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
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 residebiâ— vitae necisque omnium Civium Dominus Zouch's Elements part 4. sect 4. Ad Majestatem spectat potestas vitae ac nâ—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. â— 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 Pâ—rt 2. capâ—t sect 7. View of the Civil and Ecclesiastical â—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
high Court of Parliament That with the Soveraign Prince resideth the prime and supreme Power of interpreting of his own Laws Rescripts and Grants cannot be denied for both the Common and Civil Law Professors do affirm Bracton lib. 2. c. 16. num 3. Fleta lib. 3. c. 14. num 4. D. 28.6 43. D. 50. 17.191 c. 1.14.12 1. Princeps conditor interpres Legum unicus That in doubtful and obscure points the interpretation and will of the Prince is to be expected since it is his part to interpret who made the Law or Grant Now our King as the supreme Legislator and interpreter has communicated this his Authority to some particular persons for the interpreting and expounding his Laws and Grants And the reason why he has so delegated this power to them is rendred by Fortescue thus You shall better says he to H. 6. execute Judgment by others than by your self neither hath it been seen that any King of England hath pronounced Judgment with his own mouth The former part of Fortescue's words are Orthodox but the latter part are not so If the famous Antiquary Mr. Selden may be credited for he in his Notes ad cap. 8. of Fortescue affirms that Kings themselves often sate in Court in the Kings-Bench and in the Rolls of Charters under King John and the time near him often occur Grants that such or such English should not be Impleaded or put to Answer nisi coram nobis vel Capitali Justitia nostra and to Normans nisi coram nobis vel Capitali Seneschallo nostro Here coram Capitali Justitia is divided from coram Rege That Kings have in former times personally sate in the Kings-Bench Vide Co. Litt. 7.1 b. Cambdens Britannia in Engl. f. 178. Sir Henry Woottons Hist. of Christendom f. 213. Co. 4. Inst. 73. the last signifying before the Kings person although now Pleas held in the Kings-Bench before the Successor of the Capitalis Justitia are entred coram Rege But è diverticulo in viam we will return to the point proposed and shew you who are the competent Judges of the validity or invalidity of a Pardon pleaded in the house of Lords In order thereto we must distinguish betwixt matters moved in the upper House of Parliament that concern the Customs and Priviledges thereof and those matters that purely concern the common and Statute Laws of the Realm The former must be determined adjudged and discussed by the course of Parliament Co. 4. Inst. f. 15. Co. lib. 13. f. 63. and not by the Civil Law nor yet by the Common Laws of this Realm used in more inferiour Courts which was so declared to be secundum Legem consuetudinem Parliamenti concerning the Peers of the Realm by the King and all the Lords Spiritual and Temporal and the like pari ratione is for the Commons for any thing moved or done in the House of Commons But on the other side if any question ariseth meerly upon the Common or Statute Law the Judges of England are to give their Opinions when ever it be demanded by the Lords in their House as for instance if a Pardon be pleaded by a Peer or any other person there and 't is doubted whether it be good or not in Law Vide Sir Robert Filmers Patriarcha where you may see of what Authority the Opinion of the Judges hath been in Parliaments This Query I humbly conceive must be referred by the Lords to the Kings Justices for their solution And as all the Judges or the majority of them shall declare themselves pro or con the Lords of Parliament are wont usually to determine and give sentence accordingly But if the question be whether the manner and circumstances that attend such a Pardon be valid or not by the Custom and Law of Parliament then the Lords of Parliament themselves are solely to decide the doubt without any Reference to the Opinion of the Judges for they are not to intermeddle with any Matters of Parliament Vide Cottons Collect f. 651. 31 H. 6. num 27. and so have they in several Parliaments confessed This Sir may suffice as to the fourth particular by me propounded and now I hasten to the last point of all and that is to consider of the E. of D's Case in particular but before I shall handle it I must tell you this That where-ever I have or shall mention Peers or Lords of Parliament I intend as well the Lords Spiritual as the Lords Temporal for I am very well satisfied now as I understand you are that the Lords Spiritual have as much Right in virtue of their Temporal Baronies to sit in Capital Cases as the Temporal Lords can pretend to and I am verily persuaded that there was never any Criminal Cause handled in Parliament where the Lords Spiritual did not sit either personally or by Proxy And if not