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 'tis 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 timesCamb. Eliz. A. D. 1572. the Duke of Norfolk, and Earl of Northumberland, sixty sixibid. A. D. 1569. petty Constables, and others: engag­ed in the Northern Rebellion,ibid. A. D. 1584. Carter Throckmorton, and divers others, in the latter end of Queen Elizabeth's Reign, theibid: A.D. 1601. Earls of Essex, Blunt, Danvers, and Maricke Knights, Bainham, Orell, Littleton, 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.

'Tis 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. Tis 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;

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 [Page 3] 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 [Page 4]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, 'tis 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 'tis 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 'tis 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. 'Tis 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 Ist. 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 thatShepards 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 VVife, 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 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 [Page 6]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? 'Tis 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.