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
pardoning where they were to gain so much by Attainders Fines and Forfeitures And therefore panick vain Fears such as in constantem virum cadere non possunt should not be permitted to affright our better to be imployed Imaginations unless we had a mind to be as wise as a small and pleasant Courtier of King Henry the Eighths who would never endure to pass in a Boat under London-Bridge lest it should fall upon his Head because it might once happen to do so Our Magna Charta's and all our Laws which ordain no man to be condemned or punished without Tryal by his Peers do allow it where it is by Confession Outlawry c. and no Verdict Did never think it fit that Publick Dangers such as Treason should tarry where Justice may as well be done otherwise without any precise Formalities to be used therein For although it may be best done by the advice of the Kings greatest Council the Parliament there is no Law or reasonable Custom of England either by Act of Parliament or without that restrains the King to do it only in the time of Parliament When the Returns Law-Days and Terms appointed and fixt have ever given place to our Kings Commissions of Oyer and Terminer Inquiries c. upon special and emergent occasions And notwithstanding it will be always adviseable that Kings should be assisted by their greatest Council when it may be had yet there is no Law or Act of Parliament extant or any right reason or consideration to bind Him from making use of His ordinary Council in a Case of great and importunate necessity for the Tryal of Peers by their Peers before a Lord High Steward attended by the Kings learned Judges of the Law For Cases of Treason Felony and Trespass being excepted out of Parliament first and last granted and indulged Priviledges by our and their Kings and Princes there can be no solid Reason or cogent Argument to perswade any man that the King cannot for the preservation of Himself and His People in the absence or interval of Parliaments punish and try Offenders in Cases of Treason without which there can be no Justice Protection or Government if the Power of the King and Supreme Magistrate shall be tyed up by such or the like as may happen Obstructions So until the Honourable House of Commons can produce some or any Law Agreement Pact Concession Liberty or Priviledge to Sit and Counsel the King whether he will or no as long as any of their Petitions remain unanswered which they never yet could or can those grand Impostures and Figments of the Modus tenendi Parliamenta and the supposed Mirror of Justice being as they ought to be rejected when the Parliament Records will witness that many Petitions have for want of time most of the ancient Parliaments not expending much of it been adjourned to be determined in other Courts as in the Case of Staunton in 14 E. 3. and days have been limited to the Commons for the exhibiting of their Petitions the Petitions of the Corbers depended all the Reigns of King Edward the First and Second until the eleventh year of Edward the Third which was about sixty six years and divers Petitions not dispatched have in the Reign of King Richard the Second been by the King referred to the Chancellor and sometimes with a direction to call to his assistance the Justices and the Kings Serjeants at Law and the Commons themselves have at other times prayed to have their Petitions determined by the Councel of the King or by the Lord Chancellor And there will be reason to believe that in Cases of urgent necessity for publick safety the King is ought to be at liberty to try punish great and dangerous Offenders without His Great Council of Parliament The Petitions in Parliament touching the pardoning of Richard Lyons John Peachie Alice Peirce c. and a long process of William Montacute Earl of Salisbury were renewed and repeated again in the Parliament of the first of Richard the Second because the Parliament was ended before they could be answered Anno 1. of King Richard the Second John Lord of Gomenez formerly committed to the Tower for delivering up of the Town of Ardes in that Kings time of which he took upon him the safe keeping in the time of King Edward the Third and his excuse being disproved the Lords gave Judgment that he should dye but in regard he was a Gentleman and a Baronet and had otherwise well served should be beheaded and Judgment respited until the King should be thereof fully informed and was thereupon returned again to the Tower King Henry the Second did not tarry for the assembling a Parliament to try Henry de Essex his Standard-bearer whom he disherited for throwing it down and affrighting his Host or disheartning it 16 E. 2. Henry de bello monte