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ID Title Author Corrected Date of Publication (TCP Date of Publication) STC Words Pages
A45873 A confutation of a late paper entituled, An answer to the Lords protestation in a letter to a gentleman. W. J.; England and Wales. Court of King's Bench. 1681 (1681) Wing I17; ESTC R7817 7,653 8

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for an Act against Impeachments it being as he saith a Proceeding Attended with a great deal of Injustice and Partiality But if the Commons desire to Impeach a Commoner may they do it Yes if the Lords are willing for they are not Obliged to Pass Judgment on any against their Wills but their Peers as 't is Proved from the Case of Bereford Gournay and Others who in the 4th of Edward the Third had Judgment Pass'd on Them by the Lords And afterwards it was Accorded by the King and all the Grands That albeit the Peers as Judges of Parliament took upon Them to make and render the said Judgment yet that the Peers shall not for the future be bound to Render Judgment on any but their Peers This Proviso was made in full Parliament with these two Respects 1. To satisfie the Commons that they intended not by their Judgment to Alter the Course of the Common Law and therefore they declar'd against Power to do this and Confess'd it was contrary to the Law of the Land 2. To Preserve their own Rights to Judge none but their Peers in Case of Life and Death So then this President is urged as an Argument to prove That the Rejecting of the Impeachment was lawful But let us consider whether the Case of Bereford and the rest be the same with the Case of Fitz-Harris If it be the Author hath surely overturn'd the Protestation If it be not it will no ways serve his turn Bereford by the Command of the King was brought into Parliament and there had Judgment at the Kings Suit which by the Way was very Illegal for all Indicted ought to be Tried by their Peers Fitz-Harris was Impeached by the Commons and at their Suit could be Tried no where but in Parliaments And now that these two Cases are not the same is very clear And if not the same then our Author cannot from hence infer That the Rejectment was lawful for when a President is brought for a Proof the President must always be the same with the thing that 's to be proved Now seeing the Case of Bereford and Fitz-Harris is not the same it necessarily follows that nothing can be inferr'd from the Case of Bereford to the Case of Fitz-Harris And indeed 't is to me very strange That because the Lords Accorded that they would not be Obliged to try a Commoner which ought to be Tried at the Common Law our Author should infer That they are not likewise obliged to Try a Commoner when he is prosecuted at that Suit that can be Tried no where but before the Lords in Parliament This is to make an Indictment and Impeachment the same And if so then an Indictment may be found by the Commons in Parliament and an Impeachment may be brought out of Parliament To Assert which would be the highest of Non-sense And indeed I should suspect that Man to be of a distempered Understanding that should affirm it 'T is yet more apparent this can no ways prejudice an Impeachment for that was done to assure the Commons the Lords intended not to alter the Course of the Common Law Thence it follows That the Subject-matter of that Act was such as ought to have been Tried at the Common Law of which an Impeachment is no part And consequently could not be concern'd in this Act of the Lords But it may be Presumed that if the Commons should force an Impeachment on the Lords against a Commoner that may be Tried at the Common Law and Vote that it ought not to be Tried in an Inferiour Court Men may be apt to think it is a design to delay Justice or to get a Pardon Indeed I really think that what induced the House of Commons to this Impeachment was not a pure design of Prosecution but because they would create an Opportunity of making a farther Discovery of the Design Fitz-Harris was engag'd in But let the Motive be what it will the Prosecution is still the same the Impeachment alters not whether the Commons did it with a design of Prosecuting or Discovering I shall pass by the Statute he quotes for it can no ways be applicable to our Business because it only lays down the manner of Proceeding on Trials out of Parliament But for the Lords to say That an Impeachment and an Indictment are two different Suits is a meer Quibble for whether this Criminals Trial be by Indictment or Impeachment 't is the same Accusation namely for Treason And the Prosecution in both Courts which is really and truly the Suit is for the same End and Purpose that is the Punishment of the Delinquent I am highly sorry to see a Man of great Knowledge and Understanding as the Reputed Author of this paper is said to be so strangely Halt in his Intellectuals as to Assert that there is no difference betwixt an Indictment and an Impeachment because they are both Accusations and both tend to the same End namely the Punishment of the Delinquent So then according to our Author two Ways that lead to London one of which comes from the North and the other from the South are not really two different Ways because they are both Ways and both tend to the same End Yet I believe there is no Traveller but would really think these Ways do plainly differ notwithstanding they are both Ways and both lead to the same place And I believe there is no Lawyer but our Author but thinks an Impeachment and an Indictment two different Suits notwithstanding they are both Accusations and both tend to the same thing namely the punishment of the Delinquent for that that makes them differ is not because they are both Accusations and aim both at the same End but because the Parties prosecuting do it for different Reasons one for Himself the other for the King And seeing to prosecute for the King and for ones self is not the same thing it clearly follows that an Indictment and an Impeachment do really differ And if so then what the Lords Asserted in their Protestation is not a meer Quibble But the Ground of the wonderful Reason is the different use of the two Words Impeachment and Indictment both which signifie an Accusation and the design of both is the same and it matters not whether Punishment be by the Lords or by the Judges at Common Law but the most equal Way will be by his Peer●●● by whom he may have the most equal Condemnation or Acquittal there being not the President that comes up to or is parallel with this Case That an Indictment and an Impeachment do both signifie an Accusation is true And 't is as true that they are different Accusations for one is the Kings and the other the Peoples And seeing an Act of the King do really differ from that of the People it follows that an Indictment and an Impeachment are two different Suits And indeed it had been no great matter whether Fitz-Harris be Condemned in or out of