A CONFUTATION OF A Late PAPER, ENTITLED, AN ANSWER TO THE Lord's Protestation.  
IN A LETTER to a GENTLEMAN.  
SIR,  
I Have Received Yours, where you tell me, You are highly satisfied, that the Lords did only what they ought to have done, in Rejecting the Impeachment of Mr. Fitz-Harris; And this you have Gathered out of a Little Paper your Nephew sent you, Entitled, An Answer to the Lords Protestation. Now Sir, to Undeceive You as well as many others, on whom 'tis like that Paper might prevail, I have written this following Discourse, where I shall not undertake to Strip every Word or Sentence, but only Confute those more considerable Arguments, by which the Author would have us think, He hath not only proved it lawful for the Lords to Reject, but almost unlawful for them to Receive the Impeachment.  
In the first Place he says, The Parliament is the most High Court of the Nation; and then, 'tis Rational to think, That any Crime whatsoever doth not fall under the Cognisance of it.  
That the Parliament is the Highest Court of the Nation is very true; And 'tis as true, That the Commons have right to Impeach any Subject for Treasons or Crimes whatsoever, that concern the King or Kingdom; 'Tis not to be supposed. That by these words any Crimes, the Protestation means all Crimes, such as Felonies, Trespasses, Assault and Battery, which indeed fall not under the Cognisance of Parliament, but such only that Concern the Kingdom, as this of Fitz-Harris doth, and for which Impeachments are usually brought, so that this is a Crime that concerned the whole Nation; It did Entitle the whole Nation to a prosecution of it, and then for the Lords to hinder this Suit, was certainly a Denial of Justice to the whole Nation.  
But if this should be admitted, in a short time the Jurisdiction of other Courts would fall to the Ground, and it may be supposed, the Lords would think it necessary to have Perpetual Parliaments for determining Crimes of the lowest Nature.  
Very well, Sir, that because the Lords Assert a Right in the House of Commons of Impeaching for any Crimes that Concern the Kingdom, that they do also Assert, That all Offences that lie at the Suits of particular Persons should also be Tried by Way of Impeachment; so that by our Author's Inference one would think, that the Lords Protestation did mean, That none should be burned in the Hand or Whipped, but such as were Impeached by Parliament; Which is as far from the meaning of those Noble Lords, as our Author is from Truth and Ingenuity, in saying, That they would think it necessary to have continual Parliaments for the determining all Crimes, because they would have an Impeachment prosecuted according to the usual Practice of Parliament.  
But if this be a valid Reason against the Lords for Rejecting the Impeachment; it infers a Right of Trying all Treasons in Parliament, because they Influence the Parliament, and are best determined in Parliament.  
No, I think not, it only infers a Right of Trying such Treasons in Parliament as aught there to be Tried, such as shall lie under an Impeachment, not such as are by Way of Indictment, which the very Protestation proves; for the Reason why the Lords Protested, was not because it was a Treason, but because it was prosecuted by those that could do it not where but in Parliament; And to stop Prosecution there did quite incapacitate them of prosecuting; And if stopping of all Prosecution be not a denial of Justice to the Parties prosecuting, I do not know what is.  
If there were any force in this Argument, the Right of Trying High Treasons was never understood before this time, for there have been Traitors Triedout of Parliament.  
Sure our Author's Intellectuals at the Compiling this Work were indisposed with some Vertigo, otherwise he could not have so Egregiously mistaken the Sense of the Protesting Lords, as to think that by their Protestation they did mean, That the right Way of Trying Treasons was only in Parliament; Whereas it is clear from what they did, that they did only mean such Offences are to be Tried in Parliament as are Prosecuted by the Commons, that can do it not where else.  
By Magna Charta no Man is to be Condemned but by lawful Judgement of his Peers.  
So that to Try a Commoner in Parliament, when the Lords are not his Peers, is contrary to Magna Charta, and highly unlawful; Indeed, if Magna Charta did say just as he doth it would be so; But Magna Charta not only says, That no Man shall be Condemned but by lawful Judgement of his Peers, but it also says Or by the Law of the Land; So that there may be a lawful Trial of a Commoner, and according to Magna Charta, and not by his Peers, the Disjunctive proves; and that the Law of impeachment is the Law of the Land, and not contrary to Magna Charta; All must confess, when they consider how many there have been Tried of the Commons by way of Impeachment, since the making of Magna Charta, and not the least Objection made against the Lawfulness of the Proceeding, till our Author's Brains were delivered of this Brat; But pray mark the disingenuity of the Person, in endeavouring to impose on the World, by Mincing the Quotation, taking the Words that serve for his Turn, viz. By lawful Judgement of his Peers, and leaving out the words, By the Law of the Land; As if these were not as much of Magna Charta as the former.  
