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A29950 A New-Years-gift for the anti-prerogative-men, or, A lawyers opinion, in defence of His Majesties power-royal, of granting pardons as he pleases wherein is more particularly discussed the validity of the E. of D's pardon, by way of a letter to a friend. Brydall, John, b. 1635? 1682 (1682) Wing B5264; ESTC R19863 12,953 38

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or Potentate nor the Pope hath this Power The other Positive by which the Subject of this Power is specified The Kings Highness is the only Supreme Governour of this Realm as in all Spiritual things and Causes so likewise in Temporal matters Both Ecclesiastical and Civil Supremacy are in this Oath asserted to be in the King It was not thought sufficient to tell who was not Supreme but to declare also who was So that now Sir you may perceive that by our known Laws our King is Invested with such a Supremacy as excludes both Pope and People from having any Power Jurisdiction or Authority over him And if so then certainly we may conclude that he who has Vested in him the Sovereign Power has also Vitae ac necis Authoritatem the sole power of Life and Death to save or destroy as well to pardon as to punish Offenders Next come I to consider what Offences the King as Supreme Governour of this Realm can pardon or remit and what he cannot as to Temporal matters In the first place I shall shew you what things the King cannot pardon according to the Laws of England as for example In an Appeal of Death 11 R. 2. Chr. 17. 2 R. 3.8 Co. 3. Inst. f. 237. Robbery Rape c. the King cannot pardon the Defendant for the Appeal is the Suit of the Party to have Revenge by Death and whether the Defendant be attainted by Judgment c. or by Outlawry the Kings Pardon shall not discharge the Defendant So in an Attaint by A. against the Party 13 E. 4 5. a. Co. 3. Inst. 237. and the Petit Jury against the party to have Restitution this the King cannot pardon So the King cannot pardon Nuzances Co. 3. Inst. 237. c. 20. 2 part Dewell v. Saunders Davis Rep 75. a. b. Houghans Rep. Thomas v. Sorrel that are not transient but continuing as a Nuzance in Viâ Regiâ that still continues and is not ended until removed and so of a Water-course diverted or Bridge broken down they cannot be pardoned so as to acquit the Nuzance-maker for Committing them So a Mayor of a Town Vanghans Rep. Edw. Thomas v. Sorrel or other Toll-taker who is penally bound to provide the Market-Measures and doth not cannot be pardoned by the King because the fault still continues So if one be bound in a Recognizance to the King 1 H. 7.10 11 H. 7.12 Co. 3. Inst 238. to keep the Peace against another by name and generally all other Subjects of the King In this Case before the peace be broken the King cannot pardon or release the Recognizance although it be made only to him because it is for the benefit and safety of his Subjects So after an Action popular be brought 1 H. 7.3 a. Co. 3. Inst. 194 195 238. Tam pro Domino Rege quam pro seipso according to any statute the King cannot discharge the Informers part because by bringing of the Action the Party hath an Interest therein Come I now Sir to demonstrate what Offences the King can pardon by the Law of England If a Man Arrested for Felony Co. 3. Inst. 2●7 Hobarts Reports Cuddington v. Wilkins f. 82. break Prison he loses his Battel but if the King pardon that breaking of Prison the Defendant shall be restored to the Battel and the Counterplea taken away So in divers cases at the Suit of the Party when the Defendant either by the Common Law or by any Statute besides the restitution or damage of the Party Plaintiff is thereby also to have exemplary punishment the King may pardon the same as first for instance at the Common-Law In an Attaint by A against the party and the Petit Jury Co. 3. Inst. 237. against the party to have restitution this as is said before the King may not pardon Against the Petit Jury by the Common-Law That they should lose Liberam Legem their Wives and Children cast out of their Houses their Houses wasted their Trees prostrated their Meadows ploughed up their Goods and Chattels seized and their Bodies taken This the King may pardon because it is a punishment exemplary to deter others and tendeth not to the restitution or satisfaction of the Plaintiff Now to offer Instances upon Statute-Law The Defendant in an Appeal of Murder Co. lib. 5. f. 50. Buggins Case Co. 3. Inst. 237. Hobarts Rep. f. 294. Seale v. Williams upon Not Guilty pleaded was found Guilty of Man-slaughter And it was resolved by the Judges upon Conference betwixt them That the Queen may pardon the burning of the Hand for that is no part of the Judgment at the Suit of the Party Plaintiff in the Appeal but it is a collateral and exemplary punishment inflicted by the Statute of 4 H. 7. c. 13. So upon the Statute of Westm Co. 3. Inst. f. 171 237. 2. c. 25. that giveth two years Imprisonment in a Ravishment of Ward the King may pardon the said corporal punishment of Imprisonment So upon the Statute of Westm c. 20. 15 Eliz. Dyer 323. 9 Eliz. Dyer 269. Co. 2. Inst. 200. De Malefactoribus in parcis the Damages concern the Plaintiff and therefore the Kings pardon cannot dispense with them but the Ransome the finding of Surety and the forjuring the Realm are punishments exemplary and concern the King and therefore he may pardon the same So there is a Clause in the Statute of 5 Eliz. c. 14. 15 Eliz. Dyer 322. Taverners Case Co. 3. Inst. 171. That the Plaintiff shall not release nor discontinue the punishment c. but only Costs and Damages and yet it was resolved that the Queen might pardon the corporal punishment that doth trench to common example So before any Action popular brought 1 H. 7.3 Co. 3. Inst. 194 195 238. 37 H. 6.4 the King may discharge the whole because the Informer cannot bring an Action or Information originally for his part only but must pursue the Statute So the breaking the Assize of Bread and Ale the forestalling the Market Ingrossing Vaughans Reports Edward Thomas v. Sorrel Regrating or the like which continue not but are over as soon as done until done de novo may be pardoned by the King so as the Offender shall not be Impleaded for them otherwise than by persons that have received particular damage which the King cannot remit To conclude Vaughans Reports Edward Thomas v. Sorrel Although the King cannot acquit Nuzance-Makers for committing Nuzances yet the Fine or punishment imposed for the doing them may be pardoned by the King Thus Sir having given you a true extent and latitude of his Majesties pardoning Power that is to say what the King may and what he cannot pardon relating to matters Temporal I come to the next particular proposed in the beginning And that was to shew who ought to be Judge and Interpreter of Pardons granted by the King as to the validity or invalidity of them when pleaded in the