"That the whole House should reflect upon the king," and for him to say, "Do what you will with me, I will not go."

Secretary Jenkins. I said no such thing, "That the House reflected on the king," but "That I take it as a reflection upon the king, my master."

His words were thus stated, "This message had not been put upon me but for the character I bear-I value not my life or liberty; do what you will with me, I will not go."

Secretary Jenkins. I said "That this is put upon me, to my apprehension, for the character I bear; and do what you will with me, I will not go."

king, and he will not go." All the Commons do will be reversed, if this must pass for doctrine, "That what we do reflects upon the king." But, Sir, we are in a ship, and we have to do with the master, and he with us. If this gentleman would make any sort of excuse for himself, I would, for my share, pass it by; but he has not taken it off, but rather aggravated it. If he has nothing farther to say for himself, he must withdraw, and then I shall make a motion, for the honour of the House..

Sir Thomas Meres. I know no difference of any persons here; if Jenkins said "I thought sending me with the impeachment reflected on the king; and in case it be so, I will suffer any thing under that reflection," a man may be mistaken in his thoughts: but, as I take it, he said "It was his thoughts that the message was a reflection upon the king, and in that case he would suffer any thing rather than a reflection upon the king in the character he bears."

Sir W. Jones. I am sorry to see any member behave himself at this rate. This confirms me in the opinion of the design some men have to depress the honour of this House. A book has been written by a member of this House (which, in time, I hope you will consider of) "That the House of Commons, in Hen. 3.'s time, sprung out of rebellion." This goes on Sir John Ernly, after he had inspired Jenthis day in the same method. Let a man be of kins with a whisper, said, It is an ill thing to what quality he will, if he be too big to carry stumble at the entrance. I do hope that Jenyour message, he is too big to be your mem-kins intended no disservice to the House, in ber, and not fit to be chosen for one. Thus to scorn the commands of the House, and to be too big for a messenger of the House of Commons! Secretaries are sent on messages every day, and is he too big for this, to accuse a person of the Popish Plot? If this be so, sit no longer here but go home. His character is great, but he may be privy to things hid from us, possibly, by this extraordinary carriage. Is it come to that pass, for us to be dealt withall as none of our predecessors ever were before? If my brother, or son, dealt with the House thus, I would have him made an example; and, for aught I see, he provokes you more by his explanation; therefore pray

go on.

Secretary Jenkins. I am ready, and I think myself as much obliged as any man, to obey the commands of the House. The office I have under his majesty excludes me not; but the thing I stand upon is, That the motion was carried on in ridicule. I have an honour for this, and ever have had for all Houses of Commons, but in this message I must and will be excused.

Sir Henry Capel. "Ridicule" is not a word proper for a House of Commons: what is appointed by them is with all gravity, especially where the life of a man is concerned, as it is in an impeachment. We are in an unfortunate age; now things come to light, more than we were before; that now it must be said, "Impeachments of treason strike at the king," and "the bill of excluding the duke, &c. is levelled at the king," I am sorry it is said here, as well as in other places. This that we put upon Jenkins is an employment for the king's service, and he tells us, "It reflects upon the

* Dr. Brady, who served for the University of Cambridge.

what he said, but on a perfect mistake. I did apprehend, and so did some others, that he was put upon it, by the gentleman that moved it, in jest (Mr. Coningsby.) But be it in jest, or in earnest, he ought to obey your order; but every man cannot subdue his own heart. But I would know of Jenkins, whether, upon far-, ther consideration, he will undertake this service, or no? I am the worst advocate in the world for an obstinate person; but I humbly offer it to your consideration to put the gentleman upon it, whether he will go, or no, before he withdraw.

Secretary Jenkins. Since the House is so favourable as to hear me, I must say I did apprehend it a reflection upon the king, which was the reason why I refused the message: but if I apprehended it a reflection upon the I should king my master, I am heartily sorry incur the displeasure of the House, and I hope you will pardon the freedom of the expression, of reflection upon the king. I had no other consideration whatsoever that induced me to say the words.

Mr. Fleetwood. I look upon this as so great a reflection upon the House, from this gentleman, that he ought to come upon his knees, at the bar, to ask pardon.

