A PLEA FOR THE Pardoning Part OF THE SOVERAIGNTY OF THE KINGS OF ENGLAND LONDON Printed by H. H. for John Fish near the Golden-Tun in the Strand 1682. A PLEA for the Pardoning Part of the Soveraignty of the Kings of England IF Monarchy hath been by God himself and the experience of above 5000 years and the longest Ages of the World approved as it hath to have been the best and most desirable form of Government And the Kingdom of England as it hath been for more than 1000 years a well tempered Monarchy and the Sword and Power thereof was given to our Kings only by God that ruleth the Hearts of them The means thereunto which should be the Power of Punishment and Reward can no way permit that they should be without the Liberty and Prerogative of Pardoning which was no Stranger in England long before the Conquest in the Reign of King Athelstane who did thereby free the Nation from four-footed Wolves by ordaining Pardons to such Out-laws as would help to free themselves and others from such villanous Neighbours the Laws of Canutus also making it a great part of their business to injoyn a moderation in punishments ad divinam clementiam temperata to be observed in Magistracy and never to be wanting in the most Superior none being so proper to acquit the offence as they that by our Laws are to take benefit by the Fines and Forfeitures arising thereby Edward the Confessors Law would not have Rex regni sub cujus protectione pace degunt universi to be without it when amongst his Laws which the People of England held so sacred as they did hide them under his Shrine and afterwards precibus fletibus obtained of the Conqueror that they should be observed and procured the observation of them especially to be inserted in the Coronation-Oaths of our succeeding Kings inviolably to be kept And it is under the Title of misericordia Regis Pardonatio declared That Si quispiam forisfactus which the Margin interpreteth rei Capitalis reus poposcerit Regiam misericordiam pro forisfacto suo timidus mortis vel membrorum perdendorum potest Rex ei lege suae dignitatis condonare si velit etiam mortem promeritam ipse tamen malefactor rectum faciat in quantumcunque poterit quibus forisfecit tradat fidejussores de pace legalitate tenenda si vero fidejussores defecerint exulabitur a Patria For the pardoning of Treason Murder breach of the Peace c. saith King Henry the First in his Laws so much esteemed by the Barons and Contenders for our Magna Charta as they solemnly swore they would live and die in the defence thereof do solely belong unto him super omnes homines in terra sua In the fifth year of the Reign of King Edward the Second Peirce Gaveston Earl of Cornewall being banished by the King in Parliament and all his Lands and Estate seized into the Kings hands the King granted his Pardon remitted the Seizures and caused the Pardon and Discharges to be written and Sealed in His Presence And howsoever he was shortly after upon his return into England taken by the Earl of Warwick and beheaded without Process or Judgment at Law yet he and his Complices thought themselves not to be in any safety until they had by two Acts of Parliament in the seventh year of that Kings Reign obtained a Pardon Ne quis occasionetur pro reditu morte Petri de Gaveston the power of pardoning being always so annexed to the King and his Crown and Dignity As the Acts of Parliament of 2 E. 3. ca. 2. 10 E. 3. ca. 15. 13 R. 2. ca. 1. and 16 R. 2. ca. 6. seeking by the Kings Leave and Licence in some things to qualifie it are in that of 13 R. 2. ca. 1. content to allow the Power of Pardoning to belong to the Liberty of the King and a Regality used heretofore by his Progenitors Hubert de Burgh Earl of Kent Chief Justiciar of England in the Reign of King Henry the third laden with envy and as many deep Accusations as any Minister of State could lie under in two several Charges in several Parliaments then without an House of Commons had the happiness notwithstanding all the hate and extremities put upon him by an incensed Party to receive two several Pardons of his and their King and dye acquitted in the Estate which he had gained In the fiftieth year of the Reign of King Edward the third the Commons in Parliament petitioning the King that no Officer of the Kings or any man high or low that was impeached by them should enjoy his Place or be of the Kings Council The King only answered he would do as he pleased With which they were so well satisfied as the next year after in Parliament upon better consideration they petitioned him that Richard Lyons John Pechie and Alice Pierce whom they had largely accused and believed guilty might be pardoned And that King was so unwilling to bereave himself of that one especial Flower in his Crown as in a Grant or Commission made in the same year to James Botiller Earl of Ormond of the Office of Chief Justiciar of Ireland giving him power under the Seal of that Kingdom to pardon all Trespasses