have tor my liCc. 

.rusti(*(r .Aw/ifj?. Vi lint is his nanif !* 

Fitzh. His ntiiiie is Slru::nl, my lonl. 

L, C. J. \Awk Mm, !Mr. Filzharris, T will 

tell ymi, reasfi:i:i[i1e time is allowed to all 

"men 'to mnketh».ir tlefence in; but when a 

man hi m Holland, I know not what time you 

will take for that. 



Titzh, What time your lordship thinks fil 
for a man to return from thence hither. 

L. C. J. Look you, Mr. Attorney, why 
should not we allow Mr. Fitzharria time foi 
his trial till next term ? 

Att. Gen, I think lie bath not otTered any 
thing to entitle him to it. He doth not tell as, 
and 1 would fain know what the witnesees iiill 
prove. 

Justice Dolben. It may be, Mr. Attomer, he 
will ronfpss what it is that witnen can prove, 

Att. Gtn. For the whole proof in a case oi 
treason U*^ on our side. "^ 

L. C. J. Commonly, and prifnafacie^ it dod 
so ; but there may be some thin^ that the 
pri^ioncr may gi^-e m evidence for himself ditl 
may he material for him to urge for his deAnee. 

Fitzh. 3fy lord, L know not whether it be 
safe for me *to tell what he can say. 

Justice Jvncs, l*hen yon resene it wholly it 
your own judgment, whether he be a mslml 
witness, or no ? 

Fitzh. If m^ lord chief justice pleasei, I' 
will acquaint him ill private with it. 

Att. Gen. 1 neier saw any good efleet of 
these private proceedings. If he have My 
thing to ofler, he may do it publidy, in IM 
face of justice : and therefore 1 desire be mm 
be tried this term ; for he hath had a wWi 
term's notice, and time enough to coBate 
what persons are material witnesses for hilL- '• 

Justice Jones. Unless he do shew goodeiMi 
to the contrary, he must be tried this tern. 

Att. Oeii. And, my lord, where it is in At 
same coimty where t*be fact was comminsdi 
there is the less reasi>n to stay ; criminals it 
high-treason, the fact must be plain and Cfi- 
dent against them. 

L. C. J. Look you, Mr. Attorney, peradfvi- 
ture he hath Ihh^u made to depend aiion kif 
pU^, and hath l>een advised so to do. 

Fitzh. Ves, my lord, ami have been dM 
nrisoner, and not allowed to s[»eak with ilf 
iKidy. 

L. C. J. If so, then it may be a smptiil 
upon him. 

Fttzh. My lord, I have been allowed notUif 
to prepnn»fi>rmy defruee. 

Soltcitnr Gtncrai. My lord, he ought to kl 
pnuitkil for his trial this term. I do not knoffi * 
my lonl, what witnesses he can pretend II 
have ; the fact was done in Middlesex bfl% 
and the pn>of of the riiTumstanci*8 of thttM 
do arise here ; and I do not know what iV* 
))rise he ran iHinijihiin ot*. As to the witncali 
tells you of, that is in Holland, he doth nsClil. 
you to what pur|N»se he is a witness ; so M 
you may know whether it be material er itt ' 
I know very well, my lord, in the Old Baif^ - 
when the priests did nrg(^ it, that the}' had OT 
no'^ses l>eyond the s<ni in other countries, tM 
WfrTc not suflered to delay their trial wfi 
siu*h a pretence. We umst sniKmit it to JI0 
lordship^s discretion : but we suppcise if ^ 
not be a pn^eipitous fn-oceeding, he hiifli| 
notice of his trial nH this tenn. ' 

L:£. J. Mr. Attorney, truly, sinee h»|il 



3291 



STATE TRIALS, 33 Charles II. iGSU-^Edward Filzharrk. 



[£30 



tradfl lie is Riiqirised, md hath depended upon 

lus plea, and hath witnesses that require some 

inr to fetch, we think it reasonable that he 

dbMid have till the next term ; and we will 

Mr it till thou. We are all of that opinion, 

toeciany it betnf^ snrh a little delay) to enable 

hJB to liave what witnesses he dotb pretend 

tikiTe. 

Att, Gen, My lord, I never dcsirwl in tliis 
OK, nor ui any other, nor ever shull do, that 
justice be precipitateil. I know these opi>n and 
6ir tiiaSs proceed with siieli i^ual steps to all 
■KtiGS, that we need not be hasty ; and there- 
me, if your lordship be of that o*pinion, 1 sub- 
ail to it, uo it be the first week of the next 



LC' J. The first week it cannot be. 

All. Gtu. Within the first' seven daj's, I 



L. C. J. Tlie first Thursday in the term. 
Aid take notice, Mr. Fitzhariis^'that is the day 
appointed for your trial. 

Fitsh. I desire liberty to see my wife, and 
hire a solicitor in the inean time. 

JL C. J. I will tell you, for that, 5Ir. Fitz- 
knn, the Court would never deny any thin^ 
of thai nature to any one in your condition and 
cmimstanees ; but your wife makes an ill use 
of the liberty we cpranted her : and if she do 
mike an ill use ofit, then tlie Court miiM re- 
smin her, and hold their hands over her. If 
we were aatiafled she would use the liberty 
lawfully, aofl not abuse it — -* 

Rtzk. -My lord, 1 am sure she will use it 
kwlidv hereafter, and make no ill use of it. 

It Cr. J. Look you, upon her good usage of 
TtLj if die will tilirly demean herself, and not 
aboKil again, we are willing to take off the last 
rule, aai the shall have the saifle liberty ' she 
liailbeAie that rule. 

Sd. Gem, Whh this, if your lordship please, 
we desire there may be some other judge of 
her prudence besides herself, and the lieutenant 
of the Tower be by . 

FUskM, My lordVl desire I may have a soli- 
■cilor ; tor he was never allowecf to come ami 
speak to me, though I hail a rule for him. 

L. Ci J. Look you, as to your counsel now, 

iriiicfa was the main reason why you pra^-ed 

a solicitor, we cannot allow you them any 

nsie ; tor now we are come to a matter of fact 

edy, nnd we cannot by the niles of law alk>w 

^ CDunseL . Therefore what need you have 

sfa solicitor, I cannot tell ; his business before 

vss to go from vou to the counsel, and from 

Ihem te you, which is ceased now. But this, 

Mr. Aitomey, if he have a desire to see |)apers 

isd would 'send for any papers that <-oncem his 

Menee, so as thcr contain no new treasonable 

Dsttera and contrivances, he ought sure to have 

Ihem; and If he have papers at^ his hoase, or 

aoy where else, which he desires to make use 

«f m his own defence, being inspected by the 

ieaten a n t ,to see that there be no matter of evil 

contained in them, he may have one to do that 

for him without any danger. 

- Sol* 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 
writes tratrts of law : but any thing material 
for his defonce I am not against. 

L. C. J. Mr. Aitomey, you neeil not fear any 
harm will l>e that ways : for he is not to sj)eak 
M'ith him alone. 

Mrs. FUzharris, I hope his solicitor may 
come td him to take instructions how to send for 
his witnesses. 

Just. Jones. You can tell how to do that, 
surely, without a solicitor. 

L. C. J. Just as the last nile was, let there 
be another rule made : for he must have all 
just ail vanta^f^ to enable him for his defence. 

Fifth. I hope 1 shall have a rule of court to 
make my witnesses ap))ear. 

Just. Dolben, That you may have without a 
motion. 

L. C. J. We will give you any thing that 
will enable you to make a iair deience. 

CL of the Cr, He shall have sub|)oenas for 
Ills witnesses. 

L, C. J. Then, Mr. Fitzharris, you must ex- 
pect no other notice. You must take notice 
now, that ujion the first Thursday in the next 
term, you are to receive your trial here. Take 
the prisoner back. 

Att. Gen, In order to his trial, I desire the 
sheriff may bring in the freeholders book to tho 
clerk of the crown, to strike the jury. 

X. C. J. Mr. Attorney, we v ill consider of 
that, how far can i«e do that, and the course of 
the court shall l)e observed. But I doubt how 
we can. 

Ait, Gen. That is the practice in trials at the 
bar. 

L. C. J. In civil causes, but not in criminal, 
that I know of. 

Att. Gen. AVe have reason to desire it ; be- 
crausewe arc afraid of some practi<-e in this 
cause, and fear there may be some o<ld carriage 
in the return <»f them. 

Fitzh. May 1 not see my v.ife before I ^ 
hence ? 

L. C. J. With all our hearts ; she may go 
to yon, and with you, Sir, if you please : wc 
wi(l not hinder you ol' her company, so she carry 
herself fairly. 

Then the Lieutenant took back his prisoner. 



The Trial of EDWARD FITZHARRIS, at 
the King*s- Bench, for High^Treason, 
June 9, ICaj. Trin. 33 Charles II. 

0\Thiir«lay June 9, 1681, Edward Fitz- 
harris was brought to the bar of the court of 
King^s-bcnch ; and the court IxMng sat proct!ed« 
ed thus : 

Mr. Thompson. My loH, I moved you the 
other day, that before Mr. Fil/harris^s trial, he 
might give such evidence as he had to give 
agiiiust sir John Arundel and sir Richanl BeiU 
ing, concerning the death of sir Kdmundbury 
Godfrey, before he be convicted of treason } and 



331) STAT£ TRIALS, 93 Charles II. l6^\.^ProeerHngi eg^inf^ [532 

Ir. C. J. WiiAtsnervris written by her hu- 
bsuid, for help of his memory in matter of fiKlp 
let her do iL 

Fiizharriis My lord, I humbly bc|g^ my io» 
licitor raftv be by mc too* 

L. C. /. We allow of no solidtora in caaei 
of Ui«{b-trea40D. 

Ci.of Cr, Edward Fitzharris, holdup thy 
liand (wliicb be did) : Tlioae good men whica 
thou shalt bear called, and pcraoaally ap- 
pear, ^c. 

FuzfiairU. My lord, I desire they may bt 
disiinctly named as they are in the pannd, thai 
I may kuow bow to make my challenges. 

So/. Gen. My lord, i must hmnbly ofier il 
to your lordship's consideration, for the prece- 
dent's &akc, wuetbcr anj* person can aaaiai tin 
prisoner as to matter of fact ? 

L. C. J. Yes, and it is always done to tain 
notes for him to help his memory. 

tiaij. JeffiNui. But, myloru, I vouid ae- 
f|iiaint your lonlsliip what is the thing we fio4 
in this case ; here is a particular nola given ii 
to the prisoner of the jury, pray be sure to dpal- 
leng^e such and 5;iich, and aoirt cliallengip thi 
rest. God forbid but his memory AouU bi 
helped in inutteis of fact, as is usual in ^i^ 
cases ; but no instructions ou^bt to be^ mwu 
him, sure. And, my bird, the example hvIm 
a ^eat ^Tiy ; aud therefore we are in 3'oiir laA" 
ship's directions about this matter. 

