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B08379 An answer to the protestation of the nineteen Lords against the rejecting of the impeachment of Mr. Fitz-Harris 1681 (1681) Wing A3438A; ESTC R172370 7,891 12

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An Answer TO THE PROTESTATION OF THE Nineteen LORDS Against the Rejecting of the IMPEACHMENT OF Mr. FITZ-H ARRIS THEY say first That because in all Ages it hath been the undoubted Right of the Commons to impeach before the Lords any Subject for Treasons or any Crime whatsoever and the Reason is Because great Offences that influence the Parliament are most effectually determined in Parliament and hence they affirm the Impeachment of Mr. Fitz-Harris unduely rejected The Parliament is certainly the most High Court of the Nation and by the Writs the Members of both Houses are called to Treat de quibusdam arduis certain difficult Matters or Things of a high Nature which concern the King Kingdom and Church and therefore 't is rational to think that any Crime whatsoever doth not properly fall under the Cognisance of this High Court nor can any Crime whatsoever be such a great Offence as to use their own Phrase may influence the Parliament and be most effectually determined in it If this were admitted in a short time the Jurisdiction of all inferiour Courts would fall to the Ground and it may be supposed it would be thought necessary by these Noble Lords to have a perpetual Parliament for Goal-deliveries and the determining Crimes and Misdemeanours of the lowest Nature The great Offence in this particular Case is High Treason and if what hath been said above be a valid and convincing Reason against the Lords for rejecting the Impeachment it doth seem to infer a Necessity or Right of trying all Treasons by Impeachment in Parliament because they influence Parliaments and are most effectually determined in them Certainly if there were any Force in this Argument or Reason the Righ of Tryal of High Treasons was never understood before this time for in all Ages there have been Traytors and the greatest numbers of them have been tryed out of Parliament either in the Kings Bench or in the Counties where the Treason was committed or by special Commission of Oyer and Terminer or Noblemen by a Lord High Steward and their Peers and very sew have been tryed in Parliament in respect of the many which have been tryed out of it as for Instance in later times (a) Camb. Eliz. A. D. 1572. the Duke of Norfolk and Earl of Northumberland sixty six (b) ibid. A. D. 1569. petty Constables and others engaged in the Northern Rebellion (c) ibid. A. D. 1584. Carter Throckmorton and divers others in the latter end of Queen Elizabeth's Reign the (d) ibid A.D. 1601. Earls of Essex Blunt Danvers and Maricke Knights Bainham Orell Littleton (e) ibid. A.D. 1585. sol 308. Dr. Parry who was arraigned at the Kings-Bench Bar in Westminster-hall condemned and suffered Death as a Tray to in the Palace yard at Westminster sitting the Parliament at that time 3. Jacobi the Gun-powder Traytors were tryed by Commission of Oyer and Terminer sitting the Parliament and the Regicides were tryed at the Old Baily c. 29. sitting the Parliament 1660. By Magni Charta no man is to be condemned but by lawful Judgment of his Peers which hath been confirmed and declared to be the Common Law of the Land by many Acts of Parliament The House of Commons were never chosen intrusted or impower'd by the people they represent to do any thing which is not according to the Common Law nay the whole Parliament cannot do any such thing unless they make a Statute first to make void that Law 'T is farther the Common Opinion of Lawyers That all Acts of Parliament are void in themselves or not binding which are made against the Fundamental Laws of which if this Tryal by Peers be not one there is none in England He knows not the value of Tryal by Juries that desires to be tryed any other way T is dangerous and against the Liberty of free English men to admit of and have Precedents made to warrant Tryal without Juries Innocents may be harangued to death by their Prosecutors and the vilest Criminals saved by the same means the Speeches passionate Expressions and Inclinations of such men prevailing much upon and influencing the Witness●s either to Contract or Delate their Evidence against the Person Impeached especially when they know they may do it freely with Impunity and by approbation of potent Pursuers But it may be said What if the Commons desire to impeach a Commoner before the Lords for Treason may it not be done Yes if the Lords be willing to receive the Impeachment for they cannot be forced or oblig'd against their wills to hear and pass Judgement in Criminal Capital Cases upon any but their own Peers In the 4th of Edward the Third Rot. Parl. N. 1 2 3 4 5. in parliament Simon Bereford Tho. Gournay and John Matravers Knights Bogo de Bayons John Devarel and William Ogle all Commoners were sentenced to Death by the Lords