Felonies Murders Treasons c. he did especially except and reserve to himself the power of pardoning Prelates Earls and Barons In the first year of the Reign of King Henry the fourth the King in the Case of the Duke of Albemarle and others declared in Parliament that Mercy and Grace belongeth to Him and his Royal Estate and therefore reserved it to himself and would that no man entitle himself thereunto And many have been since granted by our succeeding Kings in Parliament at the request of the Commons the People of England in Worldly and Civil Affairs as well ever since as before not knowing unto whom else to apply themselves for it So as no fraud or indirect dealings being made use of in the obtaining of a Pardon it ought not to be shaken or invalidated whether it were before a Charge or Accusation in Parliament or after or where there is no Charge or Indictment antecedent The Pardon of the King to Richard Lyons at the request of the Commons in Parliament as the Parliament Rolls do mention although it was not inserted in the Pardon was declared to be after a Charge against him by the Commons in Parliament and in the perclose said to be per Dominum Regem And a second of the same date and tenor with a perclose said to have been per Dominum Regem magnum Concilium John Pechies pardon for whom that House of Commons in Parliament was said to intercede only mentioneth that it was precibus aliquorum Magnatum 15 E. 3. The Archbishop of Canterbury before the King Lords and Commons humbling himself before the King Lords and Commons desired that where
he was defamed through the Realm he might be larraigned before his Peers in open Parliamenti unto which the King answered that He would attend the Common affairs and afterward hear others 5 H. 4. The King at the request of the Commons affirmeth the Archbishop of Canterbury the Duke of York the Earl of Northumberland and other Lords which were suspected to be of the confederacy of Henry Percy to be his true Leige-men and that they nor any of them should be impeached therefore by the King or his Heirs in any time ensuing 9 H. 4. The Speaker of the House of Commons presented a Bill on the behalf of Thomas Brooke against VVilliam Widecombe and required Judgement against him which Bill was received and the said William Widecombe was notwithstanding bound in a 1000 pound to hear his Judgment in Chancery And the many restorations in blood and estate in 13 H. 4 and by King E. 4 and of many of our Kings may inform us how necessary and beneficial the pardons and mercy of our Kings and Princes have been to their People and Posterities The Commons accuse the Lord Stanley in sundry particulars for being confederate with the Duke of York and pray that he may be committed to prison to which the King answered he will be advised William de la Poole Duke of Suffolke being in a Parliament in the 28 th year of the Reign of King Henry the 6 th deeply charged by the Commons and not demanding his Peerage but submitting himself to the Kings grace and mercy was only banished for five years Whereupon the Viscount Beaumont in the behalf of the Bishops and the Lords required that the said Judgment without their assent might be no barr to their priviledge of Peerage but no saving at all either requested or granted for or by the Commons And Pardons before Indictments or prosecution have not been rejected for that they did anticipate any troubles which might afterwards happen For so was the Earl of Shrewsbury's in the Reign of Queen Elizabeth for fear of being troubled by his ill willers for a sudden raising of men without a warrant to suppress an insurrection of Rebels Lionell Cranfeild Earl of Middlesex Lord Treasurer of England being about the 18 th year of King James accused by the Lords Commons in Parliament for great offences and misdemeanours fined by the King in Parliament to be displaced pay 50000 l. and never more to sit in Parliament was in the 2 d year of the Reign of King Charles the Martyr upon his Submission to the King and payment of 20000 l. only pardoned of all Crimes Offences and Misdemeanors whatsoever any Sentence Act or Order of Parliament or the said Sentence to the contrary notwithstanding For whether the accusation be for Treason wherein the King is immediately and most especially concerned or for lesser Offences where the people may have some concernment but nothing near so much or equivalent to that of the Kings being the supreme Magistrate the King may certainly pardon and in many pardons as of Outlaries Felonies c. there have been conditions annexed Ita quod stent recto si quis versus eos loqui voluerit So the Lord Keeper Coventry's in the Reign of King Charles the Martyr to prevent any dangerous questions touching the receiving of Fines and other Proceedings in Chancery sued out his Pardon The many Acts of oblivion or general pardon granted by many of our Kings and Princes to the great comfort and quiet of their