Mr. FITZ-HARRIS (Now Prisoner in the Tower) His CASE truly stated; Humbly offered to the Freeholders' 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.  
What a noise is this you Politicians make sipping and smoking 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 Cuckoo 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 Vermin 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 Duchess' &c. be always, in Case of life and Member, to be tried 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 privileges in this. A Commoner when he comes to be questioned for his life, is tried by his Neighbours and ' acquaintance; these probaby knowing most of the Fact of the person accused, and of the witnesses etc. those he can speak to etc. those which are not so much above him as to esteem too little of his life etc. 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 showing any the least cause why; and always as many more as he will, if he can show 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, etc. be not Neighhours, etc. but almost all perfect Strangers, etc. 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 grossly, where is the remedy? In short, gentlemans, 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 myself, 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 Precedent 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. Precedents are no little authentic 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, etc. But says Lord Cook, by Colour of this Act shaking the Fundamental Law of Juries, it is incredible what horrid oppressions, exactions, etc. 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? etc. 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, etc. 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, etc. 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, etc. any Commoner, or the Lords to try 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 empower it to do some things, must it therefore all things? I choose Arbitrators, or make a Letter of Attorney to one, he can do no more than what is expressly mentioned for him to do; nor can he do that otherwise than expressed. But this is too large a Subject at this time, only this, I cannot any ways empower 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 only implicit; and therefore to be construed strictly. Thus, How have they power in this case to consent for me? Nay, Do not you say yourselves, 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, etc. Then why the single Account of the House of Commons so potent and strong, etc. The truth plainly is, it is more or less strong, as more or less suits your humour. Oh, but say you, this is the Law in Parliament, the Lex & Consuetudo. You will not grant the King, House of Lords, or any private person can call any Commoners life into question before the Lords, without the consent and approbation of the House of Commons; then how will you reason in Law, that the House of Commons may? Give me one sound honest reason for the difference. But if by seeking to bind the House of Lords to retain and judge a Commoner upon an Impeachment from the House of Commons, you introduce or warrant the King, House of Lords, or any private persons to do it, or the like. Where are you then? The same Reason, the same Law, is a Maxim never fails. But for the People of England, be it said anciently the Lords never gave Judgement of Life or Death upon any but their Peers. This with little Oil and Sand might easily be made out from the Rolls in the Lord's House; a Commoner was in these cases out of the Jurisdiction of their Court. I know of one opinion against this, but no matter, it altars not the Law, About Edw. 2. and Edw. 3. it was somewhat disputed as now; and in Simon de Beryfords' case, the Lords being mightily importuned to give judgement against him, refused a considerable time, alleging he was a Commoner, and they were not bound to give Judgement of Life and Death on him; but at length did, upon an Act of King, Lords, and Commons, passing that this should not be drawn into precedent.  
The Act is Rot. Parl. 4. Edw 3. n. 6. to this effect; It is enacted, That albeit the Lords and Peers of the Realm, as Judges of Parliament, in the King's presence had taken upon them to give judgement in case of Treason or Felony, against such as were not their Peers, That hereafter no Peer shall be driven to give Judgement on any other but their Peers, according to Law.  
Note, the words [according to Law] show the Law was so before, The words the [the Kings presence] are mentioned because the King's assent was anciently as the Commons demand seems yet necessary in the Lords judging any Capital crimes; Besides should the Lords, be bound to judge all men Impeached before them, it might be made ill use of, an Artifice sometimes to divert &c. them; Nor seems it fit and becoming the honour and dignity of that House that it should stoop to trouble themselves with trying every inconsiderable Fellow for every Treason and felony that may happen, though perhaps to a shilling or farthing value which yet they are as well bound to do, as try Fitz-Harris, let his Crimes be what they will, (I shall not judge them before he is heard, and Witnesses at his Trial.) By this means too, the great business of the Nation, that of the Parliament might be fettered, delayed, obstructed, etc. when yet the Trial might be as Well if not better, as aforesaid, by and before others; The Lords, as to the practice also, have accordingly, several times before, done the like as they did now, They referred the Trial of one so impeached to another Court since the King's happy restauration. Oh, but say you, Why should the Lords make use of this Privilege now, when oftentimes they have done otherwise, notwithstanding the said Act, etc. Truly sometimes they must use their Liberty of refusing such Trials else lose it, both to their own and our danger; when better than now? Especially, since you seem so hotly to deny it already; since their was so much, such extraordinary and so far greater and more earnest pressing business before them and for them to do; and since had the Lords, as you say, retained the impeachment, Fitz-Harris could not have been Tried till the leisure and pleasure of the House of Commons were it should be so; If he should have never been tried, he could never be brought to Justice. But no question the House of Commons were zealous for his speedy Trial, and Death if deserved, and would have made a vigorous prosecution; else it were an ingenious way of new found pardoning, There is some small difference sure, between denying Justice to be done at all and between leaving or Commanding it to be done by other Courts, as the House of Lords did in this case; There is some small difference also between Courts that ought to do other, and but for necessity (if ever) such things as these: and other Courts that ought to do such things as these only; and whose only end and business these things and Trials be. Oh, but no other Court can try this now, there is a Vote of the House of Commons against it. It is true, but is their Vote any Law. any Judgement, any Record, any matter or thing in Law, more than the noise of Thunder last Midsummer is to us now? If it would be ever so much as taken notice of, it was only during the same Sessions, and is now become abortive, and so as if never had been. He that holds contrary, endeavours by it, altering, etc. the Government. Whereas nothing in our Government is binding but Common Law, or other, from King, Lords, and Commons, nor aught to have mere influence than what only good manners allows.  
Mr. Smith, You in your Commentaries say, All prosecution at the Suit of the King must stop, till that of a private Person be determined. Good now, Did you ever consider it before? Is it not diametrically otherwise in all Civil Causes undoubtedly? And that it is so altogether, I must tell you there are plenty of Authorities better than yours. As for a taste: Albeit the Judges finding Appeals were usually prosecuted more effectually than Indictments, would therefore endeavour that all Parties might be tried on Appeals, and so would sometimes stop the Indictment (which is the King's Suit) to rather try on the Appeal (which is the Suit of a private person;) yet if they were informed the Evidence were clear, etc. they would always proceed at the King's Suit, and never stay for the Suit of the Patry: 7 H 4. 35. 21 H. 6. 28, 29. 38. Or rather than the King's Suit should be long delayed, as if on Infant brought an Appeal, now, because it could not be tried till he came at Age, they will Indict the Party, etc. and immediately try him again for it, 21 Edw. 3. 23. tit' Age in Fitzh. 57 in tit' Coron. in Fitzh. 278. Anno 13 H. 6. & ibid. pl. 279. Anno 32 H. 6. Let the Appeal of what person soever, and whensoever depend, yet that the Judges might immediately try the Offender at the King's Suit, I would is 16 E. 4. 1 Coron, Fitzh. 469. Anno 8 H. 5. and so were several others tried, tin' conspir. Fitzh. H. 6. & tit' coron' Fitzh. 82. & 7 H. 4. 35. b.  
Thus may we see how justifiable the Lords were in what they did; how generous in preserving our Rights of Trial by our Peers; how much worthy more of our grateful acknowledgements than misunderstandings; how we ought maturely to consider all things before we judge; and how we may unjustly err in our Opinions before we rightly understand all circumstances and reasons of the matter we presume to give our opinion of. Therefore ought we to meddle with nothing but what is within our own Sphere and capacity; and that neither, but when free of Passion and Prejudice.  Cum multis aliis quae nunc perscribere longum est.  

Printed for John Smith in Great Queen-street. 1681.