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A51022 Mr. Fitz-Harris (now prisoner in the Tower) his case truly stated; humbly offered to the free-holders of England, why he ought to be tried by a jury of his neighbours, and not by the House of Peers; in a letter to Mr. C.L.C F.S. and B.H. greeting. 1681 (1681) Wing M2265; ESTC R214197 5,093 4

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House of Commons so potent and strong c. The truth plainly is it is more or less strong as more or less suits your humour Oh but say you this is the Law in Parliament the Lex Consuetudo You will not grant the King House of Lords or any private person can call any Commoners life into question before the Lords without the consent and approbation of the House of Commons then how will you reason in Law that the House of Commons may Give me one sound honest reason for the difference But if by seeking to bind the House of Lords to retain and judge a Commoner upon an Impeachment from the House of Commons you introduce or warrant the King House of Lords or any private persons to do it or the like Where are you then The same R●ason the same Law is a Maxim never fails But for the People of England be it said anciently the Lords never gave Judgment of Life or Death upon any but their Peers This with little Oil and Sand might easily be made out from the Rolls in the Lords House a Commoner was in these cases out of the Jurisdiction of their Court I know of one opinion against this but no matter it alters not the Law About Edw. 2. and Edw. 3. it was somewhat disputed as now and in Simon de Beryfords case the Lords being mightily importuned to give judgment against him refused a considerable time alledging he was a Commoner and they were not bound to give Judgment of Life and Death on him but at length did upon an Act of King Lords and Commons passing that this should not be drawn into president The Act is Rot. Parl. 4. Edw 3. n. 6. to this effect It is enacted That albeit the Lords and Peers of the Realm as Judges of Parliament in the Kings presence had taken upon them to give judgment in case of Treason or Felony against such as were not their Peers That hereafter no Peer shall be driven to give Judgment on any other but their Peers according to Law Note the words according to Law shew the Law was so before The words the the Kings presence are mentioned because the Kings assent was antiently as the Commons demand seems yet necessary in the Lords judging any Capital crimes Besides should the Lords be bound to judge all men Impeached before them it might be made ill use of an Artifice sometimes to divert c. them Nor seems it fit and becoming the honour and dignity of that House that it should stoop to trouble themselves with trying every inconsiderable Fellow for every Treason and felony that may happen though perhaps to a shilling or farthing value which yet they are as well bound to do as trie Fitz-Harris let his Crimes be what they will I shall not judge them before he is heard and Witnesses at his Trial. By this means too the great business of the Nation that of the Parliament might be fettered delayed obstructed c. when yet the Trial might be as Well if not better as aforesaid by and before others The Lords as to the practice also have accordingly several times before done the like as they did now They referred the Trial of one so impeached to another Court since the Kings happy restauration Oh but say you Why should the Lords make use of this Priviledge now when oftentimes they have done otherwise notwithstanding the said Act c. Truly sometimes they must use their Liberty of refusing such Trials else lose it both to their own and our danger when better than now Especially since you seem so hotly to deny it already since their was so much such extraordinary and so far greater and more earnest pressing business before them and for them to do and since had the Lords as you say retained the impeachment Fitz-Harris could not have been Tried till the leisure and pleasure of the House of Commons were it should be so If he should have never been tried he could never be brought to Justice But no question the House of Commons were zealous for his speedy Trial and Death if deserved and would have made a vigorous prosecution else it were an ingenious way of new found pardoning There is some small difference sure between denying Justice to be done at all and between leaving or Commanding it to be done by other Courts as the House of Lords did in this case There is some small difference also between Courts that ought to do other and but for necessity if ever such things as these and other Courts that ought to do such things as these onely and whose onely end and business these things and Trials be Oh but no other Court can trie this now there is a Vote of the House of Commons against it It is true but is their Vote any Law any Judgment any Record any matter or thing in Law more than the noise of Thunder last Midsummer is to us now If it would be ever so much as taken notice of it was onely during the same Sessions and is now become abortive and so as if never had been He that holds contrary endeavours by it altering c. the Government Whereas nothing in our Government is binding but Common Law or other from King Lords and Commons nor ought to have mere influence than what onely good manners allows Mr. Smith You in your Commentaries say All prosecution at the Suit of the King must stop till that of a private Person be determined Good now Did you ever consider it before Is it not diametrically otherwise in all Civil Causes undoubtedly And that it is so altogether I must tell you there are plenty of Authorities better than yours As for a taste Albeit the Judges finding Appeals were usually prosecuted more effectually than Indictments would therefore endeavour that all Parties might be tried on Appeals and so would sometimes stop the Indictment which is the Kings Suit to rather try on the Appeal which is the Suit of a private person yet if they were informed the Evidence were clear c. they would always proceed at the Kings Suit and never stay for the Suit of the Patry 7 H 4. 35. 21 H. 6. 28 29. 38. Or rather than the Kings Suit should be long delayed as if on Infant brought an Appeal now because it could not be tried till he came at Age they will Indict the Party c. and immediately trie him again for it 21 Edw. 3. 23. tit ' Age in Fitzh 57. in tit ' Coron in Fitzh 278. Anno 13 H. 6. ibid. pl. 279. Anno 32 H. 6. Let the Appeal of what person soever and whensoever depend yet that the Judges might immediately trie the Offender at the Kings Suit I would is 16 E. 4. 1 Coron Fitzh 469. Anno 8 H. 5. and so were several others tried tin ' conspir Fitzh H. 6. tit ' coron ' Fitzh 82. 7 H. 4. 35. b. Thus may we see how justifiable the Lords were in what they did how generous in preserving our Rights of Trial by our Peers how much worthy more of our grateful acknowledgments than misunderstandings how we ought maturely to consider all things before we judge and how we may unjustly err in our Opinions before we rightly understand all circumstances and reasons of the matter we presume to give our opinion of Therefore ought we to meddle with nothing but what is within our own Sphere and capacity and that neither but when free of Passion and Prejudice Cum multis aliis quae nunc perscribere longum est Printed for John Smith in Great Queen-street 1681.