Subjects but great diminution of the Crown revenue did not make them guilty that afterwards protected themselves thereby from unjust and malicious adversaries And where there is not such a clause it is always implyed by Law in particular mens cases and until the Sovereignty can be found by Law to be in the people neither the King or his people who by their Oaths of Allegiance and Supremacy are to be subordinate unto him are to be deprived of his haute et basse Justice and are not to be locked up or restrained by any Petition Charge or Surmise which is not to be accompted infallible or a truth before it be proved to the King and his Council of Peers in Parliament and our Kings that gave the Lords of Manors Powers of Soke and Sake Infangtheif and Outfangtheif in their Court Barons and sometimes as large as Fossarum Furcarum and the incident Power of Pardons and Remissions of Fine and Forfeitures which many do at this day without contradiction of their other Tenants enjoy should not be bereaved of as much liberty in their primitive and supream Estates as they gave them in their derivatives And though there have been revocations of Patents during pleasure of Protections and Presentations and Revocations of Revocations quibusdam certis de causis yet never was there any Revocation of any Pardon 's granted where the King was not abused or deceived in the granting thereof For in Letters Patents for other matters Reversals were not to be accounted legal where they were not upon just causes proved upon Writs of Scire facias issuing out of the Chancery and one of the Articles for the deposing of King Richard the 2 d. being that he revoked some of his Pardons The recep's of Patents of Pardon or other things were ordained so to signifie the time when they were first brought to the Chancellour as to prevent controversies concerning priority or delays made use of in the Sealing of them to the detriment of those that first obtained them And the various forms in the drawing or passing of Pardons as long ago His testibus afterwards per manum of the Chancellour or per Regem alone per nostre Main vel per manum Regis or per Regem Concilium or authoritate Parliamenti per Regem Principem per Breve de privat sigillo or per immediate Warrant being never able to hinder the energy and true meaning thereof And need not certainly be pleaded in any subordinate Court of Justice without an occasion or to purchase then allowance who are not to controul such an Act of their Sovereign Doctor Manwaring in the fourth or sixth Year of the Reign of King Charles the Martyr being grievously fined by both Houses of Parliament and made incapable of any place or Imployment was afterwards pardoned and made Bishop of St. Asaph with a non obstante of any order or Act of Parliament So they that would have Attainders pass by Bill or Act of Parliament to make that to be Treason which by the Law and antient and reasonable Customs of England was never so before to be believed or adjudged or to Accumulate Trespasses and Misdemeanors to make that a Treason which singly could never be so either in truth Law right reason or Justice May be pleased to admit and take into their serious consideration that Arguments a posse ad esse or ab uno ad plures are neither usual or allowable
of Copyholders heretofore as much as the fourth part of the Kingdom neither the great number of Lease-holders Cottagers c. that are not Freeholders Citizens or Trades-men nor can all the Members of the Body Politick be equally wounded in their Estates or concernments by the vain imaginations causless fears and jealousies and bugbears of other seditious or fanciful Mens own making And to men that have not yet proceeded so far in the School of Revelation as to be sure of the Spirit of Prophesie it may prove a matter of ill consequence that the universality of the People should have occasion ministred and continued to them to be apprehensive of utmost dangers from the Crown from whence they of right expect Protection And a Wonder next a Miracle from whence the Premisses to such a trembling and timorous conclusion can be fetched or how a People whose valiant and wiser Forefathers were never heretofore scared with such panick fears nor wont to be affrighted with such Phantasmes should now suspect they can have no Protection from the Crown when some of them do at the same time labour all they can to hinder it Or how it should happen in the long Rebellious Parliament that after Mr. Chaloner a Linnen Draper of London was hanged for Plotting a Surprize of the City of London and reducing it to the Kings obedience honest Mr. Abbot the Scrivener should be pardoned without any such discontent and murmuring of the People or that Oliver Cromwell should not be debarred of his Power of Pardoning in his Instrument of Government and be allowed to Pardon the Lord Mordant for a supposed Treason against his usurped Authority and our King deriving his Authority