for murthering King Edward the Second and afterwards in the same parliament when the Lords had given Judgement against them proviso and agreement was made and recorded in these words Et est assensu accord c. And it is assented and accorded by our Lord the King ibid. n. 6. and all the Grands in full parliament That albeit the said peers as Judges of Parliament took upon them in the presence of our Lord the King to make and render the Judgment c. yet that the said Peers who now are or the Peers which shall be in time to come be not bound or charged to render Judgement upon others than their Peers For that the Peers of the land have Power to do this But thereof for ever to be discharged and acquitted And the foresaid Judgement now rendered be not drawn into Example or Consequence in time to come whereby the said Peers may be obliged and charged hereafter to Judge other than their Peers contrary to the Law of the Land if the like Case happen which God forbid This Proviso and Argument was made in full Parliament and it had these two Respects 1. To satisfie the Commons that the Lords intended not by their Judgment to alter the course of the Common Law and therefore they declared and disclaimed against Power to do this and confessed it was contrary to the Law of the Land 2. To preserve their own Right to Judge none but their Peers in Case of Life and Death From hence it may be presumed that if at any time the Commons force an Impeachment upon the Lords against a Commoner for Treason that may be try'd at Common Law and then Vote that it ought to be try'd in an Inferiour Court men may be apt to censure such Proceedings and look upon them as a Design and Artifice either to delay Justice by deferring the Tryal of the Criminal and as it were by that means to contrive his Pardon or by passionat Harangues to urge and procure his Condemnation which might not have happened in Tryal by a Jury who gave in
can be no other Inflicted To inforce this Instance of an Appeal they add by a Note in the Margin That it is always to be preferred and upon notice thereof all prosecutions at Suit of the King are to stop till the prosecution at the Suit of the party be determined But the Statute Law is otherwise The time limited for an Appeal to be taken 3. Hen 7. c. 1 is a Year and Day and the King shal not stay this Year and Day from prosecution at his Suit to save the Suit of the party as was anciently accustomed but may Arraign the Murderer at any time within the Year and Day and not tarry that time for any Appeal to be taken for the same Murder but if the Murderer be Arraigned and Acquit at the Kings Suit the VVife or next Heir to him that is Slain may have and take their Appeal within the Year and Day after the Murder done against the person so Arraigned and Acquit There have been also appeals of another nature Vide pl. Coron coram Rege in Parliamento 21 Rich. 2. Stat 1. H. 4. c. 14. made and pursued in Parliament as well against Peers as Commoners by certain Lords called Appellants which caused great Mischiefs and inconveniencies in the Realm and therefore it was Ordained and Established That from henceforth all Appeals to be made of things done within the Realm shall be tryed and determined by the good Laws of the Realm and it was then Accorded and Assented that no Appeals be from that time made or pursued in parliament in any time to come The word Appeal signifies an Accusation and so doth the Word Impeachment and the Word Impeachment seems to have been more frequently used for prosecutions in parliament when the VVord Appeal grew out of use now if all Appeals which had been before brought in parliament and being chiefly in capital and criminal Causes were removed from that Judicator by this Law and referred to be Tryed by the Laws of the Land why ought not Impeachments of a Commoner for Treason by the Commons to be also referred to the Common Law seeing great Inconveniences Mischiefs may arise from this way of Tryal by the Impeached person losing his Tryal by his Peers or by being wronged by a passion at and violent prosecution or the King and Nation injured by the too remiss and cold management of a contrived Method of Accusation 'T is not to be doubted but the Ground and Reason of this Law is and may be the same against impeachments of Commoners that it was against Appeals and therefore by consequence in force against them especially seeing there is not so much as one Precedent to warrant them an in truth an impeachment of the House of Commons is no other than an Appeal to the King in Parliament These Lords interpret this Rejection of the impeachment to be an absolute Denyal of Justice because they say as before the same Suit cannot be Tryed any where else it hath been shewn before that this reason is a meer Quibble of afond Groundless Nicety Nor can any Man though but of a mean capacity think it to be a denyal of Justice to reser the Tryal of a Crime to an Inferiour Court where it is most properly tryable by the Laws of the Land Nor was it certainly a Denial of Justice in the Lords in Drakes Case which they ordered to be Tryed in the Kings Bench. The Words of the Order are these The House taking into consideration the Impeachment Lords Journal Merc. Dec. 19. 