Selected quad for the lemma: judgement_n
Text snippets containing the quad
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A45873
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A confutation of a late paper entituled, An answer to the Lords protestation in a letter to a gentleman.
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W. J.; England and Wales. Court of King's Bench.
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1681
(1681)
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Wing I17; ESTC R7817
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7,653
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8
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Parliament had not the Commons by their Impeachment Entitled themselves to his Prosecution for by this Act they made it their Suit And although the Delinquent may be punished elsewhere yet this is no satisfaction to them because not done at their Prosecution So that the Reason why the Lords Protested was not because they thought Trials in Parliament purely Considered more Legal then those out of Parliament but because the Delinquent was now Prosecuted at the Suit of the Commons who could do it no where but in Parliament and to hinder Prosecution there was to stop all Prosecution to them which certainly is Injustice Indeed I must Concur with our Author that Trials by Peers is most Legal out of Parliament But if he means that 't is the only Legal Way of Trying Commoners I cannot be of his Opinion for I believe Trials by Impeachment before the Lords are as lawful and as just as Trials by Juries and the Lords as tender in Giving Judgment notwithstanding they are not upon Oath as the Juries are of their Verdicts But what our Author means by these words There being not one President Parallel with this Case I cannot tell if he means That there never was a Case Parallel with the Case of Fitz-Harris that is the Impeachment of a Commoner Be sure he hath Consulted no other History but Tom Thumb or Guy of Warwick for every Kings Reign abounds with Examples of this Nature and always thought both just and legal The Case of an Appeal if rightly understood signifies nothing for who Sues an Appeal must Sue it in proper Person and to make an Impeachment of the Commons the same with this Case it must be made appear by Presidents out of the Parliament Rolls or Journals or by the Common or Statute Law that the Commons have such an Action or Suit as an Impeachment of a Commoner for Treason which may be Tried in an Inferior Court given them before the Lords so as they cannot refuse to hear or judge it or they do nothing That there is a great Parity betwixt an Appeal and an Impeachment no Man can rationally doubt in that they are both at the Suit of the Party prosecuting for an Impeachment is in the Name of the House of Commons and all the Commoners of England The Prosecution is by themselves for themselves and in their own Names do they demand Judgement which would be very unmannerly if the Suit was not their own Now I cannot Conceive how it it should consist either with Law or Reason that they should demand Judgement on a Person if he was not prosecuted at their Suit so that though it cannot be made appear that the Commons have such a Suit as an Impeachment of a Commoner for High Treason which may be Tried in an Inferiour Court yet 't is clear that there is a great Similitude betwixt an Impeachment and an Appeal in that they are both at the Suit of the Party and then this instance of an Appeal will stand the Lords in some stead for by this it appears that the Offence for which Fitz-Harris is Accused may be Prosecuted at two several Suits One by the King out of Parliament and another by the Commons in Parliament so that there being two distinct Prosecutions of the same Offence it follows also that there are two distinct Judgments so that the Offence may be prosecuted and punished at one Suit yet this is no satisfaction to the other And then Fitz-Harris may be Tried Condemned and Hanged upon an Indictment And yet this is no satisfaction to the House of Commons because they had no interest in that Suit and where they had no Interest they cannot be said to receive satisfaction So then to what our Author and many more do say who Plead up for the Lawfulness of Rejecting the Impeachment that it is no denial of Justice to the House of Commons to hinder their Prosecution because that very Offence which they would punish may be punished elsewhere is highly false for the Punishment of it there doth nothing respect the Suit of the Commons and then certainly there can be no satisfaction And seeing the Law hath made two distinct Prosecutions of the same Offence so that the prosecution at one Suit is not the prosecution at the other It doth also necessarily suppose that there are two distinct Parties that may prosecute at their two distinct Suits so that one prosecuting and receiving satisfaction is no satisfaction to the other for if it was the Law would Frustra agere in permitting two Suits when one would satisfie all Nam frustra fit per Plura quod possit fieri per pauciora Well but it was no denial of Justice to deliver up Drake to the Common Law and therefore can be none to deliver up Fitz-Harris Indeed I concur with our Author that the Lords delivering up Drake to be prosecuted at the Common Law was no denial of Justice yet that it was a denial of Justice to Reject this Impeachment is clear for this Reason for here the Commons required Justice and in the first they did not but let their Suit fall And where the Commons do not require Justice there the Lords cannot be said to deny it But on the contrary when the Commons require the Prosecution of a Delinquent then for the Lords to deny it is without doubt a denial of Justice So that the Denial of Justice doth not purely consist in the Lords delivering over the Suit of the Commons but their doing it when the Commons require Prosecution of it in Parliament Then seeing in Drake's Case the Commons required not any prosecution and in the Case of Fitz-Harris they did require it it follows that in the first Case it was not and in the latter it was a denial of Justice for the Lords to throw out the Impeachment Besides there is a great difference betwixt the not receiving an Impeachment and the removing it when it was for some time Lodged for in the latter Case the Suit is Revived and if the Commons do not prosecute 't is their fault but in the first Case the Suit is absolutely Rejected which is the Act of the Lords Then seeing there is so great a disparity betwixt the Cases of Drake and Fitz-Harris this instance will stand our Author in stead for as I have already said He that quotes a President for a Proof must always prove the President to be the same with the thing that 's to be proved for A dispari non valet Argumentum I have now done with our Author I shall only add a word more If the Commons have a right to Impeach it follows they have a right to prosecute and this must be before the Lords then sure the Lords Rejecting their Suit was the denying them what was their right and this certainly is a denial of Justice But some say They have a Kight if the Lords please so that this Right depends on the Will of the Lords but this is false for their Rights of which Impeaching is one are Founded on the Ancient Practice of Parliament and not on the Will of the Lords And seeing the Lords cannot alter the Practice of Parliament where the Commons are concerned without a breach of the Law of Parliaments it more strongly follows that this was Injustice But 't is Objected That if the Commons should have this they might Impeach the whole Nation and so hinder the King of all Prosecution That the House may Impeach all is possible but that they will is highly improbable But this cannot hinder the Kings Suit for if the Commons do not prosecute in any reasonable time the Lords may upon Proclamation quit the Prisoner who is still liable to an Indictment SIR I am Your Humble Servant W. I. LONDON Printed for T. D. 1681. FINIS
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 Peerâ—â—â— 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