YOur Lordſhip may pleaſe to remember I was before you at your Barre, upon the 5. Febr. laſt, Where I demeaned my ſelfe with all duty and reſpect to your Honourable houſe, and did zealouſly and Cordially expreſſe my ſelfe for the juſt intereſt of your Houſe, but being perplexed at the illegality of your proceedings with me, I was thereby forced and compelled to Proteſt by word of mouth againſt both the matter and manner of your Procceding, but in regard your Lordſhips were pleaſed to Order me a-new to appeare at Your barre, upon Saturday next being the 19 of Febr. 1647. I am neceſſitated with all humility and reſpect unto the juſt Honour of your Houſe, incloſedly to ſend You my Plea and Proteſt under my Hand and Seale which I humbly intreat your Honour to Communicate unto the Houſe of Peeres, this being my Ʋltimate reſolution, with which I humbly ſubſcribe my ſelfe,
I Am now aſperſed with Treaſon, but I ſhould really contract the guilt of Treaſon againſt my Countries Liberty, and render my Name infamous amongſt the Commons of England to Poſterity, if I ſhould regard your Articles of Impeachment, as an accuſation to which I am bound to anſwer. If I were juſtly to bee ſuſpected for Treaſon, there could be no Legall juſt proceedings to bring me to my anſwer, but by Indictment of good and lawfull men, where ſuch ſuppoſed treaſonable deeds wereaaSee Cookes expoſ. of the 29. cap. of Magna Char. 2. part Inſtit. fol. 45. 46. See the Stat. of 25 Ed. 3 37 Ed. 3. 42 Ed. 3. 3. done; And although I were Legally indicted, the Caſe comes not under your Lordſhips Cognizance; but ſeeing I am a Commoner of England, by the eſtabliſhed Lawes of the Land, my triall ought to bee by a Iudge or Iuſtice, and a Iury of Commoners, and nobbSee Mag Charta. otherwiſe; and as the intent of thoſe Lawes was, that all Trials might be equall and impartiall, ſo they are founded upon theſe impregnable grounds of Reaſon and Equity.
Firſt, the Iury are to be of the Neighbourhood where any crime is committed, and ſome ought to bee of the ſame Hundred; for the Law preſumes, that ſuch may have either ſome cognizance of the fact, or of ſome Circumſtances thereof, or of the Party accuſed whoſe condition and manner of converſation is much to bee regarded, for the diſcovering his intention in any fact ſuppoſed to be Treaſon or Felony, &c. and the Rule of the Law is,ccSee 1. part of Cookes Inſtit. L. 2. ca. 12. Sect. 234. See 3 part Inſtit fol 32, 33. Actus non facit reum niſi mens ſit rea. That a Iury man be according to Magna Char. Liber & Legales homo. a good and lawfull man, he muſt have three propertie. 1. He muſt be dwelling moſt neere to the place where the fact is done. 2. He muſt be ſufficient for underſtanding and competency of eſtate. 3 Hee muſt be indifferent and free from ſuſpition of partiality.
2. The Iury that paſſes upon any Commoner one day, may themſelves bee in a condition to be tried by him another day, as one of their Iury: and hereby they are bound to indifferency and impartiality, confidering it may bee their owne caſe.
3. The Party accuſed may challenge or except againſt the Iurors; either againſt theddSee 1. par. Cookes Iuſt. L. 2. c. 12. ſect. 234 Array, if the Sheriffe or Bayliffe impanelling the Iury, bee not wholly diſingaged and indifferent, as to the Cauſe: and the Party proſecuting, or againſt the Polls; and in caſe of reaſon hee may challenge 35 peremptorily upon his diſlike, without rendring the leaſt cauſe, and as many more as hee can render any reaſon for his juſt challenge, as in caſe hee can challenge any for a Baron or Lord of Parliament, or for defect in eſtate or other abilities, or for diſaffection or partiality, or for any infamous Crime, and hereby the Iudges of the fact for the Party accuſed, may certainly bee indifferent, equall and impartiall.
4 The matter of Fact is onely intruſted to the Iury, and the matter of Law to the Iudge, for the preventing all Errors, confederacies, or impartiality
5. The Iudge is ſworne to doe juſtice to all according to Law, without reſpect of Perſons, and the Iury are ſworne to find according to their Evidence.
Now from every of theſe, the injuſtice and illegality of your Lordſhips claime, to be both Iury and Iudges in the Tryall of mee, or any Commoner, is clearly demonſtrable.
Your Lordſhips cannot be of the Neighbourhood where the Crimes of all Commoners are committed, and cannot bee preſumed to have any cognizance of the Facts, or Parties offending; neither doe you allow your ſelves to bee Tried by Commoners; ſo as to be bound to indifferencie and impartiality, from the Knowledge that the Commoners whom you would Try, might poſſibly be of a Iury for your Trial in a ſhort time; neither can my ſelfe or any other Commoner whom you would try, challenge in the caſe of Treaſon thirty five of your houſe, for your whole houſe amounts very ſeldome to that number, neither will you allow me to challenge any one of your Lord ſhips, though I ſhould alledge diſaffection, partiality, or that he is an ingaged party, or proſecutor, ſecretly or openly; neither at preſent is there any Lord high Steward, or Lord high Conſtable, amongſt your Lordſhips to be Iudge in matter of Law, while others ſhould be Iudges in matter of fact: neither are your Lordſhips ſworne to Iudge according to Law, or in matter of fact according to Evidence.
Having therefore ſuch infallible evidence, both from the Statute, and Common Law, that I ought to be brought to anſwer, to any ſuppoſed crime, only by indictment or preſentment of my equals; good and Lawfull men of the neighbourhood where the fact is done, and that my triall ought to be by my equalls, and a Iudge of the Law in open Court; and that the cogniz•nce of any crime whereof I am ſuſpected pertaines not to your Lordſhips; I am reſolved never to betray my owne, and all the Commoners Liberties, nor to conſent to the ſubverting the Fundamentall Lawes of the Kingdome, by ſubmitting to a triall by your Houſe, or to anſwer to your Articles of Impeachment; but I doe hereby proteſt againſt the forme of your accuſation as illegall, and your Lordſhips Iuriſdiction over my ſelfe, or any Commonner of England, in criminall caſes as being deſtructive to our fundamentall rights and Liberties: and I doe hereby claime the benefit of Magna Charta, the Petition of Right, and all other eſtabliſhed Lawes of the Land, which this Honourable houſe, the houſe of Commons and the Army under his Excellencio Sr. Thomas Fairfaxes command, in all your and their Declarations, remonſtrances, proteſtations, oathes, and Covenants, have promiſed, vowed, and declared, you will maintaine and preſerve,
Publiſhed by a lover of peace, and Iuſtice: and the Liberties of the Commoners of England, which now the Houſe of Lords, doth indeavour to deſtroy, in the caſe of Noble Sr. Iohn Maynard, who without all ſhaddow of Law or juſtice, they intend upon Saterday next, being the 19. Feb. 1647. to try, and condemned, in whom we are all tried, and condemned; and therefore let us as one man goe up with a Petition to the Houſe of Commons, on Friday next, to demand our Liberties in St. Iohn, and to deſire the Houſe, if they ever intend to have us to ſtand by them more, or obey them, that they doe preſerve our loſt Liberties, and not betray them to the Lords.
(EEBO-TCP ; phase 2, no. A88996)
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