Selected quad for the lemma: judgement_n
Text snippets containing the quad
|
ID |
Title |
Author |
Corrected Date of Publication (TCP Date of Publication) |
STC |
Words |
Pages |
|
A53494
|
The second part of the Display of tyranny; or Remarks upon the illegal and arbitrary proceedings in the Courts of Westminster, and Guild-Hall London From the year, 1678. to the abdication of the late King James, in the year 1688. In which time, the rule was, quod principi placuis, lex esto.
|
Oates, Titus, 1649-1705.
|
1690
(1690)
|
Wing O52; ESTC R219347
|
140,173
|
361
|
the Lords in Tryal and Judgment taken away by an Inferiour Court This being said in general I come to the particular Exceptions made by Mr Attorney to the form of the Plea He insists that this Plea doth not set forth any Record of an Impeachment nor the particular matter of it and compares it to the Case of a Plea of Auter foitz acquit If a Man has been Indicted and Acquitted he may plead it in another Court that hath Jurisdiction of the Cause if again Indicted for the same matter I say I take this to be a very good Plea and that according to the pleading of Auter foitz acquit In pleading a General Act of Parliament We need not set forth the whole Act but refer to the Record In the Case of auter foitz acquit there is an Indictment Proceeding of the Cour upon the Plea a Tryal and an Acquittal and a Record of all this matter and if the party be again Indicted he hath a Record to plead which will shew the whole matter and if he does not plead it 't is his own default But in this Case here is no such Record to plead and there is Mr Attorney's mistake you must in this Case be governed by the Rules and Methods of Parliament which is this the Commons Impeach a Man and bring up the Impeachment to the Lords in general and have Liberty to present Articles after due consideration It is said in this Plea that it is secundum legem consuetudinem Parliamenti you are to take notice of the Law of Parliaments and Customs of Parliaments The second Exception is That it is not said in the body of the Plea that Fitz-Harris is Impeached for this Treason but it comes in only in the Averment As to that we must pursue the Impeachment as it is in the Lords Journal 't is for Treason generally there and 't is said to be secundum Legem consuetudinem Parliamenti which goes to all and there is a Record of it among the Records of Parliament and Mr Attorney hath confessed it by the demurrer And this is the same Treason we do aver in fact which also is confessed by the demurrer Mr Attorney hath fancied an exception of Grammar an Adjective for a Substantive but I take it to be as well as any Man can plead in this case The Prisoner says the Commons Impeached him which Impeachment is still in force before the Lords It is as plain as can be if they did Impeach him then there was an Impeachment it can bear no other sence Another Exception and which was strongly urged is That the King may chuse his Court 'T is no doubt the King may chuse his Court for his own Action but the Impeachment is the Suit of the Commons and that is to be tryed in Parliament and no where else I have offered these Reasons as to the form of the Plea to maintain it As to the Precedents There was the Bishop of Winchester's Case 3 Edw. 3. In Coke's 2 Inst fol. 15 the Record is recited de verbo in verbum It was not an Indictment my Lord Coke says it was a Declaration the Record sets forth that the Bishop was attached to answer the King for that whereas it was ordained Per Ipsum Regem Ne Quis ad domum Parliament summonitus ab eodem recederet sine Licentia Regis And that the Bishop in contempt of the King recessit without his leave The Bishop comes and says Si Quis deliquerit ergâ— dominum Regem in Parliamento aliquo ie Parliamento debet corrigi emendari non alibi in minori Curia Quam in Parliamento c. We find no Judgment given upon this Plea nor would they venture to do it My Lord Coke says It looks as if there was a design to weaken the Parliaments by bringing their Proceedings into Westminster-Hall but they would not do it Then there is the Case of Mr Plowden and others 1st and 2d Phi. and Mar. the Information is this That they were summoned to Parliament and departed without leave of the King and Queen the' they had prohibited that any should depart Mr Plowden pleads a Plea a hundred times as faulty as ours if ours be faulty and yet this Case continued all the time of that Queen and it appearing upon the face of the Information that the Case concerned the Commons the Court would not give Judgment for or against the Commons There is also Elliot's Case 5 Car. There was an Information against my Lord Hollis Sr John Elliot and many more They plead to the Jurisdiction of the Court their Pleae is in a manner as faulty as Plowden's but the Court goes not upon the insufficiency of the Plea but gives Judgment generally that this Court had a Jurisdiction The assault happen'd in Parliament the Words were spoken there and upon the demurrer they gave Judgment upon the whose matter This Judgment was reversed 19 Car. 2. The Judgment was given against these Gentlemen of the House of Commons Their Plea was a Plea in Abatement They thought it a very hard Judgment and were obstinate and would not plead over and Judgment was given for want of a Plea they were fined severely and continued in Execution for the Fines were delivered by the Parliament 16 Car. 1. in the second Impression of Croke's Car. it is said That the House of Commons 19 Car. 2. voted That the Judgment was illegal and against the freedom and liberty of Speech and that the Lords concurred in that Vote And upon the Resolution of both Houses the Judgment was reversed by Writ of Error If in our Case you should give Judgment against the Prisoner's Plea and he should prove obstinate and not plead over and you give Judgment of Death upon him It may come to be a very hard Case if your Judgment should be reversed by Writ of Error in Parliament when the party is dead * Sr Francis Winnington in his Argument added to this that it was agreed by the Lords unanimously that the Judgment was erroneous and that the Parties should be restored to all that they had lost but if this Man should lose his Life by your Judgment what help would there be upon a Writ of Error 20 Rich. 2. Ro. Parl. 12. Rushworth 47.48 A Person presented a Petition to the Commons and something suggested therein amounted to Treason He was Indicted out of Parliaement and found guilty But though he was pardoned because the Commons would not lie under that Precedent of an Invasion of their Priviledge tho' he was a Person without Doors and no more hurt done to him but the prosecution the Judgment was voided Mr Williams then concluded his Argument thus My Lord I have done with my Reasons for the matter and for the form Here is the Life of a Man before you here is the right of the Commons to Impeach in Parliament before you Here is the Judicature of the Lords to