one of these ways yet undoubtedly they upon their withdrawing ever entred their Protestation for the saving of that same Right and Priviledge And so I now come to treat of the validity of the E. of D's Pardon And I take this Pardon me if I mistake to be his Case The E. of D. is impeached before the Lords E. of D's Case by the Commons of England of High Treason and of several other misdemeanors But before any further proceeding in proof of the Charge against him His Majesty dissolves that Parliament and upon the dissolution thereof the King grants to the E. of D. a Pardon of all Treasons and Misdemeanours whatsoever And then His Majesty calls another Parliament whereat the Commoners exhibit new Articles of the same Treasons and Misdemeanors against the said Earl whereupon he pleads the said Pardon to this second Impeachment in the House of Lords Now the Question will be The Query whether this Pardon be good or not The Resolution whereof will depend on an Answer given to this Query following viz. Whether his Majesty by virtue of his Prerogative-Royal can pardon in the interval of two Parliaments those Crimes whereof the E. of D. was impeached in the former Parliament I humbly conceive That his Majesty can by His Prerogative-Royal grant such a Pardon I presume it will be admitted that had this Pardon been purchased before any Impeachment in Parliament it had been good But the granting of it after Articles exhibited in the House of Lords makes the doubt which I shall endeavour thus to clear The Commons 't is true as the general Inquisitors of the Realm have authority from the King to examine any Crime be it Treason Felony Oppression Bribery Extortion or the like committed by a Lord of Parliament Spiritual or Temporal and if they find by the Vote of the House the Charge to be true they have power to transmit the same to the Lords with the Witnesses and Proof As for the Peers they are the Supreme Court of Judicature in this Nation not only to judge whether matters presented to their
otherwise my Lord Coke would have told us so then a Fortiori the Kings granting a Pardon to the E. of D. must be much more For Coke says that a Pardon is the safest and surest way So that we may conclude That either way is good though that of a Pardon be the safest and surest Is not a Fine and Common Recovery the safest Conveyance for the passing of Lands And yet a Translation by Feoffment by Bargain and Sale c. is a good Conveyance though not the safest and surest In a word Sir Edward Coke does not at all intimate unto us that either way is illegal but only gives the Bishop a Reprimende for his Impudence in not embracing the best expedient when he had the choice of two Sir If what I have said in defence of the E. of D's Pardon give you any satisfaction I shall be glad But now I think on 't my Papers will be the more welcome if I return you Solutions to those Objections that have been started at Coffee-Houses Objections and Solu ∣ tions and indeed mentioned in your Letter The first Objection is say you a notable distinction made betwixt Offences committed against the Crown and Offences perpetrated against the State or Common-wealth the former the King may pardon but by no means the latter I answer That this is a distinction without any diversity For I affirm that whatsoever is done against the State or Common-wealth is done against the Crown Et è contra I am sure in all Monarchical Governments the learned Sir Henry Hobart in his Reports tells us That the King and the Common-wealth make but one Hobarts Reports f. 342. Sheffields Case That the King is the Head of the Common-wealth and the Reformation of all general wrongs belongs to him And Cujus est condemnare Idem Cuddington v. Wilkins punire ejus est absolvere ignoscere Qui damnare potest says the Civil-Law Text is absolvendi quoque potestatem habet And therefore in all our Indictments it is said That such a thing was done Contra dignitatem Coronam Regis But I never read that such a thing was perpetrated Contra rem publicam or statum populi Anglicani unless it were in the late Usurpation when this our glorious antient and hereditary Monarchy was turned into a Democratick Slavery under the Title of The Common-wealth of England I shall further add to what I have already said towards the utter confusion of this distinction viz. That His Majesty can by virtue of His Royal-Power either before Attainder Sentence or Conviction or after pardon all Crimes whatsoever and remit all punishments exemplary to deter others and not tending to the satisfaction or safety of particular Persons In short he can pardon all manner of Crimes that are transient and not continuing before Sentence or Conviction And if the E. of D. be guilty of such Offences as are permanent and continuing pray let the Anti-Prerogative-Men name them and in so doing they will very much oblige the World All this our Books of Law are ready to make good as you have read before in this Discourse But then it may be replied That although the King can