1660. brought up from the House of Commons in the name of all the Commons of England against William Drake Merchant and Citizen of London and their Lordships apprehending they may not have time before their Dissolution to proceed in Judicature against him It is therefore ordered and declared by the Lords in Parliament That the King's Attorney General do in His Majesti's Name proceed against the said VVilliam Drake in the Court of Kings Bench upon the said Offences according to the ordinary course of Law This reference of this Case to the Kings Bench was not protested against by any of the House of Peers nor so much as questioned nor thought to be Arbitrary Illegall or against the constitution of Parliament His Crime was for publishing a Pamphlet in the name of one Phillips called The Long Parliament revived Com. Jurnal Mart. Dec. 4. 1660. the Impeachment was in this form The Knights Citizens and Burgesses of the House of Commons in the name of themselves and all the Commons of England do hereby declare complain and shew against VVilliam Drake Merchant and Citizen of London that in contempt of His Majesty's Crown and Dignity and of the Laws and Government of this Kingdom and out of a wicked and malicious in●antion to raise and stir up Sedition and Division in this Kingdom and against they Peace of our Soveraign Lord the King c. By this proceeding of the Lords it seems they thought not then that one and the same Impeachment might continue from Parliament to Parliament without being revived or a new one brought up and a man would think they had reason on their side for ' its hardly conceivable when a Court is dissolved and not in beeing how any thing depending in that Court should have a Beeing or remain What can support it What can give it a Beeing or Existence In the Prorogations of Parliaments all businesse ceaseth and begins new much more it ought to do so when the Court it self falleth and loseth its beeing Lastlie they say Our Law saith in the Person of the King Nulli negabimus just●tiam We will deny Justice to no single person yet here in this case as they apprehend Justice is denied to the whole Body of the people and this may be interpreted an exercising of Arbitrary power and will as they fear have influence upon the constitution of the English Government and be an encouragement to all inferiour Courts to exercise the same Arbitrary Power by denying the Presentments of the Grand Juries c. As to a denial of Justice in this ca●e it hath been clearlie made appear before there neither is nor can be any such thing by rejecting this Impeachment and referring the Treason contained in it to be determined and tryed by the Common Law and therefore what is not nor can be cannot be interpreted an exercising of Arbitray Power nor have any influence upon the constitution of the English Government This whol last Paragraph is indeed a severe Reflection rather than Reason to what end it 's needless to tell the World for this very action of waving his Impeachment is so far from encouraging inferiour Courts to exercise an Arbitrarie Power by denying the Presentments of Grand Juries as manifestly it hath a contrarie operation and effect in Law for by this means this great Conspirator in the Popish Plot to murder the King and destroy and subvert the Protestant Religion will receive his Tryal as the Law directs by Presentment and Verdict of a Grand Jurie and Petty Jury one or both who are his Peers Having done with the Protestation it self it may not be impertinent to make a Query or two about the subject matter of the Indictment and Impeachment What if there be several and different Treasons for which Mr. Fitz Harris may stand accused Shall not the King proceed to try him according to the due course of Law The Treason for which he is prosecuted at Law may not be the same and in all probabilitie it is not for which he was impeached The House of Commons declared not what the Treason was in particular and the King had the first possession of the Case having first examined the Criminal Shall the course of the Common Law be obstructed or delayed by the Impeachment When if he receives not sentence of Death upon his first Indictment at Law he may be remanded to Prison and afterwards prosecuted by Impeachment or upon new Indictments at the Common Law for his other Treasons if the Gentlemen of the late House of Commons who have or received the Information against him shall think it expedient Have not all the horrid damnable Popish Plotters which were Commoners been tryed by the common Law notwithstanding the Sitting of the Parliaments What necessity is there then of any extraordinary way by Impeachment EDINBVRGH Re-printed by the Heir of Andrew Anderson Printer to His most Sacred Majesty Anno Dom. 1681.