'Tis the Opinion of Lawyers, that Acts made against the Fundamental Laws, of which Trials by Peers is One, are in themselves void.  
So that it seems the Powers that laid these Fundamentals were greater than the present Powers, else Acts now made would be binding; But where was that Power Lodged, either in the King by Himself, or in Him Joined with his Parliament; Now 'tis impossible, that the King should have more Power without then he hath with his Parliament; And 'tis as irrational to say, That the King hath not as much Power now as in the time of Henry the Third, so that now there being as great Power in an Act of Parliament as ever, it clearly follows, That those Fundamentals may be altered.  
'Tis dangerous and against the Liberty of English men, to Admit of Trials without Juries; Innocents' may be Harangued to Death by their Prosecutors, and the vilest Criminals saved by the same means; Witnesses may Influence by Passionate Expressions to Contract or Dilate their Evidence.  
All this Amounts to a very high Reflection on the Parliament, intimating, That there is not as much Justice as in Trials by Juries, that there the Innocent are liable to be Harangued into a Halter, and Delinquents to be saved by Taking Orations; Then it seems the Lord Stafford's Head was Harangued off his Shoulders; for his being a Peer doth not alter the usual Justice of the Court. Surely, if the People was as knowing as our Author, they would Petition for an Act against Impeachments, it being as he saith, a Proceeding Attended with a great deal of Injustice and Partiality.  
But if the Commons desire to Impeach a Commoner, may they do it? Yes, if the Lords are willing; for they are not Obliged to Pass Judgement on any against their Wills but their Peers, as 'tis Proved from the Case of Bereford, Gournay, and Others who in the 4th. of Edward the Third, had Judgement Passed on Them by the Lords. And afterwards it was Accorded by the King and all the Grands, That albeit the Peers as Judges of Parliament, took upon Them to make and render the said Judgement, yet that the Peers shall not for the future be bound to Render Judgement on any but their Peers.  
This Proviso was made in full Parliament with these two Respects.  
1. To satisfy the Commons that they intended not by their Judgement to Alter the Course of the Common Law, and therefore they declared against Power to do this, and Confessed it was contrary to the Law of the Land.  
2. To Preserve their own Rights to Judge none but their Peers, in Case of Life and Death.  
So then, this Precedent is urged as an Argument to prove, That the Rejecting of the Impeachment was lawful; But let us consider whether the Case of Bereford and the rest be the same with the Case of Fitz-Harris; If it be, the Author hath surely overturned the Protestation; If it be not, it will no ways serve his turn, Bereford by the Command of the King was brought into Parliament, and there had Judgement at the King's Suit, which by the Way was very Illegal; for all Indicted aught to be Tried by their Peers; Fitz-Harris was Impeached by the Commons, and at their Suit could be Tried no where but in Parliaments; And now that these two Cases are not the same is very clear; And if not the same, than our Author cannot from hence infer, That the Rejectment was lawful, for when a Precedent is brought for a Proof, the Precedent must always be the same with the thing that's to be proved; Now seeing the Case of Bereford and Fitz-Harris is not the same, it necessarily follows, that nothing can be inferred from the Case of Bereford, to the Case of Fitz-Harris; And indeed 'tis to me very strange, That because the Lords Accorded, that they would not be Obliged to try a Commoner, which ought to be Tried at the Common Law, our Author should infer, That they are not likewise obliged to Try a Commoner, when he is prosecuted at that Suit that can be Tried no where but before the Lords in Parliament; This is to make an Indictment and Impeachment the same; And if so, than an Indictment may be found by the Commons in Parliament, and an Impeachment may be brought out of Parliament; To Assert which, would be the highest of Nonsense; And indeed I should suspect that Man to be of a distempered Understanding that should affirm it; 'Tis yet more apparent, this can no ways prejudice an Impeachment, for that was done to assure the Commons the Lords intended not to alter the Course of the Common Law; Thence it follows, That the Subject-matter of that Act was such as ought to have been Tried at the Common Law, of which an Impeachment is no part; And consequently, could not be concerned in this Act of the Lords.  
But it may be Presumed, that if the Commons should force an Impeachment on the Lords against a Commoner, that may be Tried at the Common Law, and Vote that it ought not to be Tried in an Inferior Court, Men may be apt to think it is a design to delay Justice, or to get a Pardon.  