a Baron refusing to come to Parliament upon Summons was by the King Lords and Council and the Judges and Barons of the Exchequer then assisting committed for his contempt to Prison Anno 3 E. 3. the Bishop of Winchester was indicted in the Kings-Bench for departing from the Parliament at Salisbury Neither did Henry the Eight forbear the beheading of His great Vicar-General Cromwell upon none or a very small evidenced Treason until a Parliament should be Assembled The Duke of Somerset was Indicted of Treason and Felony the second of December Anno 3 4 Edwardi 6. sitting the Parliament which began the fourth day of November in the third year of His Reign and ended the first day of February in the fourth was acquitted by his Peers for Treason but found guilty of Felony for which neglecting to demand his Clergy he was put to Death In the Reign of King Philip and Queen Mary thirty nine of the House of Commons in Parliament whereof the famous Lawyer Edmond Plowden was one were Indicted in the Court of Kings-Bench for being absent without License from the Parliament Queen Elizabeth Charged and Tryed for Treason and Executed Mary Queen of Scots her Feudatory without the Advice of Parliament and did the like with Robert Earl of Essex her special Favourite for in such Cases of publick and general Dangers the shortest delays have not seldom proved to be fatally mischievous And howsoever it was in the Case of Stratford Archbishop of Canterbury in the fifteenth year of the Reign of King Edward the Third declared that the Peers de la terre ne doivent estre arestez ne mesnez en Jugement Si non en Parlement par leur Pairres yet when there is no Parliament though by the Common-Law their Persons may not then also be Arrested at a common persons Suit they may by other ways be brought to Judgment in any other Court And Charges put in by the Commons in the House of Peers against any of the Peers have been dissolved with it For Sir Edward Coke hath declared it to be according to
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
and that such a way of proceeding will be as much against the Rules of Law Honour and Justice as of Equity and good Conscience And may be likewise very prejudicial to the very ancient and honourable House of Peers in Parliament for these and many more to be added Reasons viz. For former Ages knew no Bills of Attainder by Act of Parliament after an Acquittal or Judgment in the House of Peers until that unhappy one in the latter end of the Reign of King Charles the Martyr which for the unusalness thereof had a special Proviso inserted That it should not hereafter be drawn into Examples or made use of a President And proved to be so fatally mischievous to that blessed King himself and His three Kingdoms of England Scotland and Ireland as he bewailed in his excellent Soliloquies and at his Death his consenting to such an Act and charged His Majesty that now is never to make Himself or His People to be partakers of any more such Mischief procuring State-Errors The House of Commons if they will be Accusers wherein they may be often mistaken when they take it from others and have no power to examine upon Oath wild and envious Informations and at the same time a part of the Parliament subordinate to the King will in such an Act of Attainder be both Judge and Party which all the Laws in the World could never allow to be just And such a course if suffered must needs be derogatory and prejudicial to the Rights and Priviledges and Judicative Power of the Peers in Parliament unparallelled and unpresidented when any Judgments given by them shall by such a Bill of Attainder like a Writ of Error or as an Appeal from them to the House of Commons be enâ—rvated or quite altered by an Act of Attainder framed by the House of Commons whereby they which shall be freed or absolved by their Peers or by that Honourable and more wise Assembly shall by such a back or by-blow be condemned or if only Fined by the House of Peers may be made to forfeit their Lives Estates and Posterities by the House of Commons or if condemned in the Upper House be absolved in the Lower who shall thereby grow to be so formidable as none of the Peerage or Kings Privy-Council shall dare to displease them and where the dernier Ressort or Appeal was before and ought ever to be to the King in His House of Peers or without will thus be lodged in the House of Commons and of little avail will the Liberty of our Nobility be to be tryed by their own Peers when it shall be contre caeur and under the Control of the House of Commons Or that the Commons disclaiming as they ought any power or Cognisance in the matters of War and Peace should by a Bill of Attainder make themselves to be Judges