Sir Wm. Jones. In a matter so very plain and conspicuous, as the refusal of this Impeachment by the lords, I am unwilling to make unnecessary doubts. If indeed an inferior court had proceeded to Judgment in this matter of Fitzharris, then it might have been pleaded in bar against the Impeachment of the commons. There was an indictment against the lords in the Tower, in the King's-bench, found upon record, and yet that was no impediment to their trial by the impeachment of the commons; but in this case of Fitzharris, here is no indictment or prosecution begun in any inferior court of law. We have a precedent fresh in memory of the Impeachment of a commoner at the lords bar, if the lords doubt that, which was of my lord chief justice Scroggs; so that we need not spend our time to search for precedents to maintain our right at a conference with the lords. Perhaps the Lords Journals are not yet made up into form; but some members have taken notes out of their minutes, and find that the lords have dismissed the Impeachment against Fitzharris, and left him to trial at common law, and have ordered it so by the lords spiritual as well as temporal; and in this case they have determined a great point, That the lords spiritual have power to judge in an Impeachment of capital matters,' which we never own, nor ever shall, and here we are denied justice by those who have no right to vote it. In this the lords have done a double act of injustice. Seeing then that the lords have taken upon them to throw out this Impeachment, let us assert and declare our right of impeaching in capital causes, and that the lords have denied us justice in refusing the Impeachment against Fitzharris; and then, after having asserted our privilege, let us draw up our Reasons to maintain it, and make it part of our conference to show the lords, how unreasonable the lords actions have been in their Proceedings.

the courts below, only the attorney-general told the lords, that the king gave him directions to prosecute Fitzharris, and there is no Record against him. If the lords vote, 'That the commons shall not impeach this man,' they may as well vote, That we shall not be Protestants. But yet we will be Protestants. I take this to be a new Plot against the Protestant Religion, and we impeach this man, and the lords fairly say, We will not hear it." If this be the case, I desire you will come to some vote. You are willing to discover this Plot if you could. If the attorney-general had prepared the prosecution of Fitzharris, and, as Jones said, if the inferior courts had proceeded to judgment against him, then that judgment is pleaded in bar against an Impeachment. But if our time be short to be here (as I believe it is) pray do not delay discharging your part in this matter. If the house be satisfied in it, pray make a vote, to assert your own right. A little while ago, we knew, that the Judges of the King's-bench discharged the Grand Jury, whilst the indictment against the duke of York, for a Popish Recusant, was depending this proceeding of the lords, in rejecting the Impeachment of Fitzharris, seems as if the house of lords intended to justify that proceeding of the Judges by their own. It is a just reflection of weakness to doubt in a plain matter. If no gentleman doubts of our right of impeaching, pray vote it so.

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Sir Rob. Howard. I am glad we are off from one great thing, viz. the Exclusion of the duke. I cannot believe but that, in this matter of rejecting the Impeachment of Fitzharris, the lords have cause for what they do. In this matter, precedents you need not search; you have instances of very late date: but this of Fitzharris seems to me to be a more dangerous breath than usual, a breath fit to be stifled. There is something in this more than ordinary. If this be a sacred respect in the lords to the Sir Fr. Winnington. If this refusal of the common trials of England by juries in the lords was an ordinary Impeachment of Mono- inferior courts, it is strange that, in the case of polies, or the like, I should not press you in Skinner, the lords should contend with the the matter; but this is not an ordinary consi- commons about the trial of it, though an orideration, but that which relates to our Religion ginal cause. This refusal of the lords seems to and Property; and how the bishops come in me to be no great value of the law of England, to stifle this Impeachment, let God and the but a value of Fitzharris to keep him from us. world judge! I would know if there be an im- When I have seen, in all the speeches to-day peachment against a man from the commons,telating to the Duke's Exclusion, that the duke and no indictment upon record against him in

That no such thing should be done for the future. Now, that related only to proceedings at the king's suit; but it could not be meant, that an Impeachment from the commons did not lie against a commoner. Judges, secretaries of state, and the lord keeper, were often commoners. So if this was good law, here was a certain method offered to the court, to be troubled no more with Impeachments, by employing only commoners. In short, the peers saw the design of this Impeachment, and were resolved not to receive it, and so made use of this colour to reject it." Burnet.

goes not single, but all along associated with Popery-I have heard such excellent discourses to-day of that matter, that I am loth to mingle my weakness with them; but these are such counsels from the lords, that I believe hereafter 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 will 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

Sir Tho. 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 Godfrey was murdered by the Papists, and that the army mustered on Black-heath was raised with intentions to destroy the protestants in Holland, and to awe the city of London. When Fitzharris gave intimation, that he would discover what he knew of this Plot, and that two or three hon. members of this house had examined him, this man was fetched the next day to Whitehall, and from thence burried away to the Tower, and so we were deprived of 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: be must be tryed 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."

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, I have enlarged my suspicion, and I must always expect unusual ways. We see that the worst of mankind has been pardoned, with all his villainies 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 disposition continue upon him? But I ain 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 (p. 1314) (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 sub-ment upon such Impeachment is a denial of verting 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.