FUzharrit, My lord, I hope ii is but Ju4t, fi| 
I have had all the disadrantagea in tl^ wocU. ] 
have been kept close prisoner, and have not been 
permitted to Lave any one conic to me, to hdf 
mc in my prcj»arr»tionfor my trial. 

Atl. Gen, My lord, I pray your judgmeiitii 
]K)int of law ; I doubt not yuu will do tlw king 
right, as \vv\\ as the prisoner ; I could nut gel a 
copy of the pmintl, till last night about tuar 
o'chick : Here is prt'pared a copy, with 



understood that it was the dn-ection of the 
<*ourt, that we mi^ht move it this morning be- 
fore conviction, that be miic^t declare upon oaih 
here in court 1^ hat he knows of that matter 
ajpainsi those gentlemeu : for after he is con- 
VKtsd, I believe it will be loo kUe for us to tbiuk 
of it. Mr. Godfrey hath a great deal of reason 
to desire what I now move, that his brother's 
murderers may be prosecuted ; and «ve hope 
all the favour that can be granted in such a 
case will be granted unto us : for thiTe 
hath been a design of tote set on foot, to make 
it be believed, that sir Edmundhury God- 
frey murdered himself, notivithstandi'ng that 
clear eridence that hath been already given of 
this mattei^ aiul notwithstandiiig that seicrai 
persons have been convicted and attainted upon 
chat evidence. 80 ihat ihese gentlemen think 
themselus oblii^.-d to prosecute the matter 
as tar as they can, and beg of your lordship, 
that what can be done for them may. And 
particnhiri^', that he may oerfert his discovery 
against the tu o named at liis hist examination 
before the grand-jury ; and that his examinatwn 
about them may now be taken by the court. 

L, C. J. Look you, Mr. Thompson, that that 
you moved before, had some reason in it, that 
be might be examined, and give evidence to a 
grand-jury, and we toM you he shoukl ; but if 
UMve be nievor a grand -jury sworn yet, who can 
he give evidence to ? Would you nave us take 
his enmination and afterwards give it in e\'i- 
denoe to the grand -jury ? 

Mr. Tkotnp. 'My lord, I only say, then it is 
our hard hap that he is not examined before 
agrand-jur}'. 

L. C. J. But do you think it is fit for 3'ou to 
mo\'e this now ? 

Mr. Thotnp. My lord, I understood it was per- 
mitted me by the court the other day, to move 
again ; anil I move bv the direction of my cli- 
ent, and I submit it to your lonlship. 

L, C. J. Vou know it cuunoK be granted. 
Go on, and sweai- the jury. 

FUzh. My lord, I bojr that my wife and stA\' 
eitor may be by, to help and assist my meniurv . 

L. C, J. Let your wile be by you, if ilie 
please, and if you think it is an^ advantage to 
you, witli all our hoaits; if slievwU, let her go 
down to you. 

Ct. if Crown. Cry cr, make an O yes : Who- 
ever can inform, Scv. 

Atl. Gen, 31y lord, I know not what the «*f- 
fect of this may l>e : if his wif'elH' instructed to 
instruil him, that ought not to be [M-miittod, 
with KuhmiMsion : Suppose she should conio to 
prompt him (and 0>r certain she is well docu- 
mentixed) that your lonlship uon't suffer. 

Serj. Jtffrriex, My lord, she coiai.ii prepared 
with papiTH in lier hand. 

Mm. Fi'ihdfir. 1 wun't slic^v them without 
m} lord's |«prniissit»n. 

*Xn C.J. If she brinjfs any pa|HTs that are 
drawn by counst>l, prepared for him, \wthout 
doubt it is not to lie ullo^t ed. 

Mrs. Fitzharris. No, no ; it is only my own 
little memonuuU^ 



and marks who he should ehalleuge, and w|ia 
not ; and tnily, my lord, since I had the psa* 



nel upon looking* over it, 1 do find the si 
hath returned three unaba^>tist pix'achers, aad 1 
know not how many fauatn^ : And since tbtfl 
are such practices as we find in this c^e, vf 
doubt there may be more ; and theretbre 1 piff 
she may be removed. 

Mrs. FUzharrii. 1 will not be removed. 

Fitsharru. Is it fit or reasonable for me, tbit 
I should stand here without any help ? 

Ati. Gen. In case you be guilty of this, Jii 
deserve no great iavour. 

Mrs. Fifzfiurris. Surely the court will neur 
suffer the king's counsel to take away a uiap^ 
life at this rate. 

L. C. J- Mrs. Fitzbarris, you must givegwl 
woi*4ls : And if you will not be modest and cifi 
I promise you we will remove you presently* • 

Mi's. FUzharrii. if you do remove me, tklt 
is the worst you can do to me: What Bhould I 
come here for, without I may helpmy busbaiidf 

L. C. J. If she do bring bim insinidioil |p 
except aeainst such and such juiy-nUBp m$ 
dors misbehave herself, and must be rc m wein 

Att . Gen. This paper that we lyeik «f jp I 



STATE TRIALS. SS Charles IL iG^l^Edtcard FUA^rrU. 



[d3i 



he pand ; and there are particular 
^raatmanj. 

«. A woman hath a Tery great priri- 
tMed hor bibbaiid ; but I never yet 
: she had liberty to bring him instnic- 
|r drawn. 

itgharrif. My lord, the lady marchio- 
tnchester diii assist in tlie case of my 
>rd, and took notes, and gave him 
ns she pleased. 

\ Sure It is no sn^h huge matter to 
s wife stand by him, if she will de- 
•elf handsomely and fairly. 
:h. It is not, if that were all ; but when 
I with papers,, instructed, and with 
directious, that is the assigning him 
I point of ihct. 

r. Let her stand by her husband if she 
But if -she be troublesome, we shall 
Of c her. 

It is impossible I should make my de- 
boot her. 

'fferiet. I see it is a perfect formal brief. 
mk, Mttit he ba^e nothing to help 

In riiort, the king^s counsel would 
Kfeawmy, without letting me make 

em, I desire not to take any papers irNn 
bey be such as are permitted by law. 
At' Mr lorri, his innocency must make 
ice, ami nothing else. 
JigtricM. My lord, we are in your 
s jodgrticnt, whether you will allow 



/. Let us see the paper. 
liy lord, I will dditer them to my 

J. Letitbeso. 

O. Call sir William Roberts (who 

fyear) : Hir Michael Heneage. 

. Hemeagt. My lord, I am so ill, I <*an- 

id ihisoansie. 

J. We cannot eatoiMe you, sir Michael, 

be not enongfa bemdes,*it is not in our 

leaDBose.you. 

\ Heme&ge. I must suffer all things ra- 

a klK my health. 

J. WcU, stand by, till the rest are 

f Cr. fUr William Gnlston, Nicholas 
p Charles Umphrevile (thf*v did not ap- 
MmWiMman. 

9ei. My lord, I desire he may be a^ked 
feto odfed to the book, whether he be a 
i« iD MkbUesex f 

r Wttdmam. I am a pfOwcntor of this 
l«flbr 1 1VW ft' pailiament^man in tlie luHt 
iils«BdI me not appear, my lord, 
if Mag <rocsti<med for breach of tlie 
'*• Ae doamisas. 



My lord, I pray he may answer 
he be a free-holder in 



I pray to be eiensed, unon 
; I was one of them that 




Att. Gtm. Are you a free-hold«r of Middle- 
BOK, unon your oath ? 

L. C. / Look you, major Wildman, you 
arc returned upon a [lannel here, you have ap- 
peared, and your appearance is recorded; yoq 
must answer such questions as axe pot lo you ; 
it is not in your power to deny. 

Major Wildman, I beg tlie excuse of the 
court, I cannot serve upon the jury. 

X. C. J. If you be no free-hokler the law will 
excuse you. 

Major M^/dimaii. Perhaps theremay he some 
estates in my name that may be treehohk ; 
perhaps I may be some trustee, or the like. 

Ait, Gtn, Hare you any fireehold in your 
own right in Middknez ? 

Major Wildman, I don't know that I haw ; 
if it be in the right <^ another, or as tnisteei 
I take not that to be a iieebold. 
CL of Cr. Call Thomas Johnsom 
Mrs. FiUk. Let him be sworn, there is no 
exception aeainst'him. 

L, C. J. UM your peace, er you go out of 
court if you talk again. 

Mrs. PiUh, 1 do not say any thing that ia 
any harm, my lord. 

C/. ofCr, Hwear Tliomas Johnson : yon shall 
well and truly try, 6cc. 

Fitzk, Mylora, I pray the derk may not 
skip over the names as tliey are letumed. 

CL of Cr, 8ir, I caUevery one as they ere 
inthepannel; and don't do eoe wrong. 

L, C, J, It may be he deeenet &S\ them as 
they are mentiOBed and set down in the pennel, 
for all hare not appeared ; but calls thttc whose 
appearance is recorded. 

CL of Cr, I hare called them* as they are 
here set down. 

X. C. J, Well let them all bo called for ; 
may be they will appear now that did not appear 
before. 

CL qfCr, Maximilian Beard. 
Mr. Beard, My lord, I dnire to be excnsedy 
I am Tery infirm and very ancient, threescore 
and fifteen years of age, at least 

L, C, J. Why did the sheriff return ynn? If 
you be of that age, you afaoukl be put out of 
the freehoklers book. BvA stay, you are hero 
impanneled, and have appeared; if there be 
enough, we will excuse you. 

Justice Jones, He oufiitit to have witnesses of 
his age ; ami if he woulil not have appeared, 
he might hare had a writ of pri\iic^ for hie 
discharge in reganl of his age. 

L. C. J, Well, we will set by him ; if there 
be enougli besides, we will spare him. 

CL of'Cr, Isaac Ifouy^ood (he did tiM ap« 
pear) : Lucy Knightly (who was sworn) : Hen* 
ry Baker. 

An, 04H, My lord, I challenge him for the 
king. 

Fitzharris. My lord, why shouM he chil- 
lengehim? I desire to know the law, whether 
the two foremni should not try the challenge, 
and not the court or the counsel. 

Seij. Maynard. If the king challenge, he 
hath time to. shew -eanse till the pannel oe gone 

7 



935] 8TA1% rsaJOA 93 CHAliLfeii IL iCif ^i 




bnl if there wank any fStaag^ the king mutt 
• ■hwrg o o dcttrie.- 

• GL if Gr. Edward PiPobjD. 

vltf. GcM. I cfaalleitfe himlbr the ldo|^. 
I Ci.frCr. Edward Wafbnl(waf«worB.) 

. FUiharru, My lord, musk not Bir. Attorney 
' aheir Ub eame now r 

^ L.C.J.' Look yoo, Mr. Phzharris, eidier 

ride* may take their exception to any man; 

but the cause need not'be snewn tin the pannel 

'k goae timmgh, or the rest of the jarors dial- 

:latead*' 

CLafCr. John Kent, of Stepney. 

Sin Kent My k>rd, I am no freeholder. 

£. C. J. Tlien you cannot be swiun hiere 

* «pon thisjiiry f. 

