An answer to the protestation of the nineteen Lords against the rejecting of the impeachment of Mr. Fitz-Harris

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) (a) Camb. Eliz. A. D. 1572. the Duke of Norfolk , and Earl of Northumberland , sixty six (b) (b) ibid. A. D. 1569. petty Constables , and others : engaged in the Northern Rebellion , (c) (c) ibid. A. D. 1584. Carter Throckmorton , and divers others , in the latter end of Queen Elizabeth's Reign , the (d) (d) ibid: A.D. 1601. Earls of Essex , Blunt , Danvers , and Maricke Knights , Bainham , Orell , Littleton , (e) (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 their Verdict upon Oath , and are not so easily encouraged , over-awed , or byassed by Rhetorick .

And , it may be farther urged , that there is a Statute yet in Force , intituled , An Act to proceed , by commission of Oyer and Terminer , against such Persons as shall be examined and confesse Treason before the King 's Conucil , without remanding the same to be tryed in the Shire where the Offence was committed ; which seems most particularly to direct the Tryal of this Criminal , and the manner of it . 33. H. 8. c. 23. Be it therefore Enacted by the King , our Sovereign Lord , and by the Assent of the Lords Spiritual and Temporal , and Commons of this present Parliament assembled , and by Authority of the same , That if any Person or Persons , being examined by the said Council , or Three of them , upon any manner of Treasons , Misprisions of Treasons , or Murders , confess any such Offence , or that the said Council , or Three of them , upon such Examination , shall think any such Person so Examined , to be vehemently suspected of any Treason , &c. that then , in everie such Process , by the King's Commandment , His Majesties Commission of OYER and TERMINER , &c. shall be made , &c. to such Persons , and into such Shires or places as shall be named by the King , for the speedy Tryal , Conviction , or Deliverance of such Offenders , which Commissions shall have Power and Authority to Enquire , Hear , and Determine all such Treasons , &c. within the Shire and places limited by their Commission , by such good and Lawful Persons as shall be returned before them by the Sheriff , or his Minister , or any other , having power to return Writs and Process for that purpose , in whatsoever Shire or Place within the King's Domions or without , such Offen●●s of Treason so examined , were done or committed ; and that , in such Cases , no challenge for the Shire or hundred shall be allowed .

Secondlie , They say they cannot reject the Impeachment of the Commons , because that Suit or Complaint can be determined no where else ; for , if the Party impeached , should be indicted in the King's Bench , or in any other Court , for the same Offence , yet it is not the same Suit ; for , an Impeachment is at the Suit of the People , and they have an Interest in it , but an Indictment is at the Suit of the King .

This is all artificial Reason , or rather a mere Quible , if duely examined ; for , whether this Criminal's Tryal be by Indictment in the King's Bench , or by Impeachment , 't is the same Accusation , namely , for Treason , and the Prosecution in both Courts ( which is really and truly the Suit ) is for the same end and purpose ; that is , That the Delinquent be punished according to Law ; for 't is to be supposed that was the Intent of the Impeachment , and this may be done most effectually and legally , by the Tryal of his Peers , in an inferiour Court , according to the Course of the Common Law .

The ground of this wonderful Reason , is the different use of the two Words , Impeachment and Indictment , both which , signifie an Accusation , and the End and Design of this Accusation , is the same ; and 't is no great matter , whether this black Criminal receives the Sentence of being Hanged , Drawn , and Quartered , for his vile Treason , from the Lords in Parliament , the Judes of the King's Bench , or by special Commission , of Oyer and Terminer : but , most certainly , the most Legal way of Tryal , is by his Peers , by whom he may have the most equal Condemnation or Acquittal , there being not one precedent to be found , that comes up to , or is parallel with this Case .

Nor is the pretended preservation of the Interest of the people , an Argument of greater Moment , for , first it is very difficult , in Cases of Treason , to separate and divide the Interest of the King and People from each other . Have not the People an Interest in the King's Life , and in the Government , and is not this Interest the same with the Kings ? The preservation of both , is the joynt Interest of both , which really cannot be divided .

Secondly , the Interest of the People is founded upon publick Good and Benefite , by that it is measured , and of that they have their share ; so that tho it should be granted , one and the same publick Crime or Offence may intitle both King and People to several Suits ; yet , if by either Suit , such Offence may be duely , legally , and effectually heard , discussed and punished , the Interest of the people is equally safe , which way soever it shall be determined , whether in Parliament , or in an inferiour Court , in which last , such publick Crimes as this have been most frequently tryed . 'T is not the Name Greatnesse or Title of the Court , but the Publick Justice , that is legally done in it , that secures the Rights and Interest of the People .

Thirdly , The Protesting Lords say , by way of Example , or putting a Case , to confirm , or at least to illustrate their Reasons , That one and the same Offence ma intitle several Persons to several Suits ; as if a Murder be committed , the King may indict at his Suit , and the Heir or Wife of the murdered Party , may bring an Appeal , and the King cannot release that Appeal , nor his Indictment prevent the Proceedings in the Appeal , because the Appeal is the Suit of the Party , and he hath no Interest in it .

But , this Example of Appeal in Murder , if rightly understood , signifies nothing either to the Confirmation , or Illustration of the Reasons of their Protestation .

For an Appeal of Murder in our Common Law , signifies an Action or Suit given by the Law to the Wife , Coke I st . Instit. fol. 123. & 187. o. for wrong done to her Husband being murder'd or to the Heir , for wrong done to his murder'd Father , Brother , or Anceestor ; and any one that * * Shepards Abr. word Appeal . Stat. 30. Hen. 7. c. 1. sues an Appeal , must sue it in proper person ; and for advantage to be taken by the Wife , or Heir , for this wrong done , is the reason assigned in the Law Books , why an Appeal is given to them ; and why the King cannot release an Appeal , which is to be brought within a year and a day ; and if the Appellants fail in proof of the Accusation , the Appellees shall recover Damages against them or their Abettors .

To make an Impeachment of the Commons the same with this case , they must make it appear by precedents out of the Parliament Rolls or Journals , or by the Common or Statute Law , that the Commons have such an Action or Suit as an Impenchment of a Commoner for Treason , which may be tried in an inferiour Court given them before the Lords , so as they cannot refuse to hear and judge it , or they do nothing .

Otherways it may be in Impeachments , for Misdemeanors : Where though the Common Law may take notice of them , yet happy the Misdemeanor may be such as it cannot be sufficiently punished thereby ; but for all High-Treasons the Law hath provided ultimum supplicium , which is sufficient , and after that there 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 Wife 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 Word 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 William 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 William 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 .