Sheridan, whose discharge by baron Weston gave offence to the House of Commons, appears to have been for breach of privilege, continued in custody to which he had been previously committed, but for what offence does not distinctly appear. committee to examine him and Wilson. The act directs, "That the judges, within such a time, grant a Habeas Corpus, when desired, and they are required to bail where the act gives that liberty." Now the question is, whether a Habeas Corpus lies in case of any of your commitments, the parliament sitting? (And he reads the Act.) In the Act here is nothing relates to parliament-commitments. The Head-Court" is the King's-Bench, and this seems not to relate to the parliament. This is a commitment of parliament, and if so, the 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 Dowdel, the priest, &c. After which it was ordered, that he should continue in custody of the Ser-judges cannot grant a Habeas Corpus. 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 15th, he was at his own desire again admitted to the House and examined. On Thursday December 30th, 1680, and the next day, the following debates took place on his habeas corpus : On Mr. Sheridan's Habeas Corpus. Mr. Boscawen. Mr. Sheridan stands committed, as a judgment of the House, for breach of privilege. It seems to me, that his commitment does run on the hinge of an act of court in a criminal cause, which we may suppose in execution, where a Habaes Corpus does not lie, and he is not bailable, and they will not discharge him in a court of criminal causes. I think his commitment stands good, and you are to consider the privilege of the House of Commons. The Speaker. Give me leave to state the matter. The thing, in fact, stands thus. Sheridan and Day were committed by your order the ninth of December; they were brought to the bar the same day, and ordered to continue in custody during the pleasure of the House, and no person to be admitted to come to him unless it were with necessaries. Then that order was mitigated, and you 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 of the law itself, which, to me, did not seem altogether so prudent in a man of his lofty 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 he, the Lord Treasurer, and others drank themselves into that height of frenzy, that, among friends, it was whispered they had stripped into their shirts, and that, had not an accident prevented them, they had got up on a sign post, to drink the king's health; which was the subject of much derision, to say no worse." See more concerning him in this Collection in those Trials in which he presided when Chief Justice. Serjeant Maynard. You are going upon a sudden to give an opinion in a thing not thought of before. As I take it, his Habeas Corpus is granted: now what is to be done in this case? I desire not to be concluded in any thing I shall now say, but I will tell you my apprehension; where shall he go to be bailed, but to this House? Your remedy for breach of your privilege is commitment, and no action can be brought against either the Lords or Commons. When you commit a man, you do not always express the cause; if the judges bail him, he is gone, and there is an end of him. I would have this matter let alone till to-morrow. Serjeant Stringer. This is a matter of great concern. I would consider whether a judge can deny a Habeas Corpus. By the act, the jailor is to pay the penalty of 500l. upon affidavit "That he is refused the copy of his commitment."-So far a judge may safely go. But the great point is, whether the judge can discharge him. If so, farewell all the privileges of the Commons! When the matter comes to a Habeas Corpus, the judges may be informed how he stands committed. It is said, "That this Sheridan is a second Cole man," and, if so, let him be hanged as he was. I would take time to consider this, and I be lieve the opinion of this House will go a great way with the judges. Sir William Jones. This matter is of great concernment; it concerns the privileges of both Houses, and next, the liberty of the subject; and I would not have you do any thing in it hastily; but to appoint a committee to consider it, will seem to make the thing too difficult; but yet you are not ready to come to a resolution now. I must deny “that the judge must grant a Habeas Corpus to this man." This is not a case at common-law, but you see that sometimes in discretion for merly ment. they required a copy of the commitBut by this act, the judges grant a Habeas Corpus upon a copy of the commitment. In this case, the judge is in no danger upon refusing the Habeas Corpus. The serjeant says "Sheridan sent to him for a copy of his commitment," and the serjeant has not granted it to him; so the Habeas Corpus is not yet granted. If you please, I would not commit this, but adjourn the consideration of it. Sir Francis Winnington. All I move for is this, "That no memorial nor entry be made upon your books for the present;" but upon the whole frame of the act, I see no Habeas Corpus lies upon a commitment of parliament. Serj. Maynard. I