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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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Lordships by the Commoners be fit or requisite for the King to pass into Laws but also of Writs of Error and of Matters of Fact either not determinable in other Courts yet in regard of nicety or special Matter they cannot well discern or judge Moreover to these Lords of Parliament belongeth a power and that derived from the Vide Cottons Tower Records Crown of giving Judgments in Cases of Treason of Impeachments for several Crimes of Slanders of Peers of Breaches of Priviledges both upon Peers and Commons together with Capital Censures of Beheading Hanging Drawing Quartering Imprisonment Banishment Fine and Forfeiture both of Lands Goods and Offices inflicted on Offenders Now these two The Lords and Commons I mean are convened by the Kings Writs to assist him with their Advice in difficult and weighty Matters relating to Church and State And in so doing they ease their Soveraign Lord of much Labour but do not thereby deprive him of any one Tittle of Royal-Power They may says the most glorious Royal Martyr remember that at best they sit in Parliament as my Subjects not my Superiours called to be my Counsellors not Dictators Their Summons extends to recommend their Advice and not to command my Duty You must know that by calling a Parliament which is but a Meeting of the King and his Subjects and such they continue as well collectively as they were before singly and a Meeting in its own nature dissolvable at pleasure the King is not grown less or departed with any thing either by way of Abdication or Communication of the soveraign Power that is vested in him as King of England That were indeed to make more than one Soveraign in a Kingdom a thing altogether inconsistent with Supremacy and Monarchy So that the Soveraignty must be totally in the King and where that is there must be Gladii potestas the power of Life and Death a Right as well of pardoning as of punishing Offenders Like as divers other things do solely belong to the King as Prerogatives incident to His Imperial Crown and Royal Dignity whereof the Subject hath nothing to do as the power of Calling Holding Proroguing and Dissolving of Parliaments of advancing to Honours Offices and Commands of raising of Armies of entring into Leagues and Treaties of Founding Corporations Guilds and Fraternities of coyning of Money of making Letters of Denization to whom and how many he will Together with many other things that appertain to His Majesty as special Flowers of His Crown The King of England I must confess may limit himself by Promise or Contract in Parliament as he hath been pleased to restrain himself from the use of that power which makes new Laws and repeals old without the consent of the Lords and Commons in Parliament as likewise from raising Money upon the Subject without their consent not to pardon the Offences of such Persons as are before Impeach'd in the High Court of Parliament without the consent of his two Houses or the like But then I must demand that such a Grant be produced let it be made appear by an authentick Record that the King of England has done so And when such a Record is shewn I shall be as ready to plead against the validity of the E. of D's Pardon as I do now for it Till then I desire to be excused Besides 't is not enough to affirm That there cannot be found any President in the Parliament Rolls wherein any Peer of the Realm has been pardoned by the King after an Impeachment has been transmitted to the Lords by the Commons but a President must be offered to prove That a Pardon has been adjudged void where it has been pleaded by a Peer in a later that was charged with High Treason in a former Parliament But further yet Sir If the King can under his Great-Seal command all Process and proceedings in Criminal Causes to cease against one accused before in Parliament then sure what should hinder but the King may pardon such a one For a discharge of any further proceeding against such a one directed to the Judges and their Award thereon That the Party accused shall go sine die is equivalent to a Pardon under the Broad-Seal of England now that there hath been such a kind of discharge and thereon an Award given by the Judges in the Kings-Bench to that purpose I will make good by this Record following Steven Gravesend Pasch 4.7 E. 3. Coram Rege Rot. 53. Co. 3. Inst 239. Bishop of London was accused in Parliament for adherency to Edmond Earl of Kent in his Treasons where by Order of Parliament the matter was referred to the Kings-Bench to be tryed where the Bishop pleaded Not-Guilty and afterwards was discharged by the Kings Writ under the Great-Seal directed to the Judges of the Kings-Bench to this effect Licet venerabilis Pater Stephanus London Episcopus per breve nostrum coram nobis ad sectam nostram implacitetur de eo quod ipsi Edmundo nuper Comiti Kantiae adhaesisse debuerat Quia tamen praedict Episcopus de adhaesione praedict omnino immunem reputamus vobis mandamus quod placito praedict coram nobis ulterius tenen omnino supersedeatis Teste meipso apud Westm 12 die Decembr Anno Regni nostri 4. The Award of the Court that is given thereupon is very remarkable viz. Cujus brevis praetextu consideratum est quod praedictus Episcopus eat inde sine die c. Et ulterius non procedatur versus eum Sir Edward Coke upon this same Record comments thus This man it may be thought that the taking of the Pardon should be an implyed Confession of the Fault and therefore went a new way but no man that is wise and well advised will refuse God and the Kings Pardon how often soever he may have it for there is no man but offendeth God and the King almost every day and the Pardon is the safest and surest way Out of this notable President and the Comment of Sir Edward Coke thereon we may make these several Remarques First That though Steven Gravesend was charged with High Treason before in Parliament yet the Judges of the Kings-Bench upon the Kings Writ to them directed under the Broad-Seal did award that the said Steven should go sine die Et ulterius non procedatur versus eum Secondly That this same Award was given by the Judges before any Sentence or Judgment passed either by themselves or by the Lords in Parliament Thirdly That if this manner of proceeding with Steven Gravesend had been contrary to the Laws and Customs of Parliament the Lords and Commons would no doubt have disputed the Kings Prerogative in this Case And I cannot learn out of any Antiquary or Historian that this same Bishop of London was ever questioned afterwards in Parliament or the Kings-Bench Judges for thus obeying the Kings Writ Fourthly That if this manner of proceeding in Gravesend's Case be valid in Law as it is