Mr. Boscawen. We are all subject to infirmi ties. Seeing the thing is so, Jenkins could not apprehend any reflection upon the king in the message, but he might upon himself. The thing was a little smilingly moved; but since he has explained himself, I would have this passed by, as I should desire for myself, upon the like occasion.

Lord Cavendish. The gentleman's fault is a great one; but after he has now begged the pardon of the House, and that he is ready to obey the Order of the House, I am willing to pass sit over. Though it be a great fault, yet

may indict at his suit, or the heir or the wife of the party murdered 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 an interest in it.

"It is, as we conceive, an absolute denial of justice, in regard (as it is said before) the same Colonel Birch. For the discovery of this suit can be tried no where else. The House Plot of Fitzharris we ought all to give God of Peers, as to impeachments, proceed by thanks, next to the discovery of the Popish virtue of their judicial power, and not by their Plot. This is a great service to the nation, | legislative; and as to that, act as a Court of and it is not the first service that sir William Record, and can deny suitors (especially the Waller has done the nation. If ever the thanks Commons of England) that bring legal comof the House were deserved, it is for this dis- plaints before them, no more than the justices covery; therefore I move, ،، That he may of Westminster Hall, or other courts can deny have the thanks of the House." any suit, or criminal cause, that is regularly commenced before them.

"Our law saith, in the person of the king, A Message was brought from the House of "Nulli negabimus justitiam,' We will deny Commons, by sir Leolin Jenkins and others, in justice to no single person : yet here, as we apthese words: "The Commons of England, as-prehend, justice is denied to the whole body of serabled in parliament, having received information of divers traiterous practices and designs "And this may be interpreted an exercising of Edward Fitzharris, have commanded me to of an arbitrary power, and will, as we fear, impeach the said Edward Fitzharris of high have influence upon the constitution of the treason: and I do here, in their names, and in English government, and be an encouragement the names of all the Commons of England, to all inferior courts to exercise the same arbiimpeach Edward Fitzharris of high treason.trary power, by denying the presentments of They have further commanded me to acquaint grand juries, &c.; for which, at this time, the your lordships, that they will, within conve- chief justice stands impeached in the House of nient time, exhibit to your lordships the Articles Peers. of charge against him."

Sir Thomas Lee. I see not what farther use there is of a parliament, if the House of Peers will be a Court, and not a Court, to serve a pre-polies, or the like, I should not press you in the sent purpose.

:

will not hear our accusation, their own lives, as well as ours, are concerned. This is a strange way of proceeding; the same day we impeach Fitzharris, they vote we must not prosecute him: now, when all is at stake, we must not prosecute. If this be so, Holland must submit and let the French run over all. This is a strange breach of privilege of parliament, and tends to the danger of the king's person, and the destruction of the Protestant Religion, and I hope you will vote it so.

Sir Thomas Player. I shall make you a motion, but first I shall say we have had a considerable discovery of the former plot. I call it the old plot, but this of Fitzharris has been new upon us. This is still a confirmation of the intention of murdering the king, the duke consenting to destroy his own brother and our king-I have often heard it whispered, that the design of Madame's voyage to Dover was to promote the popish religion, but it is plain that Justice Godfrey was murdered by the papists, and that the army mustered on Blackheath was raised with intentions to destroy the Protestants in Holland, and to awe the City of London-When