am clearly of opinion that this is a cause out of the statute of Habeas Corpus. That law was never intended otherwise than for commitment from inferior courts, and not parliament. All bail is in order to trial; when an act of parliament says "A lower court," it never intends a higher. A commitment is not only a judgment of this House, but an execution: and though the statute does not mention the parliament, other courts shall not grant it in judgment and execution. There can be no trial of one committed from this House, but in this place, and this act is not intended for commitments from hence. Sir Francis Winnington. It is plain the parliament is not to be included by this act; for the parliament was informed, that there was a Habeas Corpus to remove a man from the Tower, and they sent him to Jersey or Guernsey. So it plainly shows that it was for the growing evils of removing men out of the reach of Habeas Corpus, that this bill was formerly brought in; and that it was never intended against commitments of the House of Commons. A man is committed here in execution, and it was never intended that injustice should flow from this House. As Mr. Sheridan has repented himself of bringing this, I could wish he would of his other crimes also. Sir Thomas Lee. Consider the advantage of putting this question, moved from the bar by Jones, viz. That no Habeas Corpus does lie during the sitting of this House." This court is a superior court, and no inferior jurisdiction. I do not see why you should make any vote in this case. The judge has the law before him, and your vote cannot alter it. You may be prejudiced by subjecting your vote to the interpretation and scanning of the judges. act of Habeas Corpus; and why will you make any question upon it, upon general commitments of the House. his case was thus spoken of: On the latter of the abovementioned days, Serjeant Maynard supposed Sheridan should bring an action against the judge, if your commitment be for breach of privilege, no inferior court will judge of it; but if the commitment be not for breach of privilege, you may mend it. Mr. Harbord. I appeal to you, if ever you discharge a man that does not acknowledge the jurisdiction 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 is, as if after commitment they should mend the record in Westminster-hall. Sheridan was in custody before the paper that reflected upon your members, and broke your privileges, was found. So the first order for commitment was upon another 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 Thomas Lee. I would have it considered how you will mend a commitment afterwards; if he has a copy of his commitment, general, and now comes an amendment of the commitment, for breach of privilege, a month after? The general debate ran, "That he held a dangerous correspondence with the duke of York, and was a second Coleman." Gentlemen were sent to search his papers, and found a paper in his closet not printed nor published. Pray let the thing stand upon its own foundation, without mending it. Sir Fr. Winnington. The famous case of lord Shaftsbury, when upon a commitment by the Lords he was brought by Habeas Corpus Sir William Pulteney. In this case, a vote is to the King's-bench bar, there was no return necessary, else the judges will not know what made, and he was discharged sedente Parliathey ought to do, and what not. You have mento. If a rule of court be ill-entered, I apvoted, "That the judges cannot grant a Ha-peal to you, if it be not mended every day in beas Corpus against the common privileges of this House." I would have the judges take notice of it, and therefore I am for a vote. I do not know that this House has power to commit but in case of breach of privilege, and I would so restrain it in the vote. Mr. Paul Foley. I have looked over the act, and am of opinion that a Habeas Corpus does not lie in this case, and may be refused in case it should be required by this act. A Habeas Corpus was never granted upon a commitment by parliament formerly; no precedent can be shown of it. You commit for contempt, and it must be in such cases where the party is bailable. If you put a question, I would be loth to have our privileges (which is our only power) to be lodged in commitments upon impeachments, whereas we have power to send for all people commoners. The Speaker. This case is particular as to Mr. Sheridan, and is out of the power of the an inferior court? Mr. Powle. Whoever, in this place, speaks for limiting your power is not so favourably heard, as he that speaks to enlarge it. · State super vias antiquas.' I am afraid we are about removing the ancient land-marks, which may return to their old bounds again. Your power is part of the judicial, and part of the legislative authority, and it is but part only. Anciently the judicial power of parliament was exercised 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 breaches of privilege, and we for ours. This case of Sheridan, I confess, goes beyond your ancient privilege; they took no jurisdiction upon themselves, but either