. .CL ofCr. John Wilhnore. 

Atl.'Gen. We challenge him for the king. 

FiiMkartu, For what cause f 
^ Seij. Jejfl We will shew you reasons here- 
lAer. 

CLrfCr. Alexander Hosey (was sworn:) 
Giles Hiute. 
t -Alt. Gem, Are yoo a fVeeholder, Sir f 

Mr. SkmU, No. 

Ait,Otn. Mr.Whitakerisgotncarhim,and 
He teiki him what he is to do, my lord. 
^KrsA. Here is the lieutenanl of the Tower 
between me and him. 

- Scrj. Jeff. But the bar is no fit place for Mr. 
Whitaker, he is not yet called to the bar. 

CLqf Cr, Martin James. 

Att,,Gen. Are you a freeholder, SirT 

Mr. Jame$^ Yes. 

Att, Gen, Then swear him, (which was 
done.) 

CL of Cr, Nathanael Grantham. 

AU. Gen. Are yoo a freeholder, Sir? 

Mr. Grantham, No. 

C(, of Cr. Henry Beiling^. 

Att. Gen. Are you a freeholder, Sir ? 

Mr. Beiiing. Ves. 

Fitzh. Then I cballeni^ him. 

CL ofCr. Benjamin Dennis. 

Att. Gen. Is he a freeholder ? 

Mr. Dennis. No. 

Att, Gen. My lord, yon see what pnicticcs 
here are, most of the jury arc no freeholdei'H. 

CLqfCr, John Preston, f did not appear:) 
John-Viner, of White Chapel. 

Att, Gen. He hath fetched thorn from all 
comers of the town here, yet not all of them 
freeholders neither. 

CV. of Cr: Swear Mr. Viner, (which was 

• " Here the Chief Justice did not shew the 
same favour to Fitziiarris, which lie aftt-rwards 
shewed to count Coiiiniifsinuik, in <lirpctjnjL»' 
him how to make tlK» kiniy sluvv c.uiso, l»v 
challengintr all the rest.'* Nut,' ia f(>rnicr Edi* 
tiOD. 

t " In lonl Russell's Trial, ' no frecliold' was 
not allowe<l to be a ij^kuI cIkiIUtij;^-', and seve- 
ral, though no freeholilors, \\fr;r admitted to 
be sirom on tho jury. The liki' iu col. fciidney's 
- Case." Note in former i:idiiiou. . 








rt'fcr 



if 




I »• 



dbne.) WiMkm WiNmn (m 
liam Clem, (sipsni :) 
AbraiMHn'Gfcmik 

Ait.Gmi.J^ymlihBh9. 
. BIr..Gft»siis. Na 

CLrfCr. limjJmm, . 

AH. Gm. Ia h^UMMimf 

•Mr. JlMMt. No.- 

C/.(^Cp. Ralph Act... 

AH. Gem. Aakhhn.theMM 

Crier. Are yoala fimbilte, 

Mr. JWr. Tea. 

Cl,efCr. Thett 
dotie.) SamoelFn 

AH. Gem. An yon a 

Mr. Frr^M^. Yok 

Att.Gem. then sirnr Ua.'fMUb'iii 
done) 

CLifCr. Gilbert UmwarOmnt-Mto 
(did not appear.) EdwaidWatl^ .afimi^ 
nunsler. 

Att. Gen. Are yon afteehoUflr. Wkt 

Wmiti. Yest 

AH. Gem. Then we rhalhiy jm iflb 

kinf. 

CLefCr. John Bndriimr af Hatai.fH 
notappear:) Isaac Beadi nf Wi ' 

freeholder :) Edward HuteUw ^ 
•ter. 

AH. Gem. We chaBenffs Imn ftr^teHMi 

C^efCr. JohnLMAaernrWeM ' 

Alt. Gen. Areyoaafirriinider? 

Mr. Luckier. Yes. 

Att, Gen, Then swear him. 

CL of Cr, Connt these. Thomaa h 

Crier, One, &c. 

The names of the twelve sworay ara 

Thomas Johnson, Lucy KnighUey, .S 

Wiltbrd, Alexander itosey, Marthi Jaasi^ 
John Viner, WiUiam Withers, Willtan CkM^ 
Thonuis Goffe, Ralph Farr, Samud-Ito* 
body, and John Luckier, 

CLofCr. Edward Fhzhanis, hold 
hand, (vontlemen, you Uiat are 
ui>on the prisoner, and hearken to yonr cbmii 

Fifzh. My lord, I humbly heg pcvt Sf 
and paper. 

L. C. /. Let him have pen, ink, and pMr. 

CL of Cr. You shall have them . prcacn&y; 
(which were ffiven him.) , , , 

** He stands indicted by the name of EdinH 
FitzharriH, kite of the parish of Sl Martin's ii 
the Fields, in the county of Middleaex, ^snt. Ar 
that he as a false traitor against the ntiort ilhis- 
tiipus, and most excellent iirince, om: aoTUsyi 
lord Charles the Second, by the grace of .G«i 
kiii;^ of England, Scotland, France, and Ire- 
Jaml, his natural lord; not having theftttrsl 
God iu his heart, nor weighing the duty of hii 
allegiance, but \w'n\^ moved and sedycedhy the 
inst^;rt>tion of tho devil ; the io?e, and tmedne 
and r.atural obedience, wliicli a true and fiutli« 
i 111 8id>ject of our said sovereign lofd the kii^i 
towards him our said sovereign lord the Iriwr, 
shoitld, and of right ought to bear, whoHy wi£* 
drawing ; and with all hi» might intenmw the 
peace and common ti-onquillity. within tiriiJiBf- 



''A 

■. MB 



»7] 



STATE TRIALS, 33 Charles II. iGsi.^Edward Fdzharris. [338 



Hnn of England to dbturb, and war and rebel - 
Ikm against our said 80vcroi|^ lord tbe king to 
stir up and move ; and the i^ovemment of our 
said fio^ereiffn lord tbe kin^, >ntLin this king- 
dom of Knglandy to subvert ; and our said so- 
Terpign loH the kiiur from the title, honour, 
uhI Tt'^ name of tue imperial croun of bis 
k'!i^d(im of England to depose and dcpriye ; 
and our said sovereign lord tbe king to death 
tad tioal destruction to bring and put, the !2Sd 
diy of February, in the 33nl year of the reign 
of our sovereign lord Charles the Second, now 
Im^ of England, <Scc. and divers other days and 
bcio, as well before, as after, at tbe parish of 
8t. Martinis in the FieUb, in the county of 
Middlesex, traitorously did compass, imagine, 
tnd intend the killing, death, and final destnic- 
tioD of our said sovereign lord the king, and the 
iBrimt government of this his kingdom to 
daoge, and alter, and wholly to subvert, and 
liiin our said sovereign lord tlie king, that now 
k from tbe title, honour, and regal name of the 
imperial crown of his kingfloin of Kugland to 
depose and deprive, and war and rebellion 
a^uost our said sovereign lord the king, to stir 
up and levy within this khigdoin of England. 
Aiid his said wicked treasons and tniiu»roils 
nmpassings, imaginations, ami purposes afore* 
aid to fuitil and iierfect, be tbe said Kdward 
FitzIuuTis, as a false traitor, together with one 
Ethnond EreranI, a subject oi' our said sove- 
Rijni lord the kinsf, did then and tlir-n* tniitor • 
OQsJy asstemble liunself, meet and tronsult, and 
die suae bis trca*;ons and traiterous compass - 
iap, imaginations, and purposes, then and 
wre to the said Edatond Everard. in the liear- 
B^of diVLTS other subjects of onr said sove- 
Ri^ krd the king, oiK-nly, malicinusly, trai- 
^cnady. and adnsediy spieaking, did publish 
^ deriare : And to porsuud'; an<l induce the 
aiilEilmond EveranI, to be aidin'r and assist- 
■g[n bis said traitorous coinpussiii;^, imagi- 
MliDiis and piir|)osfj«, he the sniil Edward Fitz- 
kuTis,as a false ti-aitor, maliciously, ad\isedly, 
ttdtraiterouslv to the said Edmoiid Everard a 
great rewanl tlien and there did ofler, and pro • 
note to procure. And for the further com- 
pktkig of his treasons aforesaid, and to incite 
AeSD^cts of our sai<l sovereign lord tbe king, 
u one man, to rise, and open rebc;llion and in- 
nnection within this king<Ium of Kngland to 
cuse, ggainst our said snvt^n'iiifn lord the king, 
ud cor said sovereign lord the kiif^ from the 
ide, honour, and regal name of the imperial 
to«D of his kingdom of England to cast down 
ad de)K>se, he tlie said Edwanl Fitzharris, as 
fahe traitor, a certain most wicked and trai- 
tons libel, the title of which is in these English 
"onls following, " The true Englishman ppeak- 
ij plain Erglish," traitorously, maliciously, 
id advLse<lly, in writing to l)e m»de and ex- 
«med, did then and there caitse, procure aiid 
iblish ; in which said libel the said most 
icked treason, and traitci*ous com|.'i^ssins^, 
i&giniitions and purposes afurebaid, of liiiirtlie 
id Edwanl Fitxharris, to excite and pci'su^de 
* subjects ot'our said sovereign lord the king 

VOL. VIII. 



of this kingdom of England, against our said 
so^Tereiffii lord the king to rise and -rebel ; and 
our said sovereign lord the king from the style, 
honour, and r^^al name of the imperial cro\ni 
of this bi3 kingdom of England to dejmve and 
depose, in writing are expressed anci declared 
amount other things, as followeth : ** If James 
(meaning James duke of York, the brother of 
our said sovereign lord the king) be conscious 
and ^ilty, Chs. (meaning Charies i?, now king 
of Enj^hmd) is so too, believe me (meaning 
himself the said Edward Fitzharris) lioth these 
(meaning onr said sovereign lord the king, and 
tlie said James duke of York) arc brethren in 
iniquity', they (meaning our said sovereign lord 
the king and James dtuce of York) arc hi con- 
federacy witli Pope and French to inli*oduce 
jjojierv and arbitrary ^vemment, as their ac- 
tions (meaning the actions of our said sovereign 
lord tlie king, and James duke of York) demon- 
strate. The parliaments Mag^a Charta and 
Liberty of the Subject are as heavy yokes 
tliey *d as willingly cast off, for po make them- 
selves (meaning our said sovereign lord the 
king, and tlie said duke oi' York) as absolute as 
their brother of Frauce. And if this ran be 
proved to be their aim (meaninj^ our said sove- 
reign lord the king, and the aloresaid duke of 
York) and main endeavour, why should not 
every tnie Hriton be a (Quaker thus far, and let 
the English spirit be up and move us, (mean- 
ing the subjects of our said sovereign lord the 
king of this kingdom of England) all as one 
man to sell -defence ? Nay, and if need be, to 
open action, and fling otf those intolerable 
riders ?" (Meaning our said sovereign lord the 
kiug, and the said duke of York.) And in ano- 
ther place in the^d most wicked traitorous libel 
an^ contained, amongst other things, these false, 
siMitious, and tntiterous sentences in these 
English wunls following. *» J . and C. (meaning 
the said Charles our sovereign loni the king, 
and his said brother James duke of Y6rk) butli 
brethren in iniquity, corrupt both in rout and 
branch, as- you (meaning the subjects of our 
said sovereign lord the king) have seen, they 
(meaning our said sovereign lord tlio king, and 
the said duke of York) study but to enslave you 
(meaning tlie subjects of our said sovereign 
lord tbe king) to a Uomish.and French-like 
yoke. Is it not plain ? Have you (meaning the 
subjects of our said sovcreign^lord the king) not 
eyes, sense, or feehng? Where is that old 
English noble spirit ? Arc you (meaning the 
subjects of our said sovcnt^ign lortl the king) Ix;- 
come French asses, to stiti'er any load to be laid 
upon you ? And if you (meaning the subjects 
of our stiid sovereign lord the king) can g<'t no 
remeily from this next parliament, as certainly 
you (m( aning again the sit^jjects of our said so- 
vereign lord the king) will not : and that the K. 
(meaning our said sovereign lord the king that 
now is) it^pents not, complies not with their ad- 
vice, then up all (meannig the subjcits of our 
soverei<rn lord the king) as one man. O brave 
Englishmen ! Look to a our own delenec \'W it 
be too late, rouse up your spirits.'' And in ano- 