Indeed I really think, that what induced the House of Commons to this Impeachment was not a pure design of Prosecution, but because, they would create an Opportunity of making a farther Discovery of the Design Fitz-Harris was engaged in; But let the Motive be what it will, the Prosecution is still the same, the Impeachment altars not whether the Commons did it with a design of Prosecuting or Discovering; I shall pass by the Statute he quotes, for it can no ways be applicable to our Business, because it only lays down the manner of Proceeding on Trials out of Parliament.  
But for the Lords to say, That an Impeachment and an Indictment are two different Suits is a mere Quibble; for whether this Criminals Trial be by Indictment or 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, the Punishment of the Delinquent.  
I am highly sorry, to see a Man of great Knowledge and Understanding, as the Reputed Author of this paper is said to be, so strangely Halt in his Intellectuals, as to Assert that there is no difference betwixt an Indictment and an Impeachment, because they are both Accusations, and both tend to the same End, namely, the Punishment of the Delinquent; So then, according to our Author, two Ways that lead to London, one of which comes from the North, and the other from the South, are not really two different Ways, because they are both Ways, and both tend to the same End. Yet I believe, there is no Traveller, but would really think these Ways do plainly differ, notwithstanding they are both Ways, and both lead to the same place; And I believe, there is no Lawyer but our Author, but thinks an Impeachment and an Indictment two different Suits, notwithstanding they are both Accusations, and both tend to the same thing, namely, the punishment of the Delinquent; for that that makes them differ, is not because they are both Accusations, and aim both at the same End, but because the Parties prosecuting do it for different Reasons, one for Himself, the other for the King; And seeing to prosecute for the King and for ones self is not the same thing, it clearly follows, that an Indictment and an Impeachment do really differ; And if so, then what the Lords Asserted in their Protestation is not a mere Quibble.  
But the Ground of the wonderful Reason is the different use of the two Words, Impeachment and Indictment, both which signify an Accusation, and the design of both is the same, and it matters not, whether Punishment be by the Lords or by the Judges at Common Law, but the most equal Way will be by his Peer●●●▪ by whom he may have the most equal Condemnation or Acquittal, there being not the Precedent that comes up to, or is parallel with this Case.  
That an Indictment and an Impeachment do both signify an Accusation, is true; And 'tis as true, that they are different Accusations, for one is the Kings, and the other the People's; And seeing an Act of the King do really differ from that of the People, it follows, that an Indictment and an Impeachment are two different Suits; And indeed it had been no great matter, whether Fitz-Harris be Condemned in or out of Parliament, had not the Commons by their Impeachment Entitled themselves to his Prosecution, for by this Act they made it their Suit; And although the Delinquent may be punished elsewhere, yet this is no satisfaction to them, because not done at their Prosecution; So that the Reason why the Lords Protested, was not because they thought Trials in Parliament, purely Considered, more Legal than those out of Parliament, but because the Delinquent was now Prosecuted at the Suit of the Commons, who could do it not where but in Parliament, and to hinder Prosecution there, was to stop all Prosecution to them, which certainly is Injustice.  
Indeed I must Concur with our Author, that Trials by Peers is most Legal out of Parliament; But if he means that 'tis the only Legal Way of Trying Commoners, I cannot be of his Opinion; for I believe Trials by Impeachment before the Lords; are as lawful and as just as Trials by Juries, and the Lords as tender in Giving Judgement, notwithstanding they are not upon Oath, as the Juries are, of their Verdicts; But what our Author means by these words, There being not one Precedent Parallel with this Case, I cannot tell, if he means, That there never was a Case Parallel with the Case of Fitz-Harris, that is, the Impeachment of a Commoner; Be sure he hath Consulted no other History but Tom Thumb or Guy of Warwick, for every King's Reign abounds with Examples of this Nature, and always thought both just and legal.  
The Case of an Appeal, if rightly understood, signifies nothing, for who Sues an Appeal must Sue it in proper Person, and to make an Impeachment of the Commons the same with this Case, it must be made 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 Impeachment of a Commoner for Treason, which may be Tried in an Inferior Court, given them before the Lords, so as they cannot refuse to hear or judge it, or they do nothing.  