in all Writs of Error and matters of Judgment proceed Secundum Legem Terrae and so for Life and Death And there is not one Law in Westminster-Hall as to matters of Judgment and another in the Lords House It is not sufficiently disclosed to you that there is any such thing as an Impeachment depending there 't is only alledged that he was Impeached and so much the New-Books told us but to infer thence that there was an Impeachment carried up and lodged for the same Treason is no consequence And then 't is alledged Quae quidem Impetitio when no Impeachment is before set forth but only that he was Impeached generally When a Record is pleaded in Bar or in Abatement the Crimes ought to be set out to appear the same so are all the Presidents of Cok's Entries 53. Holcroft and Burgh's Case and Watt's and Bray's Case in 41 42 Eliz. Cok's Entries 59. Wrot and Wigg's Case 4 Rep. 45 c. The Record must be set out that the Court may judge upon it and the Record must not be tryed per Pais but by it self Mr Wallop was of opinion that upon this Averment the Jury may try the Fact what a pretty Case would it be that a Jury should judge upon the whole debates of the House of Commons whethere it be the same matter or No I did demur with all the care I could to bring nothing of that in question I take it there is nothing of that matter before you concerning an Impeachment depending before the Parliament but whatsoever was done 't is so imperfectly pleaded that this Court cannot take any notice of it The Soticitor General 's Argument was to this effect The Point in question is whether this Plea be sufficient in point of Law They on the other fide argue the Plea to be good both in matter and form I will not now debate whether Magna Charta which Ordains that every Man shall be tryed by his Peers and the Statute 4 Edw. 3. which says that the Lords shall not be compelled nor shall have power to give Judgment upon a Commoner have sufficiently secured the Liberty of the Subject from Impeachments Nor is it the question before you whether you shall judge of any matter that is a Right or Priviledge of Parliament This is an Indictment for Treason Neither will it be the Question whether an Impeachment depending in the House of Lords against a Commoner by the Commons will bar this Court of its Jurisdiction They say the Commons are the grand Inquest of the Nation and They make their Presntments to the Lords Now when such a Presentment is made 't is worthy consideration whether it be not a Presentment for the King for an Impeachment does not conclude as an Appeal does but contra Ligeantiae suae debitum Coronam digintmem demini Regis so far 't is the King's Suit In an Impeachment the Witnesses for the Prisoner are not sworn neither hath the Prisoner Counsel in matter of Fact as he has in an Appeal at the Subjects Suit The King may pardon part of the Sentence It was so done in Richard the second 's time and in my Lord Stafford's Case but suppose it that 't is the Suit of the People yet that cannot preclude the King from his Suit The Consequence which they urge as such a dismal one will be nothing which is If he should be acquitted here he could not plead auter foitz acquit and so would be twice brought in Jeopardy for the same Offence for it is the same in all Cases of Appeals This is not like the Case of an Appeal for Murder neither for tho' it hath been used discretionarily to stay the Suit of the King and prefer the Subjects Suit it was because the Subject had the nearest concern as the Son in the Death of the Father The reason of that turns quite contrary here in this Case that very reason will have the King's Suit to be preferred for there is no Treason but against the King he has the nearest concern and the wrong is primarily and originally to himself Now for the Objection that if you try this Man upon the same reason you may try the Lords in the Tower Their Case is different and the Lords removing the Indictments against them into Parliament that no Prosecution might be upon them seems to imply that this Tryal may be in this Case for certainly they thought the King's Court might proceed had not the Indictments been removed As to the form of the Plea I conceive 't is not a formal Plea We know here of no form of Pleading an Indictment but what sets forth the Indictment particularly 't is so in all the Presidents I have seen and the Law-Books resolve it must be so as Wrott and Wiggs Case But they say there is a difference between their Case and those I put for that 't is the Course of Parliament to Impeach generally so they could not have pleaded otherwise then the Case was This Reason holds rather the other way For if in any Case such a general way of pleading with reference to the Record were to be admitted it were in Case of an Indictment because there is no Indictment but what particularly sets forth the Felony and when produced is capable of being applyed but here if the Record be brought in 't will no more ascertain the matter of the Impeachment then the Plea does already And as the Plea is naught for not setting out the Record so is the Averment insufficient too for the he does averr That the Treason in the Indictment and the Treason for which he was Impeached are one and the same and not diverse affirmatively and negatively yet he ought to have said That the Treason for which he is indicted and the Treason mentioned in the Impeachment it one and the same For if he was Impeached generally without mention of particulars it is impossible to be reduced to a certainty so 't is an Averment of a Fact not capable to be tryed We do think upon the whole matter without entring upon the debate whether a particular Impeachment lodged in the House of Lords does preclude the King from his proceedings We have a good Case upon this Plea for that is not a Question necessary to be resolved tho' it be not granted by the King neither But the Question is whether this be a formal Plea and whether here be sufficient matter set forth upon a Record to bring the other matter into Question and tye up the hands of the Court. Serjeant Jefferies then said I shall only offer one word to the informality of the Plea They cite the Case of the Lords in the Tower as a Judgment for them which seems to be against them for by the Lords removing the Indictments into Parliament They seem to be of Opinion that notwithstanding they were Impeached before the Lords yet there might have been proceedings upon those Indictments had they not been