and Parties against a Peer both of the Kings Privy Council and Great Council in Parliament touching Matters of that Nature For if the Commons in Parliament had never after their own Impeachments of a Peer or Commoner Petitioned the King to pardon the very Persons which they had Accused as they did in the Cases of Lyons and John Pechie in the 51 year of the Reign of King Edward the Third whom they had fiercely accused in Parliament but the year before the Objection that a Pardon ought not to be a Bar against an Impeachment might have had more force than it is like to have Neither would it or did it discourage the exhibiting any for the future no more than it did the many after Impeachments which were made by the Commons in several Parliaments and Kings Reigns whereupon punishments severe enough ensued For if the very many Indictments and Informations at every Assizes and Quarter-Sessions in the Counties and in the Court of Kings-Bench at Westminster in the Term time ever since the Usurpation and Reign of King Stephen and the Pardon 's granted shall be exactly searched and numbred the foot of the Accompt will plainly demonstrate that the Pardons for Criminal Offences have not been above or so many as one in every hundred or a much smaller and inconsiderable number either in or before the first or later instance before Tryal or after and the Pardon 's granted by our Kings so few and seldom as it ought to be confest that that Regal Power only proper for Kings the Vicegerents of God Almighty not of the People hath been modestly and moderately used and that the multitude of Indictments and Informations and few Pardon 's now extant in every year will be no good Witnesses of such a causelesly feared discouragement And it will not be so easily proved as it is fancied that there ever was by our Laws or reasonable Customs any Institution to preserve the Government by restraining the Prince against whom and no other the Contempt and Injury is immediately committed from pardoning offences against Him and in Him against the People to whose charge they are by God intrusted Or that there was any such institution which would be worth the seeing if it could be found or heard of that it was the Chief or that without it consequently the Government it self would be destroyed To prove which groundless Institution the Author of those Reasons is necessitated without resorting as he supposeth to greater Antiquities to vouch to Warranty the Declaration of that excellent Prince King Charles the First of Blessed Memory made in that behalf when there was no Controversie or Question in agitation or debate touching the power of pardoning in his Answer to the nineteen Propositions of both Houses of Parliament wherein stating the several parts of this well regulated Monarchy he saith the King the House of Lords and the House of Commons have each particular Priviledges Wherein amongst those which belong to the King he reckons the power of pardoning if the Framer of those Reasons might have been fair and candid and added the Words immediately following viz. And some more of the like kind are placed in the King And this kind of excellently tempered Monarchy having the power to preserve that Authority without which it would be disabled to protect the Laws in their Force and the Subjects in their Peace Liberties and Properties ought to have drawn unto Him such a respect and reverence from the Nobility and Great Ones as might hinder the Ills of Division and Faction and cause such a Fear and Respect from the People as may hinder Tumults and Violence But the design being laid and devised to tack and piece together such parcels of His said late Majesties Answer as might make most for the advantage of the Undertaker to take the Power of Pardoning from the Prince and lodge it in the People and do what they can to create a Soveraignty or Superiority in them which cannot consist with his antient Monarchy and the Laws and reasonable Customs of the Kingdom the Records Annals and Histories Reason Common Sense and