STATE TRIALS, 33 Charles II. \6sl.—Profeed!ngs agaSnU 



339] 

thrr place in ttic said most \\icke<l and traito- 
rous liln.^1 nit; contnincd, Jtinongfst other tliiug^, 
these falsr, K4*ilitioiis, i\iu\ traitcroiis senteiictnj 
in ilwme Fii^lish wonls lJ)ll("viiii»- ; to wit, " I 
(nicaniiii^ iiiiuscU' tho said ECdward Fitzharris) 
iviJl only add, that (ls it is tlic inidoni>tefl ri"fht 
of parliamcn*s to niaUe a la\\ .-.liair.st a |K))iis]i 
successor, whi» would pw^ e di\sti-iu*tivc to our 
)aw9 and liberlies ; so it i<i their imd'Mibted ri^flit 
to dtfthnmc any |>os«iessor that tbllows evil 
counsellors to tlie destruction of our <2[t)vera- 
inent," (incanintir the provcninient of this kiiisr- 
dom of Jbintrland.) And in another place in the 
said traitemus IIIk.^!, an* contained these Knglish 
wonls follownn;; : ^^ Theu h-t all (ineaninijf the 
subjects of our ''uid sovemprn Ion) the kin^ that 
now is) be ready ; then U't the city of London 
stand by the parliament with offers of any mo- 
ney for the nuiintainin*;;: of their hberties and 
reliiiion in any evti'eine %vay, if parliamentar}' 
courses be not complied with by the kin*; ;'' 
(nieanin;; our said sovereii^n lord the kn:^) 
atvninst the dn^v of their alie;^iance, and a<<fainst 
the p4>aci; of our said sovereijL^n lord the kinj^', 
his crown and dit^'uity, Xc. and apiinst the 
forhi of tlic statute in tiiis case made and ]>ro- 
vidcd." 

Up'm this Indictment he hath been arraiirii- 
etl, and theivimto hath pleaded. Not (>uiUy ; 
and for his trial hatli put himself uiMin CjihI 
and his country, whieli oinitry yon are, .!s:c. 

Crirr. ]\l:ike ])roet;un:ition. t)yes, if ai;\ 
one will jfive e\iden('e. Sir. 

Mr. Hiuth. 3iiiy it pl«;»<e your lordship, 
and v(Mi •r(>iitlein( II of the .liir> , this is an in- 
dietment of liiirh- treason iiL;';iinst Kd\v;ird Tit/- 
han-is, the prisoner at tiie bar ; and tiie indit-t- 
ment s«;ts f(,rth, that tin* 'ilst td' Ft brnnry, in 
the y.'Jil ytMr <d" iJie kinc, at St. !Martin's-in- 
th(t-Fielils, he did eomp'i^s and iin:e_;'ine the 
death of tlur kiniifi ^oid to rais4M«araud rebel- 
lion within this kinufdrMn. And the indictnieot 
diH*s set forth, that fur ihe aeeonipIi:dnnent of 
this, he «!id lUtt't ami -..ssenilde with one K«l- 
inontl K\enird, anl sivor;il niiw«-<, ;ij,(| «)iO (|is_ 
<M»\er this his iv;i::(r()us |.iii p'»vie to t!ie said 
I'Lventrd, und did perNu;d ' Ivini !•> ai«l inul 
a-jNisf iluj-cin •. and fiTereil hlni u"n -.il rew ards 
if I.;.' wiiulil i\\'' .st>. It fiirliur s;^; ; firlh, 'l'li;it 
for tlu' fuither perfvetiiitr « f this r.i'nMMrt'.bh* 
iniP::ii:atii'n «»f lur i>a:d L.lwanl Viry>:i-.Tis. hi- 
did fnune :ind niakf n treu-^unoMe iih;-!« ami .he 
titi'.' of tlu* lil>;'l is, ' Thi* liu.' Iv.iiiisluran 

* spc;iKi:i;'" plain Kii;ilish ;' j'. «i i:i th:.t trcasj:i- 
ahii- lihei, nil" tl.t Si.' ti'e:i*><»nable words coi:- 
taii't.il, ' It .l:ir.irs be t»nilt\' (nu^i'.ni'iL'' the 
dnkiM.f \ ml.) 'Cii'.'rU's' (ineaniii;:' tin.- km^z) 

* i.s si> :iM»,' \-e. And the 'several \\i>vil< tint 
•liavi- bi-r-n rtiid to \t^w in tiiis iniiic t:i'.e:it, are 
contaliut! in the Miid li'>; i. which 1 .>^h:ill not 
repot. 'I'd this iiidietmt'tU he hath phaded, 
^^^t Ciuihx ; if \*e pro\e it npt»n him, ^cui are 
to find hiin ir<'i'>t\ . 

Scrj. Mai/iiani. May it please your lonl- 
ship, tndy it is a sad thini; to iH)nsidcr how 
many hav« been found guiity of plotthig against 



[3«0 

the kin^, but none have gone so iar as Che pri- 
soner ut the bar : for they desi^pied only his 
death ; but this person would ha? c carried on 
Ills treason by a means to slander him while he 
was alive, anil tliereby to excite the people to 
such a rebellion as you have lieanl. 1 shall 
add no further words ; the thing is not agn^- 
vatablc, it is so {i^reat an offence it itself; b«it 
we will call our witnesses, aiul £(0 to our proof. 
Alt, Gen. My l^ird, yesterday you had 
here the primate of Ireland, who was found 
j^tihyfora notable hiri^h -treason in IreUnd: 
you tiave now tliis day before you one of his 
emissaries, who Ls come over into England, 
and who has here conmiitted one of the niost 
exccrabk' treasons that fay er was brought into 
a court (d'jnslice ; 1 must needs say, that it 
will appear to all tlie auditors this day, that 
here i.> the highest improvement of the I'Opish 
Plot, ami ap^jp^vated with such circumstaiices, 
as shew th^y ha\ e out-done themselves in it. 
Hitherto those cases that have been brought 
into judgement bef<ire you^ ha\e betm the at- 
teni))ts u|ion the hfeof the king, in instanoesef 
either sliootinuf, stubliini^, or poisoning: I ny, 
hitherto they liave gone no further than M 
pniclise these thing's, and that by |K>pish handSi 
tiiey have kept the pb>t amongst tficniseh'ei ; 
but now they have gone one step further, diat 
is. by attempting to prtison all tlie Protestanti 
of I'jit^land as nun h as in them lies, that they 
^hoiibl by their own hands di-strox one auotlier, 
and thi-n- It^^fnl prince; tluit is the tn*ayjn 
nou lKrf4»re yon ; and I take it, with subniis* 
>ion, they i\\\\ <>d ii4» fnilluT. For it is im- 
possible to arise to a higher piee<» ut' mafioe 
and vilkiiny than to set the peopled hearts 
a^^ainst their )u'iiK-e, and to st>t them together 
})> the ears one airain.'^t ai«other. Tliis wesbaH 
I ]iro\e, in the course of ouv evidence, to be the 



I di'sii^^n of the prison* r at the bar. The genenl 
, il'sjon h:ith lK»i'n opened to \on out of the in* 
(li^lnnMit to kill and destroy the king, and to 
depos(> him from his i;:o\ enuiient ; and neshall 
eharire him with all those several ovi?i't<a(1s, 
which 1 slnll open to you : First, screrd 
me<'fin«r< f<» eniisnh ahont'thi\ matt*>r at (iray*l 
Inn am! scvnnl other places; uhich, my Ion, 
I I think tiirve is no (pie^Mion to l>e made, butil 
I an overt a* I tri make hii^h iri-.^-tm. We shiH 
j «r(* fnrlii> \\ and shew that these dt^^igns he ha4 
I to depo'ie tiic king, and rai^e his pt^tple against 
him. he dcHS dee].)ie openly to Mr. HtcranI; 
! whieli is another overt-act within the new irti* 
tnle. U e shall, my' lord, go further yet, ami 
jjro^e the great rewanis he hath otfiTCil t» Mr. 
! ivverard for joining with him, and being agist- 
ing to him in this all'air, part in ready iwinqr, 
' aiul part in annual pension. And iriPreyoflf 
I lonisiiip will find where the spring is, Vrsi 
' whence all thes^ mischiefs arLs<', scmic tbrrifli 
' iiowiT ; biu the Papists, the ]»riests arc at t&t 
I bottom (d' it', they are the persons that Ml 
him on, and these must draw in a great utriH 
bc;v«vnd sea, who must rewanl this gentWinM. 
for being a ]iartner in this plot. And n-e tkA 
prove some money jiaid hi hand. Bui thw* 



C-;i} STATE TRIALS, 33 Charles II. 1(>S1.— EAmrrf FtUharris. [31'2 

my Ir^nl, that which was the cflfert ot'this <«on- 
v.ilt, is f he training this pcriiirioiis libel ; tor so 
gill* ine leave to call it. 

