r its being
committed? the house was immediately kindled into a new flame of
contention. Hawles, the solicitor-general, affirmed that the house in
the present case should act both as judge and jury. Mr. Harcourt said he
knew of no trial for treason but what was confirmed by _Magna Charta_,
by a jury, the birthright and darling privilege of an Englishman, or
_per legem terrae_, which includes impeachments in parliament; that it
was a strange trial where the person accused had a chance to be hanged,
but none to be saved; that he never heard of a juryman who was not on
his oath, nor of a judge who had not power to examine witnesses upon
oath, and who was not empowered to save the innocent as well as to
condemn the guilty. Sir Thomas Lyttleton was of opinion that the
parliament ought not to stand upon little niceties and forms of other
courts when the government was at stake. Mr. Howe asserted that to do a
thing of this nature, because the parliament had power to do it, was
a strange way of reasoning; that what was justice and equity at
Westminster-hall, was justice and equity every where; that one bad
precedent in parliament was of worse consequence than an hundred in
Westminster-hall, because personal or private injuries did not foreclose
the claims of original right; whereas the parliament could ruin the
nation beyond redemption, because it could establish tyranny by law. Sir
Richard Temple, in arguing against the bill, observed that the power of
parliament is to make any law, but the jurisdiction of parliament is to
govern itself by the law; to make a law, therefore, against all the laws
in England was the _ultimum remedium et pessimum_, never to be used but
in case of absolute necessity. He affirmed that by this precedent the
house overthrew all the laws of England; first, in condemning a man upon
one witness; secondly, in passing an act without any trial. The commons
never did nor can assume a jurisdiction of trying any person: they may
for their own information hear what can be offered; but it is not a
trial where witnesses are not upon oath. All bills of attainder have
passed against persons that were dead or fled, or without the compass of
the law: some have been brought in after trials in Westminster-hall; but
none of those have been called trials, and they were generally reversed.
He denied that the parliament had power to declare anything treason
which was not treason before. When inferior courts were dubious, the