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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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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