My lonl, the inilif'tinpnl is modest, but wlu*n 
\on roiue to hear the liM itself reud, yon ^vill 
riml it so ; and it was not pnidciire, th.-.t so vih* 
a thin^ i^lmuld ap|»ear upon record. And irnly, 
I Mif.'»e in a IVotestanl kiii<;doin it is tin* first 
itipnipc of this nature that €^rr was : For, my 
M, it istn defame the whole royal fainily, it 
is tr> stain their Mood, and to make them \ ilf 
ntlie Kis^it r»f the whole kiii^loin, and of all 
pnderity . 3Iy loni, this HIk'I in its particidais 
Hiinjftii that 'ni«n»t excellent and iiuioccnt p«T- 
f>i!i,riur late ami never to lie foi-^tUn sftver'.'iirn 
kin? Charles 1, to he the author of the Irish 
ivMIiftD ; it char^rt s onr present prince u Itli 
iLeeTcrciiie of arhitr:iry i;«»vennn(iit, to he a 
l^|ii>t, to be a |Krson that deprives his sub- 
jects oif all manner of I bi»ri y, and pn»iHrty ; 
Hinpivtts terms, ilclnip^ s him with this, than 
vkira oothinsr csiu he nifuv false: fi.p there is 
wte of his SHhjcrls, I lliiuk, hut miM s:iv, 
Max our lU'ist {vraeions priiier. tor the time he I 
harii m^rnetl. niuy vie withtiu' iM'st 'JO ye-us j 
flfuyot'hi*! |inMlecesM»rs, for the prtsM,\iim j 
tWl&erty and |»n>perty of the peojde, f«.r i^iv- = 
issmprare ami plenty alt our time, lor the \ 
pemiitinGr ^'^^^ secnriu:^ to tiuiu the fne cm-- 
Rctof the law, and liir sccminir thtir ci\il 
iBii rprii;inn!« riifhts. 

NylrinU when we lir.ve ffoi.c tu-nn«^h tlie 
mirDC« about the* contextuic, and this liU'l is 
pad ind produced, we sli.ill prove the desio^n 
■fit. and how it was franud, atid the eyes 
^fftliPworhl will hi* (»|»enc<l, and you will sic 

iJUtthk was no intention, uo enjxiiie tVan.t d lo 

trtfta, cr ensnare any pvivatf pei-s'>n, or as it 

«ii<«Cfteth- hr"itefl uhm.'ul, t(» be put in such : 

iwraV par^-c-ts ; but a pieee of the ^ri .UtM 

Narfcnr«4lian j»nlicy that ever was iuvf nt« d 

■MfprrparMl fcir a jiubiic pn-ss, as a cattiolic 

f«iion to infect all the kiii:,''s Kuhjwts, aiiil ex- 
cite tbiin one a;L> ainst another, 
ilnd we shall pro%ethut this person, in the j 

•i-rrral methods that I ha%e oprniHl, haih pr(»- 

(ftiM to accomplish his iraitei-ous desij^nsof 

Mroninj; the kin;;: nay, he hath said, it is i 

lonlted ainon>f them, ncW that noihinyf <'!s" 

«in do it but tlie poisoninir the In arts of thi 

Mile with hatred to their kin«;, and maliec 

ifunsl one another. And uhen we haie pi-ove<l . 

the matter fully, throu^rh all the parts, we 

■wt leave it to'tbe jury, wh(», I cjuesiiou not, 

«3 do theiDselTes, anil all other Proteslants 

li^ aa well ax their prince. Ue shall iiew 

p to our evidence, and first we will cull Mr. ' 

Evmid ; but, my loi'd, I Hf»tdd (»nly first oh- . 

■neto you, that thin «;entlema:i, Mr. Fir/- 

kmi, ami Mr. Everard, were Inith wnployed 

illbe French kiuji^^N service, and then* ac- 

fMMid fnfi^ther. Mr. Kveranl canie early 

iC and became a Protestant, lea>iM;r the 

fmgkk kinip's i«rvice, bet^ansi? lie found their 

~ pbtH and defnqfns upon England. Then 

Mr. Fitzharris to him, and bf*caiis(? Iir; 

npon Mr. Everard not lo be revi arded 



acc<irdin5C to his ineriis, imit«>s him over, with 
teliin'jf him those thini^that the witness him- 
si-lf will tell you, back a^j^ain to t!ie Friiuh 
interest. 

Then !>Ir. Kci raid was Mvoru. 

Fitzharris. Look me in the face, Mr. Eve- 
rard. 

Everard. I \mII, Sir. 

jttl. Gen, Will you aei|uaiut my lonl, .nnd 
thejtiry, how you came first accpiuijilcd with 
the prisoner, and then Irll the se\t'ral pass".p s 
lietwceii you. 

Sid. Oiti. Tell yur whole knowlcdi^r of 
this matter. 

F.rerard. My loni, 1 came acquainted with 
Mr. Fitzharris beyond si*as, when mc were 
bi»th in the French kin<^^s service, and on vtm- 
ference with him of late, »'s|M'<Maliy about the 
bejriiiniiitr of |«\.|inijiry last, he renewed hisac- 
fpiaiiitanee, thouirii ai several times lief ore we 
had sevend di«eour*ies when'of I did net take 
miich notice, hut in tiiosc mertipjjs in Fchruary 
l:)st, audio thosf xisiis In; prjid me then, we 
had M\eral discourses ti'i'idint^ t'» n.'pnrsc'iit the 
disad\ama<4t^ nud sutiiriivj^ I sr.^.taiued, tor 
adhering; to the piotestanr :.iiii Kri^iKh inttn.'sT ; 
and hewjili^s comparlnir in i!n oiIht balance, 
what a(Uantai;es I niii;'ht exncet if I would rc- 
inj;»Talialemysdf ii.lo their inlcrest. 

L. C. J. \\ hat ii:tLi\'st ? 

Jlttrf-rd. The I*ren<*h and the popish lUte- 
iTsi, And iht re wus an oppoiiunity in my 
hand<. therein I mi;»hl Ik; wrviceable to mv- 
self and others ; and he ndd me there were se- 
veral persons, auuniir whom were wnne par- 
liment men, that did adhere to the French 
iuioi'cst, and ^Ave. an uecoiuJ to the French 
andKi^isador of e\ cry da\ 's pnicetnlinifs : Ami a.-* 
I was looked upon to ^k* the author of a kind 
of jiamphle% that was call(>«l, *• An Aii^^wer to 
* the Kuiif's l)e(laration,conccrnin<r the Duke 
^ ('f M"(. month ;' therefore I should be fit lo 
S'r\<-ilicm, es|»«»c!nn\ t(» make suih anoilur 
oamphlet to redect u|Kin thr klnt;, and alienate 
niui from his peojtle, and his people from him 
U h( renpou I tobi him I woubl do any thini^ 
that was tor my true interest, but I did con- 
cei\ewitli mw If, that that was none of it. 
Ileappointnl a time when we should meet 
ajifaiu ; hut I sent l-im a note, I could iit»l nteet 
iM>ssil)lv that (lav. which was !\londa\, as I 
rrmendNT the lilM of February : Ilowi-vcr he 
was iin|iatient, and came to tut , and told me lie 
woubl iri\c me h<>ads and instructions tendinif 
to that pamphb:! I ua> to wn.;*, to «:candali/e 
the kii<«T, and raise a iibellion, and aiicnat:- the 
hearts of tin* kini:<i<-!ii, ah-i -et the pe<iide to- 
ilet hi r by tlu' ears. I fron thihhe ;*a\enu^>=<>mc 
liead<b\ woni of mouth : .V- s««oii as \ pailtd 
Immhim, I met with oni> Mr. Savi!c uf l.in- 
coln's-lnn, and as ^um\ as I iiict vitlihini, 
I ac(|i!ahit«d him with what w.iv pas«fd, and 
toM him I wished rather *v.;*i\ In/. 1 had inef 
him soontM-, half :iu horn* h" 'or;-, ^^h\. ul.at 
is the « ecasion. --.i ,> lie Y ^^ hy. sjiiil Kthen- is 
a (KTSou ihut huth hudbuchaiid such disceuri>e 



343] STATE TRIALS, 33 Charles II. l68l. -^Proceedings agakui [344 



with me, and oneof liis main errands, amnnp«t 
othcra, is for nie to write a scandalous libel 
reflecting* upon his majesty and the jc^ovpi'n- , 
mrnt. And u]K>n this I snid, Mr. Saiilc, I 
shall not confer wiUi him any further, unless 
I have somebody by to witness ivhat he says ; 
he speaks most com^nonly French, and some- 
times Kn^lLsb, and tVierefore it must be one ! 
who understands both tlie tongues well. So we 
went into the city tof^ether that ailtemoon to 
one Mr. Crow's, who is a silkman in Qneen 
Street ; said we, Sir, you are a moderate im- 
partial man, and umit^rstanf I French, we desire 
ynu will be prrsiint to o^er hear some proposals ' 
tliat are made to me tfiidir.'^ to set our e«»untrv 
together by tlie ears, and lie conies fmm n 
popish party. ]\Ir. Crow sai«l, he would be 
wilHng to undertake any ih n<»- io sen'e the |.ro- 
tesLint English interest, but he would not mi- 
dertake to speak French so well as to be able 
to imderatiuid all nice p;issagcs and words 
that might he proposed. And then 3Ir. Savile 
and I went to Mr. Smith a Durham gentleman, 
and made him the same proposal 1 had maile 
Air. Crow, desiring him that he would c<mie 
and overhear our discourse, and 1 would place 
him in a fit place. Mr. Smith assente«l to the 
propositions and said he would. Mr. Smith asktnl 
me what day and time we were to meet ; I told 
him, to-morrow at si.\ or He^ enoVlock at night at 
mvchamlKTin (Jrsivs-Tnn : Uutturther, he Mii<l, 
we must have other witnesses, for one ^\itiiess 
Viouhl not be sufficient ; so \vv. went to the Ex- 
change Coffee -house, and there wcmel with sir 
William Waller, to whom we niatle the same 
proposal, that since we innsi have stmie ll»at un - 
flerstootl French, and kivp the thing seci-et, 
t:]| it were time to have it come out, he would 
plt*'isc to undertake it. Sir William A\all€T 
|n'onii'2odto come, hut failid the first met-ting, 
whidi was to ho on the Tuesday ; then we 
went to anothiT Fn*neh m-jn'haut, who was 
prO|3o.seJby Mr. Sa\il;.', hut he was not within : 
So then we must nly on one witness for tliat 
meeting. Mr. Fit/liHrris was to meet me 
a!M»ut two o'clock at my ehamlwr in Cray**;- 
Inu, where ^Ir. Smiih and Mr. Savile wore to 
miet likewise, and Uu'v carne first tothetavorn 
just at the corner »)f Fn!ler*s-l{ents, which 
h-.-.th a prospect into the court : And from 
thence I ."^uw Mr. i'ltzharris in the court point- 
ing to another gentleman that was with him, up 
to my cluunber, and he was walking suspiei<»ns|y 
up and down. Then I went out of llic ta\iTn, 
and caiiie un to my chambtT, nnd after {: little 
while capU\in Fit/liarris came up to my r<»oni ; 
I pl.iced lilni in aniither room, where m\ wife 
was, aiid shut the door to, whilst I si-nt word to 
Mr. Smith to coine into the cuUer room and 
shut himself into my cl'ist'l. There was 
Mr. Smith in the closet, and there was an hole 
or two for the purpose made thnaigh both the 
planks of the boanU and hangings, but the 
nanijfings hung over the hole that it might not 
be discern<(l by Mr. Fitzharris ; and \w could 
raise it, and tlien see who was in the room, and 
hear their words; ibr I placed luy chair towards 



