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ID Title Author Corrected Date of Publication (TCP Date of Publication) STC Words Pages
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