That there is a great Parity betwixt an Appeal and an Impeachment no Man can rationally doubt, in that they are both at the Suit of the Party prosecuting, for an Impeachment is in the Name of the House of Commons, and all the Commoners of England; The Prosecution is by themselves for themselves, and in their own Names do they demand Judgement, which would be very unmannerly if the Suit was not their own; Now I cannot Conceive how it it should consist either with Law or Reason, that they should demand Judgement on a Person, if he was not prosecuted at their Suit, so that though it cannot be made appear, that the Commons have such a Suit as an Impeachment of a Commoner for High Treason, which may be Tried in an Inferior Court; yet 'tis clear that there is a great Similitude betwixt an Impeachment and an Appeal, in that they are both at the Suit of the Party, and then this instance of an Appeal will stand the Lords in some stead; for by this it appears, that the Offence for which Fitz-Harris is Accused, may be Prosecuted at two several Suits, One by the King out of Parliament, and another by the Commons in Parliament; so that there being two distinct Prosecutions of the same Offence, it follows also that there are two distinct Judgements, so that the Offence may be prosecuted and punished at one Suit, yet this is no satisfaction to the other; And then Fitz-Harris may be Tried, Condemned and Hanged upon an Indictment; And yet this is no satisfaction to the House of Commons, because they had no interest in that Suit; and where they had no Interest, they cannot be said to receive satisfaction.  
So then, to what our Author and many more do say, who Plead up for the Lawfulness of Rejecting the Impeachment, that it is no denial of Justice to the House of Commons to hinder their Prosecution, because that very Offence which they would punish may be punished elsewhere, is highly false, for the Punishment of it there doth nothing respect the Suit of the Commons, and then certainly there can be no satisfaction; And seeing the Law hath made two distinct Prosecutions of the same Offence, so that the prosecution at one Suit, is not the prosecution at the other; It doth also necessarily suppose, that there are two distinct Parties that may prosecute at their two distinct Suits, so that one prosecuting and receiving satisfaction, is no satisfaction to the other; for if it was, the Law would Frustra agere, in permitting two Suits when one would satisfy all, Nam frustra fit per Plura, quod possit fieri per pauciora.  
Well, but it was no denial of Justice to deliver up Drake to the Common Law, and therefore can be none to deliver up Fitz-Harris.  
Indeed I concur with our Author, that the Lords delivering up Drake to be prosecuted at the Common Law was no denial of Justice; yet that it was a denial of Justice to Reject this Impeachment, is clear for this Reason, for here the Commons required Justice, and in the first they did not, but let their Suit fall; And where the Commons do not require Justice, there the Lords cannot be said to deny it; But on the contrary, when the Commons require the Prosecution of a Delinquent, then for the Lords to deny it, is without doubt a denial of Justice; So that the Denial of Justice doth not purely consist in the Lords delivering over the Suit of the Commons, but their doing it when the Commons require Prosecution of it in Parliament; Then seeing in Drake's Case, the Commons required not any prosecution, and in the Case of Fitz-Harris they did require it; it follows, that in the first Case it was not, and in the latter it was a denial of Justice for the Lords to throw out the Impeachment; Besides, there is a great difference betwixt the not receiving an Impeachment, and the removing it when it was for some time Lodged; for in the latter Case the Suit is Revived, and if the Commons do not prosecute 'tis their fault, but in the first Case the Suit is absolutely Rejected, which is the Act of the Lords; Then seeing there is so great a disparity betwixt the Cases of Drake and Fitz-Harris, this instance will stand our Author in stead, for as I have already said, He that quotes a Precedent for a Proof, must always prove the Precedent to be the same with the thing that's to be proved, for A dispari non valet Argumentum.  
I have now done with our Author, I shall only add a word more, If the Commons have a right to Impeach, it follows, they have a right to prosecute; and this must be before the Lords, then sure the Lords Rejecting their Suit was the denying them what was their right, and this certainly is a denial of Justice: But some say, They have a Kite if the Lords please, so that this Right depends on the Will of the Lords; but this is false, for their Rights, of which Impeaching is one, are Founded on the Ancient Practice of Parliament, and not on the Will of the Lords; And seeing the Lords cannot alter the Practice of Parliament, where the Commons are concerned, without a breach of the Law of Parliaments, it more strongly follows that this was Injustice. But 'tis Objected, That if the Commons should have this, they might Impeach the whole Nation, and so hinder the King of all Prosecution; That the House may Impeach all is possible, but that they will is highly improbable; But this cannot hinder the King's Suit, for if the Commons do not prosecute in any reasonable time, the Lords may upon Proclamation quit the Prisoner, who is still liable to an Indictment.  
SIR, I am Your Humble Servant. W. I.   

LONDON, Printed for T. D. 1681.   
FINIS.