the closet, which had an an|^ oatwards, and 
now and then I did stand against the hole, and 
now and then Bat, to givelVJ^. Smith aidrantage, 
amltfi give Mr. Fitzharris no suspicion. W hen 
we were so placed, Mr. FitzhuTiB asked me 
what I had done as to the thing propos- 
ed, this libel that I ^vas to draw up ; 1 said, I 
was busy, and had not been able to finish it ; 
but here are some heads of it, said I, and shewed 
him half a dozen lines drawn up toother ; and 
when I had read them, Sir, said I, is this 
your mind ? Ves, said he, but I must add 
much more than this is to it. Then Mr. Fitz- 
harris procecfled to give me further instmc- 
tionvi ; and so I'epeatcd what instructioni 
he had gi^en me before, tliat the king and all 
the n>yal family must be traduced to be po- 
pishly and aibitrarllv inclineil from the be^- 
ning, that king Cuarlcs 1 csiiccially had aa 
ha ml in the Irish rebellion, and that likewise 
king (.'harles 'i, .that now is, did countenance 
the ^ame, as did ap|>ear by his promotinff thois 
very otiicci-s that Avere hi' the Irish rcbellioii, 
Fit/- Gerald, Fitz-Patrick, and Mont-Gamt, 
which should be uanuHl m the libel. Beudes 
that, the act made at the king's coining in, for- 
bidding any to call the kinj^ papist, was merdy 
to stop |>eople\s mouths, tliat they should aot 
(^11 him a papi^^t, when he should incline ta 
further popery, and did intend by his actions sa 
to do. And lK>sid(?s his adhering so closely to 
the (hike of York's interest, was to he anotbrr 
argnment of it, his hindering the duke of York 
t'rcnii coming to his trial, and tu he proceeded 
against by the parliament, and hiuderin<£ ths 
otlicers that wen; put in hy the duke of lork 
from being crast out. .Anoilur argiiinont uss, 
l»ecanse those privy connsrllors and justkxisof 
the peace, that (!)•! adhen* D the Protestant in- 
terest, w(?ivtjirin.-.l out ot'pll places of trust; 
iuul besides, he suid, it did a|,pear to the peopb 
eoiisi'fiueutly, that the king was conscious to 
himself, that he was as o'uiltv as his brother 
and was as much a papiist as Iiis brother, audit 
was in the people's power as wtrll to depose t 
pivscnt popish |>osve8sor, asajiopishsuccesaor; 
:Mid that the |)eople inu>t he stirred up agaiail 
him, nnd encouifiged to blow the trumpet, and 
esperiully that the city and common council 
must be encouraged to stand by tlw* parliaineut; 
and seehig the king was snch, that no hopa 
was to be had of the purliaineiit at Oxon, mf 
weiY> boun<l to pro\ ide for thcmsches and li 
advance some hundreds or thousands of poonfl 
to the parUament to settle the Protestant rdi> 
gion w iihout the king, if pnrliamentary vnji 
would not succeed. ThcM; were some of tb 
instnictions. 

At(. Gen. Did he say any thing thatdlf 
abrnit a reward you should haVe ? 

E'ocrtird. He spake in tlie general aboot ^ 
reward, but he spoke more fully to that thi 
(kiy aOer ; he did not then come so mueh l| 
particulars : then some part of those instrflOt 
tions I writ in my table-book, which is p9^ 
duced here, and iithei-s of them in anahl 
scroll of paper. Uc then desired to koov l| 



STAT£ TRIALS, 33 CHARLfis II. iGSU^Edward FitiMrns. 



[546 



n the scheme of this things would be 
aid I, you may come to-morrow ; I 
rs he, come about six or seven o'clock : 
remn<;. In the mean time I writ a | 

sir William Waller in French, wliich 
y a porter, and therein I f^uid, Sir, you 
ssed a g^at opportunity of rendering a 
nice to the king, by not coming to sec 
H vou were expected ; for the person, 
ich emisvary whom I s|Kike of to you, 
>poscd very scandalous seditious thm^ 
ilKen, and thcret<:rc I desire yon not to 
^u tender the kiof^'s interest, to eonic 
[lumber at six o'clock at night. Sir \\"i\- 
dlcr rccfMvcd my letter, and came thi- 
9nlin<;ly ; I placed sir AVilliani Waller 
er room, and I placed my own chair 
-ow table near the pkice '\^ here sir AVil- 
dler was, and there lhrou<;'h the wains- 
hangings we made a silt, whereby sir 

Waller might see into the next n)4im 
Ir. Fitzharris and 1 s:it : l:ut before 1 
liin there, I shewed sir >Villinm WnHer 
ies of the instructions for the libel drawn 
lid I, Sir, here arc two copies ^^hieli are 
i ssame, and I desire you to counter- 
lem, that you ma}' know them again, 
teby see what alteration uiil be made ; 
tare no blots now, and by that you will 
altcTation. Sir William Waller, while 
rk i%a5i turnetl, counter- inai'ked those 

I went into the next room, and 1 had 
9 lon*j: there, but 3Ir. Fitzharris cauie 
bced the table near the alcove, where 
lUam Waller ^'as, within his hearing 
mg. Mr. Fitzhams asked mo what 1 
■e in the business : Sir, said I, here 
I eopics of it, pray, will you see how 
s it ? So he took one, and I took klic 

JtgerUi. >Iy lord, 1 must intemiptthis 
■an, for I see they continue to give the 
r papers. 

kirriMm It is only a paper of the names 
•ilnesses. 
*.J. Goon, Sir. 

vrrf. My lord, captiin Fitzharris did 

le copy or this pamphlet, and did amend 

did add some things, and struck out 

linms : then said I, Is this, sir, according 

r lifiiup ? Yes, says he, but 1 must add 

nw, ror it is not yet full enough ; but 

B, Uhs nost be fair copied out ; for it is 

Fiench embassador's confessor to read, 

•■Id present it to the embassador. Upon 

aid him it should be done against the 

nf ; but in Uie mean time 1 tokl him, 

very treasonable things, and this 

project. Oh, said he, the 

the better, and that will do 

kHhrtto. What is tliat. Sir, said I? 

L ^^fg^ he, to set these people together 

% vdkeep them clashing, and whilst 

i m dashing, and mistrusting one 

li FkcBch wall gain Fianders, and 

1% we shall make no bones to gain 

1^ J^ntf Vi said I* you spoke of 




some recompence for me, what shall I hai-e for 
venturing this P AVhy, sa\'8 he, after this liUil 
is delivered up, and that hath gotten you their 
confidence that you are tnuity^ then I will gain 
the French confessor, who is very shy, and 
may so well l)e, because one of the confessors 
of an embassador hath been already trepanned 
upon such an occasion. Therefore' he is very 
^-ary, but he nmst have an assurance under 
your hand, which he shall have by tliis libel ; 
and then in a lew days you shall have forty 
guineas, aall a monthly pension, which sliaU 
b;' >jonie thousands of crowns ; for my master 
the French king is not a nigganl as to these 
things. The Spanish embassador is so very 
niggardly and iieuuriuusa man, that he cannot 
keep a table ; but said he, you shall be well re- 
warded by the F.oncb king ; and be not dis- 
f;ouragefl by the danger, lor I am in as great 
danger as you. After some such instructions, 
and encouragements, that Mr. Fitzhnrris gavo 
to go un in the work, he departel ; and I cannot 
well call any thing to mind of more particulars ; 
hut uuou (piestions askc<l me, perhaps I may. 
Hut then at that lime, t»r the next time, captain 
Fitzhanis gave me half a sheet of (taper ; for 
I told him I may chance to forget iiart of your 
instructions, tiierefore pray write what is your 
mind ; and in that paper he writ down, that it- 
was in the peo|de^s jiower to depose a popish 
{possessor, as it was to oppose a |)opish suc- 
cessor, and certain other treattouuble heads: 
the half sheet of paper Ls to lie pn>duced in the 
Court, under his own hand, which he hath 
confessed, bc^ifles other ti^easonable instructions, 
that he gave me by wonl M' mouth. But he 
at tliat time departed, and came the next day 
to have a copy of the treasonable libel UTit out 
fair, and pn>mised me to meet at the Boarded- 
House, where we usually met in HoU)om at 
Mr. Fashion's ; an<l I did there come and de- 
liver him a copy of tliis treasonable libel, and 
he said I should hear in a few days from him, 
and should have a recompencfe, and this should 
he but as an entrance- business ; for I should 
be brought into the cabal, where se\'cral Pro- 
testants and parliament-men came to give an 
account to the embassador, how things were 
transacted : but to-morrow, said he, 1 cannot 
go to receive the libel back again, for I am to 
go to Knight*s- bridge. 

Fitzh. Where there? 

Everard. To my lord Howard^s ; for, said 
he, you have seen liis son often with me. My 
lord Howard is very civil to me, he was my 
father's lawyer. 

Ait. Oen. Will you ask him any questions, 
Mr. Fitzhan-is .** 

Fitzh. Did you write this lil»el ? 

Everard. \ e.4, by your instructions, I did. 

FUzh. iV> you beheve I had any traiieroua 
intention in it ? 

Kvfrard. Yes. 

Serj. Jrfftrur,, You said, the more treason 
the lietter, Mr. Fitzharris.' 

Fitzk. Were you put upon this to trc|>an 
others. I* 



347] STATE TRIALS, 33 Charles II. l6Bl.— Proceedings againH [34i 

broupfht by the woman that carries paper bodu 
about, anuont of that, to make short work, and 
out of The Character of a Pn|iish SucceMsor, ii 
which he said wtn^ many thin«p material, hi 
would have some of the expressions of this liW 
taken : so I copied some of the queries out ol 
that pai»er, which wns said to be a letter inter- 
cepted to Roger L'Estranpr^, and that day thai 
I was under examination before Mr. Secretai^ 
Jenkins, that libel lay before him upon his taUe, 
He aRke<l me if I had seen that, I told him ves, 
for I Iind copied in tliat paper that was the libc! 
those cjueries ; and then, said he, h«!re is a war- 
rant to be ^ven out against CurtLs for it. 

Serj. Je^inrt. After such time that you hd 
carriod him the copy tliat sir William Iiad 
niark<»<l, and he amended it, did you shew il 
sir William Waller presently ? 

Krerard. Yes, immediately ; and I asked 
him. Sir, says I, is there any alteratioD ? Yeij 
said he, I see alterations, and shewetl them odp. 
Do you know the (1ifreren(*e of hands, said I F 
Yes, said he, I do, and suppose will give yon an 
account of it. 

Mr. JoAniora. Mv lord, I humbly beg Mr. 
Evci*nrd may bo asked, wlio those pariiament- 
men were tlint were to concur with the Frenck 
ambassador in this dc^i^ni ? 

L, C. J. Did he name any parliament-men ? 

Ever aril. No, he did not,* he said, 1 should 
know thoni hervafttT. 

L, C. J. I'hen he did not name any T 

Evn-fird. No, he did not. 