did send to the Lords if the thing deserved an impeachment, or dismissed it to the law in the lower courts at West. minster. I do not take the words in the paper found in Sheridan's study, to be a breach of privilege against your members, he having not published the paper. Here is neither actual force against your members, nor suits of law. If the courts below cannot reform your error, it is fit you should do it yourselves. If this man be not in custody for breach of privilege, I would release him, and all that are so committed, and reform your own error. On Friday January the 7th, 1681, the House was informed, that a writ of Habeas Corpus had been directed to the Serjeant of the House, to bring the body of Mr. Sheridan to Mr. Justice Raymond's house in Chancery Lane. Sir Thomas Clarges. Lord Shaftsbury was committed by parliament, and took out his Ha beas Corpus, but the judges had the discretion to remand him; and a Habeas Corpus does lie unless for treason, felony, or in execution and convict persons, &c. Commitments of the Commons are in execution. As I now stand apprized of it, the Serjeant may carry Sheridan to the judge with the cause of his Commitment. Sir Francis Winnington. I take this business to be worth your consideration. The case of lord Shaftsbury is not this case. The act of Habeas Corpus was made since that time. On the other hand it was rarely found, that a person, committed by either House, has been sent for by the judges. As I would do justice to the subject, so I would not, out of compliment, give up your privilege. I would adjourn this debate till-to morrow, and go upon the business of the day. I speak not for an order, but because there is a penalty in the statute, I would con Mr. Boscawen. The judge might not have gone so far as he has done. It may be, the Serjeant had other prisoners, and your commitment of Sheridan is not for breach of privilege. He is a Serjeant at Arms, though he attend the House; so it does not appear but that the Serjeant may have Sheridan in custody upon ano-sider of it for the Serjeant's sake. ther warrant. I would be careful to preserve the privilege of the House on the one hand, and the Habeas Corpus on the other. I would have the Serjeant give the judge an account, "That he has Sheridan in custody, but that he knows not that he has him legally, &c." Grey says it was adjourned to the next day, but he does not make mention of any farther debate concerning it during the continuance of that parliament, which was shortly afterwards. dissolved. 277. Proceedings in Parliament against EDWARD FITZHARRIS, upon an Impeachment for High Treason: 33 CHARLES II. A. D. 1681. [Journals of both Houses. 8 Grey's Debates, 303. 4 Cobb. Parl. Hist. 1314.] HOUSE OF COMMONS, March 25, 1681. SIR George Treby acquaints the House, That he, together with sir Robert Clayton, had taken the Examination of Edward Fitzharris, relating to the Popish Plot: which he read in his place; and afterwards, delivered the same in at the clerk's table: where the same being read is as followeth ; The Examination of EDWARD FITZHARRIS, relating to the Popish Plot. Who saith, That he was born in Ireland, and is the son of sir Edward Fitzharris; and that he was bred, and is, a Roman Catholic: That, in 1662, he went first out of Ireland; and then went into France, to learn the language, as an accomplishment, being then of the age of 14 years. In 1665 he returned thence, through England, into Ireland; where he continued till about 1668, when he went to Prague, in order to serve the emperor in his war in Hungary; but, there then finding a peace concluded, he came, by the way of Flanders, into England. And then sir George Hamilton being about raising a regiment of 1,500 foot in Ireland, for the French king's service, this examinant obtained from sir George Hamilton a commission to be captain of one of the companies in that regiment to be raised; whereupon he went into Ireland, raised the company, and conducted them into France: and, soon after his landing there, he was reformed, and discharged of his said command: whereupon he went to Paris ; and, having but little money, he lived there difficultly about a year. In 1672, going about to take his leave of Father Gough, an English Priest at Paris, he saith to this purpose: "You are going for England: within these two or three years you will see the catholic religion established there, as it is in France." The examinant asking him how that could be, since the king was a protestant; he answered; "If the king would not comply there was orders taken, and things so laid, that he should be taken off, or killed: that the duke of York was a catholic; and, in his reign, there would be no difficulty of doing it." This examinant then asking him, how long the duke had been a catholic; he answered, "That the queen mother had made him so." He further said, "That the declaration of indulgence was in order to that, and of introducing the catholic religion in England: and that, to the same end, the war was made against Holland: for that Holland was a nest of heretics; and, if they