legally vested in Him and His Royal Ancestors for more than one thousand years before may not adventure to do it without the utter undoing and ruine of his Subjects in their Properties Lives and Estates by His pardoning of some Capital Offenders Or why it should not be as lawful and convenient for the King to grant Pardons to some other Men as to Doctor Oates or Mr. Bedlow When no Histories Jewish Pagan or Christian can shew us a People Petitioning their Kings that they would not Pardon when all are not like to be Saints or Faultless and it will ever be better to leave it to the Hearts of Kings and God that directs them than to believe Tyranny to be a Blessing and Petition for it And the most exact search that can be made when it findeth the Commons petitioning in Parliament to the King or House of Peers that they may be present at some Tryals there upon their Impeachments cannot meet with any one President where they ever desired or were granted such a reasonless Request pursued and set on by other Mens Designs to have one Mans Tryal had before another and by strugling and wrestling for it expose the King and Kingdom to an utter destruction And therefore in those their fond importunities might do well to tarry until they can find some Reason why the Lords Spiritual may not Vote or Sit as Judges or Peers in Parliament in the Case of the five-Lords as well as of the Earl of Danby Or any President that it is or hath been according to Parliamentary proceedings to have any such Vote or Request made by the Commons in Parliament Who neither were or should be so omnipotent in the opinion of Hobart and Hutton and other the learned Judges of England as to make a Punishment before a Law or Laws with a Retrospect which God himself did never allow but should rather believe that Laws enacted contrary to the Laws of God and Morality or that no Aids or Help are to be given to the King pro bono publico or that there should be no Customs or Prescription or that the King should be governed by His People would be so far from gaining an Obedience to such Laws or Acts of Parliament as to render them to be ipso facto null and of none effect When the King hath been as careful to distribute Justice as his Mercy without violence to his Laws and well-inform'd Conscience hath sometimes perswaded him to Pardon to do Justice or to cause it to be done in a legal and due manner and is so appropriate to the Office and Power of a King so annext appendant and a part of it as none but His Delegates are to intermeddle or put any limits thereunto and if it should not be so solely inherent in Him would be either in abeyance or no where For the House of Commons are neither a Judicature or sworn to do Justice and if they were would be both Judges and Parties and the Lords Spiritual and Temporal are not as to particular proceedings sworn but meerly consultive So as Justice can vest in none but the King who is by his Coronation-Oath only sworn to do it if His Right of Inheritance and greater Concernments than any of His Subjects did not abundantly ingage and prompt Him thereunto and is therefore so every way and at all times obliged to do Justice and Protect the Lives Estates Peace and Liberty of His Subjects as he is with all convenient speed and hast to Try or bring to Judgment a Subject accused of Treason by the Houses of Lords and Commons both or either of them in His Court of Kings-Bench before the Justices thereof or by special Commission by a Lord High Steward in or without the time of Parliament And the King may acquit which amounteth to a Remission or Pardon by a more Supreme Authority than any of His Judges some particular Cases wherein Appeals are or may be brought only excepted do ordinarily by an authority derived from no other not to be debarred by probabilities or possibilities or by consequences not always to be foreseen or avoided For a Man pardoned for Man-slaughter may be so unhappy as in the like manner afterwards to be the death of five or ten more 20000. Rebells pardoned at a time as in the Insurrections of Wat Tyler Jack Cade c. may be guilty of the like Offence twenty or forty years after The Lord Mayor of London that hath an allowance of Tolls and Profits to take a care of the City and wholsomness of Food might be as they are too much careless and undo them in their Health and well being The Judges may as those in the Reign of King Edward the First and Thorp in the Reign of King Edward the Third be guilty of Misdemeanours yet that is not to bereave us of that good which better Men may do us in their administration of Justice our Kings have granted Priviledges to certain Cities and Towns not to pay Subsidies and granted Pardons as their Mercies and right reason inclined them in the course of their several Reigns for many Ages last past yet have not acquitted or left unpunished all the Offenders ever since there being a greater likelyhood that they would not be so easie in