Atf. Gen, Then swear Mr. Smith. (WhiHi 
was d(»nc.) Pray, sir, will you look about, and 
l^ivp an account what you know. 

Mr. Smth. Will vou have an account huw it 



Att, Gen. It is no trepanning to ask them 
to come, and hear you p;ive him those instruc- 
tions, sure. 

Fitzh, But I ask him this question, Mr. At- 
tornc'V ; was he put u(M>n it to trepan others ? 

EretarJ, Can you mention any person that 
I H'as to trepan ? 

Fitih, A\ ere you \n\i upon it to trepan the 
Protestant ]>ords, and the House of Commons ? 

Evtrard, No, I was not. 

FUzh, Is this the same libel thai wns read 
in. the House of Commons, upon^ich I ^as 
impeached ? 

Evtrard, Yes, I believe, Mr. Fit/.harris, it 
was. 

Ait, Gen, Mr. Everanl, because he puts 
you upon it, and to satisfy all the wiM-ld, I ask 
you upon your oath, did any person whatsoever 
put you upon this to trepan other iici'sons, or 
to put it into their pockets, as it is reported ? 

Evcrard. 1 was put upon it by none but Mr. 
Fitzharris of whom I qskctl, what will be the 
use of this .^ Said he, \%e shall dis]ierse them, 
we know how. 

Att, Gen, Did he tell you in what manner ? 

Everard, No, he did not tell how. 
■ Alt, Gen, To whom was it t(» be delivered ? 

Everard, I was to deliver it to Fitzharris, 
who was to deliver it to the French confessor, 
and it was to be drawn in the name of the Non- 
conformists, and put upon tlunn. 

Serj. Jcffirifs, W hat religion is Mr. Fitz- 
harris (if? 

Everard, He was always looked upon to be 
a papist. 

J^itzh, When di«Hoii sen me at mass ? 

Atf. Gen. Hath hV imt ownc^d himself so ? 



Everard. H<; hath owned himself at several came tirst tomv knowlodjre? 



times to be a papist. 

Sol. Gen. What did lii^ sav to vou almut 
>'Our being a Protestant, and what cause you 
bail to turn to the Popish religion f 



Att. Gen, Ves, the whole, from the Irnttom 
to the top, from the iKijjiiiing to the end. 

Mr. Smith. I remend)pr, almut the Q9A « 
the21.st of Feb. either one or the other, Mr, 



Everard. He said, J was under great dissid- i Kvenirdand one^Tr. Savile came to my cliara 
vantages, and liiul much loss by leaving tlieni, : l>ers. and t«»ld ino the same desigfn that Mr. 
I hail l)etter have uflhereil to their interest still. ] Everard halh repeated before, and that tbrrt 
He had this diseoui*se with nie at several I \va« an Irish jjent. an officer of the French kinff"! 
meetings, and jrave me sevend visits, s»nne at ■ army that was to manajre the thing ; he ww 
my chaud>er, some at <iniy*s-lnn walks, some- i one that could speak French very well, ami thejf 



times at the htnise with black p<istK in 
where we talked of several things. 



desii-ed me to be concerned in it, l)e<*ause I under- 
stoo«l French. I'pon this I told him, I wonU 



Mrs. Fitzh. 1 am sorry he kept such a rogue willingly undertake such a business, if I thonffhl 
as von are company. i there were any convenient place in the roofli 

it. C. J, OfKcers, take her away, if she can't where I might ln^ar, and soe, undiscovered, 
hold her tongue, nn<l «^i^ e better language. Aller he had trdd me. as he has licfore told yo* 

Fitzh. She v*ill s|K.'ak no umre, my lonl. ' lordship, that it was to make a diflen*ncc l»etweei 

X. C. J. Stand still tlH*n, and he tpiiet. I the king and his people.and to misrepresent thf 

Att. (iin. W hat was y<^ur discourse at the ' king, as I shall infonn you by and by. I we*l 
ale-house. ' to his chaudier aOer we had s|K»Ke to Mf 

/Jr/^;vi/i/. To i;i\e instructions to set the j>eo- . Crow, who wouM not undertake to speal 
pletogiiher by tlieears ; and on«^ nic)st eflee- - Fn'nch sowell as to becapableof mulerstanHiq 
tual means was by scand-.ili/ingnnd libelling the all; but nt last we met sir William Walkf 
government, and especlallv the king. \«lio nndert(H)k the mntter. 1 v^alked imme' 

yir. Jones. Oid an\ IxmIv else assist vou in diatelv after dinner to the chamlH-r, and saw ih 
drawing the libel, eonvenienc<^, and the next night we expedv 

Er-cfard. There is at the hitter end of the sir W.Waller; but he not couiincf that nigH 
libel a paragraph that was taken out of another I went into the closet myself till Fitzharris caW 
hook \ there \mu» a scandalous libel that was according to the appointment When Tti 



STATE TRIALS, 33 Charles If. l6sl,^Edward Ftizharris. 



[35« 



me, there were two chairs set, one 
t the dos^ where I stood, and another 
afl^inst me ; that opposite agxtinst 
that where Mr. Fitzharris sat, and 
rmni was next close to me, and I 
ut throai^'li the hole, and I hcanl 
le little dlseoiirKes about the bu- 
hand. At last Mr. Kverard btands 
yes to the side-board, and brtn^ a 
paj icr, about hali' a sheet, as I think, 
; and he read it, which was a sediti- 
f |nper, which 1 shall tell you ot* by 
kiid he asked him in Fi*ench, whether 
a^Ti-eable or no ; to which the ^ent. 
, II uns well, but something must be 
it. l.'|N>n tliis, Mr. Everard took out 
ofik, and rfad some things therein, 
Mr. Kver«'.rd desiretl liim to instance 
ds he %vould have nioi-e than were 
To which Fitzharris replieil, that he 
re biro to represent the king* as a pa- 
h, mi^ht be demonstrated by se\ eral 
first, his stlhering to the duke of 
d peremptorily reso|viii<^ to espouse 
St. The second reason was, the pre- 
ch as were the duke's creaturc-s, both 
fauid, and keepinj? in office those that 
erred by the duke, known papists ; 
wzst also another reason to ])ro\ e tliat 
te instructions, that the kin^ alter his 
procured an act to be made that it 
treason tor any to call him papist ; and 
mlv that he nu<rhtthc better, and with 
e, intn>duce popery into England. He 
likewise king Charles 1, to be a pro- 
tbe Irish n^bellion, and that Charles 2 
and approved it ; that is another in- 
That the (larliament at Oxford was 
am to delutle the ])eopIe, and that such 
soot to be trusted with such a people, 
( to their lives, lib«niies, or religion ; 
be people roust provide for themselves 
ad blow the trumpet boldly. Ano- 
uof! was, as it was the undoubted right 
ople to make laws against, and to o|)- 
pish successor, so ihey might depose 
possessor. To ihis eflect was the 
! of what was said. 

en. Did he name a reward that Mr. 
wss to hare ? 

There was a reward mentioned, but 1 
icmber any |mrticulars. 
r«. Did he tell who set him on work ? 
Benidy if thev did but set England 
kj the ears, tlie French would get 
~ at lengtli prevail here, and Mr. 
M pt an interest in the common- 
vake it his business that they 
a kind of ao address to the par- 
iBiomise to stand by them with 
njfiirtiines in opjiosing i>oi>ery, and 
maeoty and if parliament- wavs 
%l in another way ; and if the 
I Che duke of York to ctmie to 
then tbiey should take other 



did he dewre trom Mr. 



Everard, when he seemed to boggle at his in- 
structions ? 

Smiifi, Mr. Everard said, he would do these 
things, yet he was in great danger ; why, says 
Mr. Fitzharris, so am I, and a great many- 
more. What other conference was between 
them, I know not, for 1 never saw them toge- 
ther after. 

SSerj. Jefferies. Look you. Sir, is this the same 
person ? 

Smith, Yes, I did know him to be the same 
person that night he was taken. 

L. C, J, You could see liim where you 
were? 

South, My lord, I saw him clear enough, 
there were three candles lighted, and I was as 
near to him as I am to your lordship. 

L. C. J, You were not in the room ? 

Smith. I was in a little closet close by. 

Alt, Gen, You know nothing of the paper of 
instructions ? 

Smith, I remember he told me of such an 
one, but I was not there the second night. 

Sir F, Withins. Mr. Everard said they were 
treasonable things, what then said Fitzharris ? 

Smith, lie said the more treason was in tlicni 
the better. 

Serj. Jefferies. And the particidars were to set 
the people together by the ears, and to bring in 
the French king. 

Smith, It is all one in terms. 

Serj. Jefftt iis. How was it ? 

Smith, That the king and the people should 
be set at variance, then the French king would 
fall upon Flanders and Holland, and afterwards 
would take England'in his way, and make uo 
bones of it. 

Seq. Jeffcries.WlW you ask him any questions, 
Mr. h itztiarris ? 

Filzh, Do you l>elieve that I did it with a 
treasonable intention ? 

Smith. Sir, I am not to judge of that, I am 
not of your jury, nor to answer any such thing. 

Fitzh. A\ hat do you think, Sii*, pray ? 

Smith, You couul have !io good desic^n to 
bring about by any such matter (I thi^) as 
tliis paper is. 

Fitzh. Is this the same paper tliat was read 
in the House of Commons ? 

Smi(h. Sir, I was not of the House of Com- 
mons, I don't know what was read there. 

Mr. Johnson, Mr. Everard dki seem to hint at a 
design amongst some protestant Lords, and 
]»arliament-men, and others, dissenters from the 
church of England ; I desire to know whether 
Mr. Smith heard those words ? 

L, C, J. That was not the first night. 

Smith. I did not hear it. 

L. C. J. Look you, Mr. Johnson, Mr. Smith 
was not present at the second meeting, then sir 
William Waller was there, it was only the first 
night iVIr. Smith was there, and he s|>eaks to 
that. Therefore as to the alteration of the copy 
and some other things, he tells you that was 
done the second night, and then was the dis- 
course concerning the French confessor, and 
those other things which you mention. 



3:5H STATE TRIALS, 33 Charles II. ItiSl.-^Proceedings agahui 

'Alt. Gen, 1 brltevc the jury Dii*:apprehend render tlie kioflr ^ery odioas in the sigl 
Mr. Everani in thut tw. " sntijects. Mail}' tilings he did there 

Js. C. J. It was only wliat Fitzlianis told liini. and earnestly pressed ine to join in tliis 

Alt. Gen. But i see the th' ig^ sticks %vilh to endeavour ,tiic discovery of it. lira* 
tlie jury ; tlicreforc, I would fain ask Mr. Ever- at the first shy of meddling with it, b 
ani this qur:stinn, rlid you declare any such way hi the commission of the peace, 
tliln;,% c»r was it Mr Fit/hams that told 3 on ? not liable to enga^ in a business of t 

Mr. Kvernrft. Mr. Fil/l:ir.Tis tvid me. that ture ; but I was afraid to discourage Mr. 
sevei?.! parliament -men nrre joined with the " who % oiuntarily and ingfenioiisly offere 
Fnncli aiMh;t*isador to (jfivi' hi:ii an sjccount of | self for tlie Sf-nice of his king* and c 
tliini;^, hilt he told uie lii^i'lps, ihut it must t)e ' hut ] did not g-o that allernuon, being 
drawn np as it were in the nairc of the "Ntm- ] tjJ hear whether the business went on, 1 
Conformists to IuiIht it upon ilicin ; yH when I h'ke'.y to come to any thing. The next 
there \»!is one word in it, 'J'ijou, as il" it were ia>f Mr.E\erard writ to me this letter (p 
in the Unnkf-rs nainv ; 1:0, says he, it must 
not br; so, hut it must hf inidrr thf name of all 
the \'in-(^'mifonni^ts, that it ii:ay be common 
to ail llii; di^(?ontente<l jkuI}'. 