Resolutions in the Case of Fitzharris.] The house then resolved, 1. "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 or misdemeanor; and that the refusal of the lords to proceed in parlia

justice, and a violation of the constitution of parliaments. 2. That, in the case of Edw. Fitzharris, who, by the commons, has been impeached for High-Treason, before the lords, Serj. Maynard. This damnable Popish with a declaration, That in convenient time Plot is still on foot in England, and I am sure they would bring up the Articles against him;' in Ireland too; and what arts and crafts have for the lords to resolve, That the said Edw. been used to hide this Plot! It began with Fitzharris should be proceeded with according the murder of a magistrate (Godfrey,) then with to the course of common-law,' and not by way perjury and false Subornation, and this of of Impeachment in parliament, at this time, is Fitzharris is a second part of that. We sent a denial of justice, and a violation of the conup an Impeachment to the lords against Fitz- stitution of parliaments, and an obstruction to harris, and told the lords, That, in due time, the farther discovery of the Popish Plot, and we would bring up Articles against him,' and of great danger to his majesty's Person, and the lords refuse to try him. In effect, they the Protestant Religion. 3. That for any inmake us no parliament. If we are the prose- ferior court to proceed against Edw. Fitzharris, cutors, and they will not hear our accusation, or any other person lying under an Impeachtheir own lives, as well as ours, are concerned.ment in parliament for the same crimes for This is a strange way of proceeding; the same day we impeach Fitzharris, they vote we shall 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.

which he or they stand impeached, is an high breach of the privilege of parliament."

Protest relative to Fitzharris's Impeachment.] On the question being put in the house of lords, Whether Edw. Fitzharris shall be proceeded with according to the course of the Common Law, and not by way of Impeachment in parliament at this time? It was resolved in the affirmative. Before the putting of the above

said question, leave was asked for entering Protestations; which was granted.

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"Dissentient; Because that in all ages it hath been an 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 government, are most effectually determined in parliament. We 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 for one and the same offence may entitle several persons to several suits; as, if a murder be committed, the king 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 suit can be tried no where else: the house of peers, as to Impeachments, proceed by virtue of the judicial power, and not by their legislative; and as to that act, as a court of record, and can deny suitors (especially the commons of England) that bring legal complaints before them, no more than the justices of Westminster-Hall, or other courts, can deny any suit or criminal cause that is regularly commenced before them. Our law saith, in the person of the king, Nulli negabimus justitiam,' We will deny justice to no single person; yet here, as we apprehend, justice is denied to the whole body of the people. And this may be interpreted an exercising of an arbitrary power, and will, we fear, have influence upon the constitution of the English government, and be an encouragement to all inferior courts to exercise the same arbitrary power, by denying the presentments of grand juries, &c. for which at this time the chief justice stands impeached in the house of peers. This proceeding may misrepresent the house of peers to the king and people, especially at this time, and the more in the particular case of Edw. Fitzharris, who is publickly known to be concerned in vile and horrid treasons against his majesty, and a great conspirator in the Popish Plot to murder the king, and destroy and subvert the Protestant Religion. (Signed,) Kent, Shaftsbury, Macclesfield, Herbert, Sunderland, Essex, Crewe, Bedford, Stamford, Westmorland, Salisbury, P. Wharton, Mordaunt, Grey, Paget, Cornwallis, Huntingdon, Clare, Monmouth, J. Lovelace."

Debate on the first Reading of the Bill of Exclusion.] March 28. The Bill for excluding the duke of York, &c. was read the first

time.

Sir Leoline Jenkins. This Bill before you is

| very extraordinary. There was never the like before in parliament. No bill was ever offered in parliament so much against the justice of the nation. Here is a great prince condemned before he is heard. Next, it is ex post facto very extraordinary, and against the justice of the nation; and not only so, but against the wisdom of the nation too; for it will introduce a change in the government. If the duke should try to cut this law with his sword, and he should overcome, the same power that can set aside this law will set aside all laws both of our Religion and Property; the power will be in the hands of a conqueror, and he will certainly change the government. This is against the religion of the nation. We ought to pay obedience to our governors, whether good or bad, be they ever so faulty or criminal. Heathen princes were obeyed by Christians in licitis et honestis. And we are not to do evil that good may come of it,' or for any prospect of good. One word more: this Bill is against the oaths of the nation, the oaths of Allegiance and Supremacy. We are bound by those oaths, in the eye of the law, to the duke, and I am consequentially sworn to him. Every oath is to be taken in the sense of the lawgiver; and if this bill pass into a law, who can dispense with me from that oath to the king? Possibly I am too tedious, and not willingly heard. This Bill is against our Religion, against the government and wis dom of the nation; and I hope you will throw it out. [Jenkins's argument being the same with that of the last parliament, which was then fully answered, passed off without notice.]

Mr. Bennet. Jenkins bas moved to throw out this bill, and that he might be heard patiently. Nobody, it seems, seconds him; there fore pray let him go on, and second himself.

The Bill was ordered to be read a second time next day, in a full house.

Sir Won. Jones. As to the Votes you passed on Saturday, upon occasion of the lords rejecting your Impeachment against Fitzharris, because there has been discourse of them in the town, and I believe will be, in time, in the nation, though what has been done will be made good, let us give all men satisfaction that we are in the right. Amongst our other misfortunes, in this place we are far from Records and Books, and so it will not be easy to prepare ourselves to argue this. But according to the little I have looked into this matter, I find that it is the undeniable right of the commons to bring Impeachments in parliament not only against lords but commoners; and Magna Charta says not only that Subjects shall be tried ' per judicium parium suorum,' but 'per legem terræ.' And Trial in Parliament is lex terræ. I have heard of a Record of 4. Ed. iii. where when a lord, the earl of March

The Black-Rod knocked at the door, and gave notice that the king commanded the attendance of the house immediately in the house of lords.

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