such counsels from the Lords, that I believe hercafter the king will have no cause to thank the Lords, or those that were the originals, for involving him in the fatality of them. They wil make the traiterous libel of Fitzharris the copy of their counsels. Dangerfield was a man reputed most infamous, yet if he would discover what he knew of that sham Presbyterian Plot, nothing of mercy was too big for him but Fitzharris, a man of no infamy, must be hurried away from Newgate to the Tower, when he was disposed to confess the whole Plot to those gentlemen who examined him. Are you so lost, that there is no mercy left for the Protestant religion? If the terror of his condition incline him to discover all, must he now be taken out of our hands? We hear of other things too; that the French ambassador had a hand in the contrivance of this Plot with him, and can that be enquired into by a common jury, who are to concern themselves in no more, than whether Fitzharris be guilty, or not guilty? I must confess, that with the carriage of this, 1 have enlarged my suspicion, and I must always suspect unusual ways. We see that the worst of mankind has been pardoned, with all his vil-Fitzharris gave intimation, that he would dislainies about him, upon an ingenuous confession; 'but what provocation has there been from Fitzharris, to be thus hurried away to trial at common-law in a disposition to confess all, and so be out of the reach of pardon, should that dis-away to the Tower, and so we were deprived of, position continue upon him? But I am persuaded something depends upon this man, as well as upon the bill we ordered to day. When I saw the temper of the House, when Jenkins refused your Message [See p. 228.] (and there was something in that too) that the House would make no breach upon it and passed it over with great temper, that now we must lay down all prosecution of the Plot, and that the Protestant religion shall have no mercy! Fitzharris may merit by his confession where he may reasonably hope for the same intercession for his pardon, that much blacker offenders have obtained; but if his breath be stopped, I am sorry the people should have occasion to say, "If it were not for the Lords, the Protestant religion might have been saved." Therefore I move, that, in the wording of your vote, you will not only say, "That the Lords rejection of this impeachment is not only a subverting the constitution of parliament," but "of the Protestant religion" also; and I hope you will do this with the same calmness of mind that every man does wish that loves his religion.

Serjeant Maynard. This damnable popish plot is still on foot in England, and I am sure in Ireland too; and what arts and crafts have been used to hide this plot! It began with the murder of a magistrate [Godfrey,] then with perjury and false subornation, and this of Fitzharris is a second part of that. We sent up an Impeachment to the Lords against Fitzharris, and told the Lords, "That, in due time, we would bring up articles against him," and the Lords refuse to try him. In effect, they make us no parliament-If we are the prosecutors, and they

cover what he knew of this plot, and that two or three honourable members of this House had examined him, this man was fetched the next. day to Whitehall, and from thence hurried

all farther hopes of discovery from him. We now revive the information from an Impeachment, and now this man must not be brought hither to be tried: He must be tried in an inferior court, that his mouth may be stopped, and put out of capacity to discover. This being the case, I move," That if any judges, justices of the peace, juries, &c. shall proceed upon the trial of this man, that you will vote them guilty. of his murder, and betrayers of the rights of the Commons of England."

Hereupon the House came to the following Resolutions:

Resolved, "That it is the undoubted right of the Commons, in parliament assembled, to impeach before the Lords in Parliament, any peer or Commoner for treason or any other crime

"Mr. Justice Blackstone, 4 Commentaries c. 19, lays it down, "That a commoner cannot he impeached before the Lords for any capital offence but only for High Misdemeanors:" And to prove this position he cites the case of Simon de Beresford, from Rot. Parl 4 Ed. 3. No. 2, and 6.-This case is as follows: "When in 4th Ed. 3, the king demanded the earls, barons and peers, to give judgment against Simon de Beresford, who had been a notorious accomplice in the treasons of Roger earl of Mortimer, they came before the king in parlia ment, and said all with one voice, that the said Simon was not their peer; and therefore they were not bound to judge him as a peer of the land. And when afterwards, in the same parliament, they were prevailed upon, in respect

or misdemeanor; and that the refusal of the Lords to proceed in parliament upon such Impeachment is a denial of justice, and a violation of the constitution of parliaments.

Resolved, "That, in the case of Edward Fitzharris, who, by the Commons, has been impeached for High-Treason, before the Lords, with a declaration, "That in convenient time

moners impeached by the Commons in parliament ?"