Is, C. J. S.i yon must takf* the sensfMif this ■ him tiio nij^fht lufore, and that accon 
rii^ht, i»:<'nth'Mit II. Ir is iir>t, M:\ liverard t<rlls tlwy hail hiid their business, Mr. Fitzha 



out a iraper.) 

Jusi. Dulbem. Read it, Sir. 

Sir IVnt. Walter. My lord, in effec 
fur to let me know. Mr. Sinilh hath In* 



you, some parliniiinit-men nnil lonls were en- 
^.'I'^ed in this husiiicNS, hiil Mr. Fit/harris's dr- 
sii^n wa.i to «'n:;}'.i;i' Fverard, an«l he ui<;o<l 
w hat he (;onld to riifouniL^r bim to it. No that 
the anriiment.s he used w<t(.>, t^at sonu' lords 
and ]iarti:unent-nicii wiTe eii'^ti^^od in this, to 
cueoura«rr him to ;(o on. 

Mr. Jofimuni. It is true, my laH, r-o that 
here docs ap|K>ur there was some other intertrst 
than the I'Veiieh iiitenst in tliis matier, if what 
Mr. Fit/liunis sai*! wns tnit-. 

All. (i n. I'il/.iiuiTis s;ii«l s;». In cn'.-i'lT'* llilil. 

7^. (■ ./. Look von, .Mr. JohiV'Jon, we do ali 
veiih 1m iiive ;»!»;( hope, tlrTe w.is no 8;'<'!j 
tliiii'^ MS lli-.il any 1u:nI, «w' any of the ('onnll(■^^ 
of l'j».:l.inl wei<' so eiiix^.ijrcil J it was his in • 
t».'iv«t, U". y\\'. F;t/h:irris l')ok it, to mention it 
HO, to eiit,';!^^' tliis ;»i-;t]eiiinn. 

J'Wc.rnrtl. 1 (lid wA say lords. 

Jm. (.'. /. W hut j'id von say tlien? 



indi^Ml come, and had some discourse 
hoariiiir <d' Mr. Smith, several things 
uhat they had aetpiainteil me with, tl 
the hii;!ies: natnnt iniairlnablc ; and tb 
he carpe>1.1y ]iresse<l me, as 1 tenilen-d tl 
far*' oi niy kinyf sm«l <'«u:ntry, that I wo 
iail to cohse tli:-.t i'.tl'.vrnnan t;> be an ear- 
nf tlie tnasjiiiulile piMetiee.s that were \\ 
1 looked iiiion in v:: if then ohIig4Ml to ^ 
dill, a<reorJir:»"t'» ill-! (!i:e::i:ons lie gave 
almiit tlii'ee o'c Inek in the afternoon to a 
j»l tlie !.i\wr e:id of l'.;!lir'sl5ents ijcar 
Inn, am! ili-.»ie w^' \iero lo (Ji<eoni'?e iui 
tlie b;isines<:. I haii \\\A hei;i ilu re km 
I lo«ji:e'! liP.t of a hack ».>iij.i.!n-, and spi 
ritzhanis with aM.iihrr ir<'i*'»i«'>'.KUi in u I 
coljin.'d suit, v.jjlliint.'' ;jist before iiww 
df-.r. I d'i uoi \.iii-\\ tl;.» j.nnie of the 
hnt th«re 1 .'.riw >•«■ -r. v. ''Mmlt-, Ixit \\ 
ir'»in:,-he fivrjivnlS 1 r:ki.d :•;» at "Mr. Kv 
ehani'i- •, •.v.\\ ji- i^;' •■! j-l u. "\\ lien I 



KrtuinL l*ar!ianiv.it-ineii in l»■^'nc•lal. 

Alt. (ii'n. Then sweai* sir Wiiiiiiin W'alhT, i trone, I luM Iiiis!, it ii...iy iie ""'ir. Fif/Zliarr 

(which \Kis done.) | e'Uii* soMier 'J.:!;i ni-.. Imu.* ap;r.Mii;i.\l, 
Sir >'/■«//. W'iihiiifi. Tia\, sir "\A'illiam, wili lore I tnink it v,;ll :ii-i h.- u\n;>s to ir'» v 



further «'jelay to yinir ; l'.a:>.il.ier, and se 
e.'invc'ruii.i'v tlkiv ii.i v ^-^ lo lie si'i."ivt. 



I 



\on eive an account of wli:U yon knovr- of this 
matter. 

Sir Wm. Waller. M> I.»ril, the last \\\\\r 1 . I ?n:?v he ln»th an cs/ und an ear-witnc 
w;is here ill this cMiurt, beii.L^Msnniioneil to ;iive I went to hi< elianil»ef, and w'acw \ eno' 
in my e\ id nee, I did make .;:.;nie dillienlty of ! thi; room, the.-e was a liitk- elosot, wl 
it, upon tin* aeeount that this person was iin- ! thoni^lit ni't ^o ro:!\e!iii'!.t Ibr :i!.', anil I 
M*aehed b\ the ( 'oiiiuions of liln«»lan«l i!i Fjt- I <'ii<;se t»» !oo!: aboui if I oe^i.l iind a 
iaiiient ; t)nt Mr.,l:!sli;*e.l.'ni s havii;u"dc.rlaieil I ])Ijiee iiini*e tov.ve,.i'Mii. i;j:!ifMl, in iii 
the \\\\ rcfpiired me in sneh a ea'^e to «yive in ; ■.■o*'m I fonnd \\y w.v C7 .\.\ tl;«."j> wns a 
in\ e»i«leiiec, 1 am now reiuly lo ;j|;ivc il in, and i a id haiit»"in!^ ov»m it. I t;ii*": d U5> the 
shall di» it as b]i<>fh as 1 laij. i in;!S thero, an.il in iIj:- «i.n)rti.. ■.e \. ;i-% a c 

I.. C.J. ^> r!l. Sir, pniy ;^o on. wlsii.-h I opened a lii.Ii.^ uith my Kiiin 

Sir 11'///. ]V:l/t/. M\ I'M-il, upon the Qii\ or ripped a hole i.i tlie hani.intis wljieh 
'-».*il of Till. List, "Wv. |')v«i.iril met me in tlie into tlie rcioni wheieJ'i. •;■.•. r. I. m^ii «:is 
rit\. ami tolil iif>, U- b m| a h ."inrss ef \iry | tii llMfciv Mf. I'it/.l.:-..i;. e;«n.e. 'iJr. K 
^vv.\\ eo]ie«riinie:it i.» i!:»-eowv to me ; wiere- j had j:\\Kn iiie a lary^e :'.(c-ji!.t, mneh :iil 
npnn, iii\ hml. ue vein ir.tii a j.iaee \\l:t re v.e j sani^* iiMnncr th '.I he h.u-h *j;\^^n in hw 
iniulit eonuhi; .Illy diM'nji^' t««v;clh("r ; and nio!iy he;c. and h.' sh'.'weil i:>,' two paj»e 
he tolil nil-, insiiort, that iMr. Ivh.. !'n/.!iarris, | li:ok"ihe tw.i pap. .s. ind u«^e ihem a ji 
th:»l uiitorinnau' y:eiitlenian el the bar, li::(l | mark, \]\\A 1 ir.i;;hl know lh;!m ai^in 
beeiiwiih him sewral iiiiie>, anr -ndeatonrid withal v.e piae«-«l a table and a chair 
toenjfaire him in a business, which would in atp'inst Mi. l'::.'hams's comin.'^in, and f 
effect turn all iuto confusion iu Eni^land, and that he shouhi be plat^ bO, :Vs that tb 



3i3] 



STATE TRIALS, S3 Charles n. 168 1 — Edward FtizhmrU. 



[354 



tht hole I mi^t lia?e a full si^t of bim : but 
lot by an acctdeat he ibould t^ removed from 
thnice» I dc«red Mr. Everard to ask him tliree 
^uestiooa. The 1st was. Whether he had not 
married a daiishter of one captaiu Finch, whose 
frther was killed in his majestv^s sen' ice ? The 
Sd waa, Whether, as he read over the imiier, 
ft was drawn up acconling to his instructioiw 't 
Aad the 3d was, Who was the person that 
dwuld reoompencc Mr. Ererard for running so 
peat aa hazard ? According to these instruc- 
tMMM, the table being placed, and every thing 
m Older, about sc\'en.oVlock, or bct^ieen six 
tadsefcn, Mr. Fitzharris came in, and being' 
stf Aram, he began to ask some quuktions ; 
aoMogst others 

[Then some compl&int w'as made by the 
m^s eotmsel, of papers given to Mr.Fitz- 
hams.] 

FttMharriM. Pray, my Ion), I lieg that 
paper may he ffiveu to my wile again. 

Alt. Gen. I pray it may be given to the 
eonrC 

8e^. Ma^HuriL I pray ii may be read. 

&/. Gen. It is not the duty of a solicitor to 
bring papersi, he was only appointed by the 
court to run of errands ; lie vf-ds not to aclvise 
•r ftmish with matter ff'defrnre. 

Sarj. Jtfferici. Mfffttd^ this is an oflfcfnce 
csaunhlcdin the faoo Ol' the court, therefore 
■re ^Kmy the person that hath done it may b? 
ooninutSed. 

Just. ])oiben. It is nolhing but the rtsolii- 
60ns of the House of Commons ; give it bim 



£. C. J. If Mr. Whitaker lies there to trou- 
Ue the ooorty we shall find another place for 
him. 

&jL Qt9. My lord, !\Ir. Whitaker hath done 
bis daty now, and wliat service your lordship 
tppoinied him ; so I think he may be sent 
away, for here is no more business for him. 

£ir Wm. WalUr, Mr. Fitzharris came in, I 
ihiak it was between six or seven oV'iock, and 
coming there, he sat himself Ai^wn in the chair 
piepared for him ; and Mr. Everanl, accordinrf 
to the instmctions I had given him, did asK 
bim sereral questions ; but Mr. Fitzharris did 
■ik him first, Wliether he had finished the 
paper according to some instructions he had 
^pren him ? Mr. Everard produced two papers, 
the one was the copy of the other, as 1 cuuntc<l. 
Mr. Fitzharris had one given into