pardon any Crime be it Treason Felony Bribery Perjury Extortion or the like before Attainder Sentence or Conviction or after yet if an Impeachment be once lodged in the Lords House against any Person that Person cannot be pardoned until he be convicted and hath received Sentence To this I rejoyn thus It must be granted me as I have said before that if the E. of D. had procured the Kings Pardon before any Articles had been by the Commoners exhibited against him the Pardon had been good And why it should not be so afterwards passeth my comprehension For the Impeachment in Parliament does neither alter the nature of the Crimes nor is the Kings Power of pardoning any way lessened thereby the Crimes are the same after an Accusation in Parliament as they were before they are nor greater nor lesser Treason is Treason Felony is Felony and the like of other Offences And as for the Regal-Authority in granting Pardons it continues the same as well after as before the King of England being as free and absolute a Monarch in a Session of Parliament as out of it which no able Jurist I am confident will deny Thus much in answer to your first Objection Your other Objection is this That the E. of D's Pardon is not valid in Law because it is but a Stamp-Patent by Creation having not passed the Seals as Statute-Law requires As to this Objection I give you this Answer There are but two Statutes if I mistake not that prescribe a Course or Form for passing things under the Kings Seals The one of these same Statutes is the 13 R. 2. c. 1. how Charters of Pardon ought to pass wherein it is provided 1. That in a Pardon for Murder Treason Rape c. The Offence committed shall be specified and if there be not such a specification the Charter must be disallowed I suppose the E. of D's Pardon is not defective in this point 2. That no Pardon of Treason or Felony shall pass without Warrant of the Privy-Seal together with a Forfeiture of him at whose Suit such a Pardon is obtained This latter clause is wholly Repealed and annulled by the 16 R. 2. c. 6. And therefore it affects not the E. of D's Pardon at all The other Statute is the 27 H. 8. c. 11. wherein is set down the course of suing forth Grants under the Kings Sign Manual c. Now if this Statute doth extend to Charters of Pardon as it doth to other Grants which perhaps may be so because every Pardon is a Grant from the King yet neither of them be it Charters of Pardon or other Grants are declared ipso facto void If the course prescribed by this Act be not observed But only it is said That before any Grant be passed under any of the Kings Seals It shall be delivered unto the Kings principal Secretary or to one of the Clerks of the Signet to be at the said Office passed accordingly together with a penalty inflicted on the Clerk that shall alter the course prescribed and no more I will offer you an Instance A Parson Marrys a Couple that may lawfully marry without any Banes or Licence and in a private House and not according to the Canonical Hour This Parson for acting contrary to the Canons of Holy Church is lyable to a Suspension c. But yet the Marriage shall stand good and firm in Law For multa sunt quae impediunt promovendum quae non dejiciunt jam promotum Fieri non debuit sed factum voluit So say I in the E. of D's Case If the Pardon which is but a Stamp-Patent by Creation had passed all the Offices or some or one of them the Officer or Officers had peradventure been lyable to a Parliamentary Reprimend yet notwithstanding the E. of D's Pardon is valid and good in Law Contra omnes Gentes To be short the Rule of Holy Scripture is in the Case Matrimonial Whom God hath joyned together let no Man put asunder So in the Case of Pardons what his Majesty by His Prerogative-Royal hath Knit together viz. His Mercy and the E. of D's Life Let not the Lords and Commons endeavour to separate Sacrilegii instar est says the Civil Law divinis obviari benesiciis That is to say Rescriptis Principum adversari And as I plead for the E. of D's Pardon so I hope my Plea will not prove a Scandal to others I am sure it will not if they do but consult Seneca in his Controversies Iniquum est says he Collapsis manum non porrigere Commune hoc jus generis humani est nemo invidiosum jus postulat quod alteri pro futurum est Thus Sir having given you freely my poor Sentiments touching the E. of D's Pardon I shall close my Paper with the very same words that a late Author useth And they are these I take it for one of the greatest happinesses of our Government That His Majesty hath an undoubted free Right of granting Pardons as he pleases And for argument of inconvenience it may as well be urged against any Act of Mercy the King shews Every Act thereof being as inconvenient to some as it is merciful to others And therefore hath the King only been Judge in all Ages when and where he will dispense it and the People would be in a miserable condition if it were otherwise FINIS In the Title Page in the Quotation of Braction for 〈◊〉 read judicanâ—â—