to Petition the People and their Fellow Subjects upon a supposed incredible and invisible Soveraignty no man knows when or how radicated and inherent in them The Decree of the great Ahashuerus that Reigned from India to Ethiopia over one hundred twenty seven Provinces whose Laws were holden to be irrevocable was reversed for the preservation of the Jewish Nation upon the Petition of Queen Esther and his holding out his Golden Scepter unto her The unquiet People of Athens now come enough under a Mahometan Slavery would not again wish for Draco's bloody repealed Laws without the mercy of a Prince to moderate them according to the Rules of a prudent and discerning mercy Which made the Goodness and Wisdom of Solomon so extraordinarily eminent in his determination in the Case betwixt the two Mothers claiming one Child Neither can a People ever be or so much as think themselves to be in any condition of happiness when their Laws shall be inflexible and hard hearted and there shall be no Superior Power to allay the rigidness or severity of them No Cities of Refuge or Asylums to fly unto upon occasion of Misfortunes which God himself ordained for his Chosen People of Israel And therefore when Juries may erre or play the Knaves be Corrupt Malicious or Perjured and Judges mistaken our Judges have in their doubtings stayed the Execution until they could attend the King for his determination Whereupon his Pardons did not seldom ensue or a long Lease for Life was granted to the penitent Offender it being not amiss said by our old Bracton That Tutius est reddere rationem misericordiae quam Judicii the Saxons in doubtful Cases appealed to God for discovery by Kemp or Camp Fight Fire or Water Ordeal which being now abolished and out of use requires a greater necessity of the right use of pardoning for Sir Edward Coke saith Lex Angliae est Lex misericordiae like the Laws of Scripture wherein Mercy is not opposite unto Justice but a part of it as 1 John 19. Psalm 71. 2. Jer. 18. 7 8 9 10. Ezek. 33. 13 14. and it hath not been ill said that Justitia semper mitiorem sequitur partem for it is known that a Judge since his Majesties happy Restoration who were he now living would wish he had made a greater pause than he did in a Case near Brodway-Hills in the County of Worcester or Glocester where a Mother and a Son were upon a seeming full evidence Hanged for the Murther of a Father who afterwards when it was too late appeared to be living And Posterity by the remembrance of Matters and Transactions in Times past may bewail the Fate of some Ministers of State who have been ruined by being exposed to the Fury of the People who did not know how or for what they accuse them and left to the never to be found Piety or Wisdom of a Giddy Incensed and Inconsiderate accusing Multitude and Hurrying on the reasonless or little Wit of one another And consider how necessary it had been for the pious good Duke of Somerset in the Reign of King Edward the Sixth to have had his Pardon when at his Tryal neither his Judges nor the prevalency of the faction that would have rather his Room than his Company nor himself could remember to put him in mind to demand the benefit of his Clergy Or how far it would have gone towards the prevention of that ever to be wailed National Blood-shedding miseries and devastions which followed the Murthers of the Earl of Strafford and Archbishop Laud if their Innocencies had but demanded and made use of his late Majesties Pardon Or what reason can be found why a Pardon after an Impeachment of a particular Person by an House of Commons in Parliament or an House of Peers joyning or consenting therewith should not be as valid and effectual in Law Reason and good Conscience As the very many General Pardons and Acts of Oblivion which have been granted by our Kings and Princes to their People for Extortions of Sheriffs Bayliffs c. together with many other Misdemeanours Grievances and Offences often complained of in many of our Parliaments as the Records thereof will witness whereby they have acquitted and given away as much of their own just Rights and Regal Revenues to their Subjects than the Aids and Subsidies which they have Contributed towards his Preservation and in His their own when they have not had a King or Prince but hath been as more especially this our present Sovereign Piger ad poenas ad praemia velox FINIS Ll. Canuti Ll. Edwardi Confessor p. 19. Ll. H. 1. Rot. Claus. 5 E. 2. indorso m. 15. Mat. Paris Rot. part 50 E. 3. Rot. part 51 E. 3. Rot. Claus. 51 E. 3. Rot. part 1 H. 4. Rot. part 15 E. 3. Rot. part 5 H. 4. Rot. part 9. H. 4. Rot. part 38 H. 6. Rot. part 28 H. 6. Exact Collection of Remonstrances Declarations and Messages betwixt his late Majesty and the Parliament Printed by Order of the Commons in Parliament 24. March 1642. Ll. Canusi Rot parl 21 R. 2. Pryns 4 part of his Register of Parliament Writs Prins Animad upon Cokes 4 Instit. Rot. parl Cokes 4 part of the Institutes Cokes 4 part of the Institutes Tit. Parliament Rot. parl 7 E. 1. Ll. Canuti 16. Ll. Inae 6 1 H. 4. ca. 14. Rot. parl 28 H. 6. n. 16 17. Rot. parl 5 E. 3. n. 8. 22 R. 2. In the Abridgment of the Parliament Records in English said to be done by Sir Robert Cotton Rot. parl 1 H. 4. n. 109. 111. Rot. parl 5 E. 3. n. 16. Rot. parl 4 E. 3. n. 16. Rot. parl 5 E 3. Rot. parl 21 R. 2. Estheâ— ca. 1 3 5 8. 1 Reg. 3. Bracton Cokes Instit. 2. 315.