were destroyed, the work would be easily done in England; because the English, or English Protestants, he said, would then have no assistance from abroad:" And he said, "That Madame came over to Dover about this design." The Examinant, coming over about the end of October 1672 about February following, bad a commission to be lieutenant of captain Sydenham's company, in the duke of Albemarle's regiment, which was then raised, being one of the regiments in the army, which was the summer following mustered at Blackheath: and he says, He knew many of the lieutenantcolonels, majors, captains, and officers of that army to be Roman Catholics. That afterwards, the act passing to disable Roman Catholics to bear office, he and others of them were forced to quit their commands: and says, That the common intelligence and opinion among them was, That that army was raised with a design to bring in and settle the Roman Catholic religion in England; for which end the invasion of Holland, and the awing of the city of London, were fit means. But the measures that were thus taken being broken by means of the peace, and by the duke of York's, as well as these, and other officers, quitting all commands; and the king failing in the expectations they had from him; the Roman Catholics, that were engaged in this council, came to a resolution to destroy the king, as Father Parrey, confessor to Don Francisco de Melo, the Portuguese ambassador, told this examinant in 1673; and if all other means failed, the queen would procure the doing of it. And he says, That this Father used this confidence towards him, because he was well acquainted with him, and used to confess to him; and this Father repeated the same discourse to him in the summer 1678, with more assurance; adding then," That the business was now near, and he should soon see it done." About April 1679, Marquis Montecuculy, envoy from the duke of Modena, after having sworn him to secrecy, told him, that if he would undertake the killing the king, either in his own person, or by any other, that he should have 10,000l. which he refusing, the Marquis said, "If you will not, the duchess of Mazareene understands poisoning as well as her sister; and a little phial, when the king comes there, will do it." And this Examinant had a great acquaintance with the said Marquis, having first met him several times at the duchess of York's Chapel; and afterwards let him a house, and sold him the furniture therein; and has very often eaten, drank, and walked with him and the Marquis at the same time told him, That, upon killing the king, the army in Flanders, and parts adjacent to France, was to come over into England to destroy the Protestant party; and that money was levying in Italy, to recruit and supply forces, in the place of those that should so come over into England: And that, after that time, there should be no more parliaments in England: and that the duke of York was privy to all these designs. See a Note at the end of Fitzharris's Trial. VOL. VIII. 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. This Examinant hath known Kelly about 12 years; in part of which time he has had intimate conversation with him, and hath sometimes confessed to him. That he hath been acquainted 6 or 7 years with M. De Puy, a servant to the duke of York: and that, soon after the murder of sir Edmundbury Godfrey, this De Puy told this Examinant, That that murder was consulted at Windsor. And, about the same time, said, That the duke was very desirous to come to the crown; for that the king was uncertain, and did not keep 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 in Ireland, a part of which was this Examinant's father's; and this Examinant, being acquainted with Father Bedingfield, asked him, how he could give absolution to the 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 confessor," To which this Examinant replying, with some warmth, "But, since you know it, you ought to take notice thereof;" the Father answered, "Be 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 there about eight days: Where meeting Father 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 case, to send Marshal Belfonds into Ireland with an army of 10,000 foot, and 2,000 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 kingdom 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, in order to distaste the king, and make him afraid and jealous of his people." That he knew Mr. Everard at Paris in 1665; and hath since continued and increased his ac quaintance with him; that the opinion of Father Patrick was an encouragement to him to correspond and concur with Mr. Everard, as 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, 228, of this Collection. ૨ As soon as the Examination was read, Sir John Harlop moved that it might be printed, to shew the world the devilish conspiracies of the papists. Sir William 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 we have heard before, and because we all know, that, since lord Stafford's Trial, people have been preavailed upon to believe the plot not