Mr. FITZ-HARRIS Now Prisoner in the Tower His CASE truly stated Humbly offered to the Free-holders of England why he ought to be tried by a Jury of his Neighbours and not by the House of Peers In a Letter to Mr. C. L.C. F.S. and B.H. Greeting VVHat a noise is this you Polititians make sipping and smoaking at Coffce-Houses Cannot our Capitol be otherwise saved but by such Geese as you Forsooth now you have got somewhat by the end Now you want not for something to fling in the teeth of Government now you are pleased What! the House of Lords you say has rejected the Impeachment against Fitz Harris This is your Monstr ' horrend ' inform ' ingens c Realy it 's pretty such fine Fellows as you should thus judge and censure what you no more understand than a Cuckoe making a Cabinet But a Fools Bolt is soon shot whither will Design Envy Malice and Impudence run you think I warrant you the House of Lords is like a Club at a Tavern or such Vermine as you at a Coffee house But why so fast Consider on it By the Common Law by Magna Charta and by 37 other several Acts of Parliament confirming c no man is to be tried but by his Peers All Dukes Marquesses Earls Viscounts and Barons of the Lords House of Parliam in respect of their Nobility be Peers amongst themselves And they and any of their Dutchesses c. be always in Case of life and Member to be tryed by the rest of them and not by Commoners And all others beneath them be Commoners and Peers amongst themselves and to be tried by these Peers of theirs but not by any of the said Lords Only the Lords the Bishops if Parliament sit be tried by the said Lords else the Commoners Consider your priviledges in this A Commoner when he comes to be questioned for his life is tryed by his Neighbours and ' acquaintance these probaby knowing most of the Fact of the person accused and of the witnesses c. those he can speak to c. those which are not so much above him as to esteem too little of his life c. those he knows whether fair indifferent and good men for him to be tried by By a Jury that he may purge except against and choose 20. and in some Cases 35. out of that he likes not without shewing any the least cause why and always as many more as he will if he can shew any cause He is to be tried by Judges on their Oaths and by the Jury all on their Oaths even by two Juries all several persons on their several Oaths He is to be tried according to the Common Law and Statutes If his Judges or Jury err against him they are punishable But in that Trial before the Lords is not so so much as one Jury unless you call H. of Commons that one No exceptions can be made against any of the Triers though never so great cause None of the Judges nor others be here on their Oaths The Triers c. be not Neighhours c. but almost all perfect Strangers c. the Trial is per leg consuetud Parliamenti unknown to others so most proper for themselves or at least for Offenders in Parliament as matters arising in War by a Court Marshal If any err against one in his Trial never so grosly where is the remedy In short Gentlemen He that understands a Trial by Juries will never part with wave or discountenance it he that is for any other is against it Why should I wish another that Trial I wish not my self if in his circumstances Why should I press for that other Trial before the Lords in stead of this Why should I seek to bring such Trial in practice or so much as consent to such a President of their changing the Trial No man knows the consequences Persons and Times may alter there may come as bad a H. of Commons as ever did a good one Presidents are no little authentique in Law no little dangerous Against this Trial by Jury was once an unhappy Act 11 H. 7. c. 3. That Justices of Assizes or Justices of Peace should without any Verdict of Twelve men upon Information before them have full power of hearing and determining all Offences c. But says Lord Cooke by Colour of this Act shaking the Fundamental Law of Juries it is incredible what horrid oppressions exactions c. to the utter undoing of infinite numbers of people were committed And experience soon taught the Parliament 1 H. 8. c. 6. to repeal it Are Parliaments always out of heats c. or free of mistakes Who are What is infallible any thing but the Deity Was not there a Subject of this very Kingdom committed to the Tower and though ready and desirous to be heard yet judged and attainted by Parliament without ever being heard or sent for Rot. Parl. 32 H. 8. If a whole Parliament be subject to failings c. much more part of it Why then so fond and mad of Trials in Parliament Thus seeing your Right is Trial by Juries what Law is there to take away dispense with c. this Trial by Jury That which is either Common Law or Statute Law cannot be altered without an express Statute Co. L. 115. But where is there any such Statute for enabling the Commons to impeach c. any Commoner or the Lords to trie any person of Life and Death but the Lords own Peers Oh but the H. of Com. is the Grand Jury of the Nation the Inquisitors General the Guardians of the Kingdom the Representatives of the People all the Commonalty all that by such Trial can possibly suffer fine words And so if they consent the person offended consents in Law in as much as his Representative consents and consent takes away the error Truly this is fine something it seems may be said for any thing But if choosing the House of Commons do implicitly impower it to do some things must it therefore all things I choose Arbitrators or make a Letter of Attorny to one he can do no more than what is expresly mentioned for him to do nor can he do that otherwise than expressed But this is too large a Subject at this time onely this I cannot any ways impower any one to do any thing which is not according to Law so neither can my choice of Parliament men enable them to do any thing but according to Law any other Power is void in Law absolutely void The power given Parliament men is the weaker also in as much as so general and onely implicite and therefore to be construed strictly Thus How have they power in this case to consent for me Nay Do not you say your selves that several Acts of Parliament the King Lords and Commons are not binding in as much as against the Fundamental Laws of the Kingdom against Magna Charta c. Then why the single Account of the