to the notoriety and heinousness of his crimes, to receive the charge and to give judgment against him, the following protest and proviso "When Simon de Beresford is charged by the was entered on the parliament roll. And king in aiding and advising with the said earl it is assented and accorded by our lord the Mortimer in the said treasons and felonies, the king, and all the great men, in full parliament, said earls, barons, and peers, came before the that albeit the peers, as judges of the parlia- king in parliament, and said, That the said Si'ment, have taken upon them, in the presence mon was not their peer, and therefore they were of our lord the king, to make and render the not bound to judge him, as a peer of the land.' said judgment; yet the peers, who now are -This accusation against Simon de Beresford 'or shall be in time to come, be not bound or was at the king's suit. Rot. Parl. vol. 3, p. 53, ⚫ charged to render judgment upon others than No. 4.-Notwithstanding the declaration of the peers; nor that the peers of the land have Lords, they afterwards condemn the said power to do this, but thereof ought ever to be Simon de Beresford and others, not peers, to be discharged and acquitted: and that the afore-executed for the said treasons and felonies--'said judgment now rendered be not drawn to But immediately declare, That though they example or consequence in time to come, had from this time proceeded to give judgment whereby the said peers may be charged here- upon those that were no peers, hereafter these after to judge others than their peers, contrary judgments should not be drawn into example to the laws of the land, if the like case happen, or consequence, so that they should be called which God forbid.'-Rot. Parl. vol. 2, p. 53, upon to judge others than their peers, contrary 54. See this case, in the original language, to the law of the land.' Rot. Parl. vol. 2, p. with the opinion of the judges thereupon, in 54, No. 6-In the 29th ch. of Magna Charta, the Appendix to this vol. No. 10.-How far the 9th Hen. 3, it is said, 'Nec super eum ibimus, conclusion drawn by sir W. Blackstone from nec mittemus, nisi per legale judicium parium this case, which was a prosecution at the suitsuorum, vel per legem terræ.' That is, says of the king, has been admitted to be law, with sir Edward Coke, 2nd Inst. p. 46. No man regard to prosecutions, brought before the shall be condemned at the king's suit, either be Lords by impeachment at the suit of the Com-fore the king in his bench, where the pleas are, mons, will appear from the great number of Coram Rege, (and so are the words, nec super instances, which occur in the following part of eum ibimus,' to be understood) nor before any this volume, (subsequent in point of time to other commissioner or judge whatever, (and so this of Simon de Beresford in the year 1330) are the words nec super eum mittemus,' to be where commoners have been impeached be- understood).' And again, 2 Inst. p. 48, in fore the Lords for capital offences, and in which commenting upon the words, Per judicium the Lords have not made this objection. Lord parium suorum,' sir Edward Coke says, Hollis in his work, concerning the judicature of Note, as is before said, That this is to be unthe House of Peers, published in 1669, speak-derstood of the king's suit; for if an aping of the case of Simon de Beresford, gives it as his opinion, That the protestation of the Lords, not to sit in judgment upon any but peers, was a mere order of the House of Lords, alterable at pleasure.'-On the 2nd of July, 1689, (See the Case of sir Adam Blair and others in this Collection) a doubt arose in the House of Lords, Whether this record of the 4th of Ed. 3, was a statute? And the question being put to the judges, they answer As it appears to them by the aforesaid copy, they believe it is a statute; but, if they saw the roll itself, they could be more positive therein.' It was then proposed to ask the judges, Whether the Lords, by this statute, be barred from trying a commoner upon an impeachment of the House of Commons? But the previous question being put, it passed in the negative. "In the 1st vol. of the Lords Debates (See Appendix to 4 Cobb. Parl. Hist. No. xv. p. clxiii.) is a pamphlet written by sir William Jones, and published in 1681, in which this question is discussed, Whether, by the law and custom of parliament, the Lords ought to try com

peal be brought against a Lord of parliament, which is the suit of the party, there he shall be tried, not by his peers, but by an ordinary jury:* For that this statute extendeth only to the king's suit.' So in the lord Dacre's case, in the 26th of Henry 8th, on a question, Whether he might wave his trial by his peers, and he tried by the country, the judges all agreed, that he could not. For the statute of Magna Charta is in the negative, Nec super eum ibimus, nisi per legale judicium parium suorum,' that is at the king's suit upon an indictment.? Kelyng's Rep. p. 56. And, in the tract cited before in the note, p. 54, sir William Jones says,

It is evident from the roll itself, in the case of Simon de Beresford, and the other records, that the Lords did judge those commoners con. trary to the law of the land, that is, at the instance of the king; so that judgment was given at the king's suit, in a way not warranted by the law and custom of parliament, or any other law of the kingdom: but there is not a word in that record, which imports a restriction of that lawful jurisdiction, which our constitu