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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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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 Letter to a Friend Seneca to the Emperour Occidere contra Legem nemo potest servare nemo praeter te Bracton lib. 1. c. 8. de Corona Rex potestatem habet jucondi de vita membris vel tol lendi vitam vel concedendi LONDON Printed by H. H. for John Fish near the Golden Tun in the Strand 1682. A New-Years-Gift FOR THE Anti-Prerogative-Men c. SIR YOurs I have received and read wherein you are pleased to intimate to me that you are now very well satisfied in your mind by reading over those several Pieces I sent you touching the Right that my Lords the Bishops claim to judge in Capital Causes in Parliament as likewise the unreasonableness of excluding his Royal Highness the Duke of York from the Succession to the Imperial Crown of England But there is yet say you a third scruple remaining on you And that is about the validity of the E. of D's Pardon wherefore you are very desirous to know of me seeing there is nothing hitherto purposely written on that Subject whether I think that same Pardon good and in case I do you expect I should give you some Reasons why I do so I must tell you that 't is contrary to my humour to ingage my self in such kind of Controversies at any time but more especially at this instant you have ever known me like your self a great Admirer of that Principle we commonly call self-preservation However in obedience to your command and to satisfie that obligation which lies on me so far as I can to vindicate Truth and the Father of our Countrey in His Prerogative-Royal I shall not value the sleeping as they say in a whole Skin but shall endeavour to say something which may not be impertinent towards the Conviction of Anti-Prerogative-Men and your own satisfaction And in order thereunto I think it convenient to shew you 1. What a Pardon is 2. By whom and in whose Name only all Pardons are made 3. What things his Majesty may and what he may not pardon 4. Who is Judge of the validity and invalidity of a Pardon when pleaded in the House of Lords or elsewhere And in the last place I shall give you my Sentiments in particular concerning the Pardon granted to the E. of D. together with Solutions to some Objections that have been made in Coffee-Houses A Pardon says Sir Edward Coke is a work of Mercy whereby the King either before Attiander Sentence or Conviction or after forgiveth any Crime Offence Punishment Execution Right Title Debt or Duty Temporal or Ecclesiastical Or A Pardon say others is the remitting or forgiving any offence committed contra dignitatem Coronam Regis Agreeable to that of Seneca Venia est poenae meritae remissio So that Liberatio a poena is the proper effect of a Pardon and it differs from a Dispensation thus a Dispensation obtained doth Jus dare and make the thing prohibited lawful to be done by the Party who hath it But a Pardon frees from the punishment due for a thing unlawfully done yet freedom from punishment is a consequent of a Dispensation though not its effect as 't is most ingeniously observed by the late Lord Chief Justice Vaughan In the next place I am to consider whose Prerogative it is to grant Pardons This surely none can challenge but the King in whom is vested the Soveraign and Supreme Authority of the Nation this I will make good by way of Syllogism He in whom is vested the Soveraign and Supreme Authority of the Nation hath power of Life and Death But in the King is vested the Soveraign and Supreme Authority of the Nation Ergo The King only has power of Life Death The Major Proposition I prove thus Curtius Et cùm in regali solio residebi● vitae necisque omnium Civium Dominus Zouch's Elements part 4. sect 4. Ad Majestatem spectat potestas vitae ac n●cis cùm solus Princeps primariò habet Jus Gladii Jus Gladii Power of Life and Death is an essential and inseparable attribute of the Soveraign and Supreme Authority for where there is not Jus vitae necis there can be no Supreme Power Ergo he in whom is vested the Soveraign Power has power of Life and Death As for the Minor Proposition I presume no body except a Popeling or a Whig but will grant that our King is Supreme Governour of this Realm and all other his Dominions seeing our Authentick Laws and Statutes do so expresly and so often say it All says Bracton are under the King Bracton lib. 1. c. ● num 5. and the King is under God only He hath no equal in his Realm no Co-ordination here because then he could not Command all for amongst Equals there can be no Empire Therefore much less are any his Superiours or can challenge greater Power because then he would be under his Subjects and Inferiores pares esse non possunt potentioribus Ipse autem Rex non debet esse sub homine sed sub Deo Rex says Mr. Cambden supremam potestatem merum imperium apud nos habet nec in imperii clientela est nec investituram ab alio quovis accipit nec praeter Deum superiorem agnoscit The King hath Sovereign Power and Absolute Command among us neither holdeth he his Empire in Vassalage nor receiveth his Investiture or Installing of another nor yet acknowledgeth any Superiour but God alone By the Statutes of 24 H. 8. c. 12. 25 H. 8. c. 21. 1 Eliz. c. 1. 1 Jac. c. 1. the Crown of this Kingdom is affirmed to be an Imperial Crown and what an Empire is Sir Thomas Ridley will give you a clear Demonstration By the Empire says that most Learned Civilian P●rt 2. cap●t sect 7. View of the Civil and Ecclesiastical ●aw I understand not only the Empire of Rome but also every several Kingdom which acknowledgeth no other Emperour than his own Sovereign for howsoever they differ in Name and Title yet is the Office it self all one for every one is Gods immediate Vicar upon Earth in their own Kingdoms for Matters appertaining to Justice But further In our Oath of Supremacy we Swear that the King is the only Supreme Governour Supreme so none not the Pope above him And only Supreme so none has any Co-equal Co-ordinate Corrival power with his Soveraignty But it has been heretofore said by some Hunt-scrap Statists That the Oath of Supremacy is taken in opposition to the Pope to exclude the Supremacy usurped by that old Gentleman for many years 'T is truth they speak but surely not all the Truth for there are two Points in it The one that is Negative whereby we profess that not any Foreign State