true. This paper confirms Oates's, Bedlow's, and Prance's informations; but I would not have that paper printed which reflects upon the king. Mr. Secretary Jenkins. I will not trouble you, but with what part I had in this affair. The scandalous paper reflecting upon the king was read over to his majesty by Waller; whereupon I issued out warrants to apprehend Fitzharris, &c. and Waller saw the execution of them. Sir F. Winnington. This is of great importance, and in it we ought to acquit ourselves like wise men. We, that come out of the country, hear that the treasonable paper should have been sent to many gentlemen, and then they should have been seized upon as traitors in the conspiracy in this plot. All is now at stake; therefore how long or short a time we are to sit here, (the trooper, Harrison, that was seized, said, “We should have other guards at Oxford than we had at Westminster,") let not our courage lessen. This being our case, let us go to the bottom of this business of Fitzharris. It has been moved, "That he should be sent for hither;" but we have experience, that, when once an accusation in parliament is against a man upon record, and in the greatest court in the kingdom made known, malefactors have not been cleared, and have not had justice; therefore I move, "That you will take care that this man be impeached of high-treason," and, it may be, then he will tell you all. master, in the character I bear under him; and I will not go on the message.* A great cry, "To the bar, to the bar." Sir Thomas Lee. I would not have said one word, but that the very being of the parliament is in the case. It is to no end to sit here any longer, if this be suffered. Jenkins had no ground or reason to bring the king's name in question, nor was there any reflection upon his majesty, or Jenkins, in sending him with the impeachment. But, for Jenkins to say, "Do what you will with me, I will not go with the message!" Let his words be first asserted, and read to you, before he explain them, according to the order of the House. Sir George Hungerford. I never heard such words uttered in parliament before, "That the whole House of Commons should reflect upon the king in sending him with the message," and " that he will not obey your commands." Pray call him to the bar. At which there was a loud cry, "To the bar, &c." Mr. Trenchard. The House will grow contemptible to the extremest degree, at this rate. Such a thing was never before in parliament; * Bishop Burnet gives the following character of him: "Jenkins, now made Secretary of State, was the chief manager for the court, against the Bill of Exclusion: he was a man of an exemplary life, and considerably learned; but he was dull and slow: he was suspected of leaning to popery, though very unjustly; but he was set on every punctilio of the Church of England to superstition; and was a great assertor of the divine right of monarchy, and was for carrying the prerogative high: he neither spoke nor wrote well." History of his Own Times, vol. 1, p.481.-In Bulstrode's Memoirs, p. 372, there is a letter from sir Leoline Jenkins, dated the 31st of March, 1685, in which is the following account of himself: "His majesty hath, upon my most humble and even importunate suit, given me leave in regard of my health, to resign my post of secretary, and hath bestowed it upon Mr. Godolphin. My great concern is, that this being a pure effect of my most humble supplication, and even intolerable importunity, with his majesty and the duke, it may not be imputed to any surprize upon me at court, much less to my disliking of the present measures there. This 1 say, bemalicious constructions they can invent, upon cause I know the fanatics will put the most an incident at court."-Upon this, Mr. Hatsell Ordered. "That the said Examination be observes, "Whoever will recollect the proceedforthwith printed." Sir Rob. Clayton. When Mr. Recorder and myself examined Fitzharris in Newgate, he asked "Whether he had said enough to us, save his life?" We told him, "We thought not; but if he would ingenuously confess what counsel he had for drawing and modelling his treasonable paper, and be ingenuous in the whole, we would take his farther examination;" and wished him to consider of it. But, the next day after he promised he would, he was removed out of our reach to the Tower. Resolved, "That Edward Fitzharris be impeached of high-treason, in the name of all the Commons of England; and that Mr. Secretary Jenkins do, to-morrow morning, go up, and impeach him at the bar of the Lords' House." Secretary Jenkins. The sending me up with this impeachment reflects upon his majesty, my ings, that were going on at this period, with respect to the surrender of charters throughout Old Bailey, with other instances of the deterthe kingdom, the criminal prosecutions at the mination of the king and duke of York to establish absolute power in this country, will know how to appreciate the character of a stateman, who was fearful he should be suspected of retiring from office, from disliking the present measures of the court." |