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 [Page 2]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 'tis 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, [Page 4]as 'tis most ingeniously observed by the late Lord Chief Justice Vaughan.

In the next place I am to consider whose Prerogative it is to grant Pardons. This surely none can challenge but the King, in whom is vested the Soveraign and Supreme Authority of the Nation; this I will make good by way of Syllogism.

He, in whom is vested the Soveraign and Supreme Authority of the Nation, hath pow­er of Life and Death;

But in the King is vested the Soveraign and Supreme Authority of the Nation: Ergo,

The King only has power of Life, & Death.

The Major Proposition I prove thus; Curtius; Et cùm in regali solio residebi [...], vitae, ne­cis (que) om­nium Civi­um Domi­nus. Zouch's E­lements part. 4. sect. 4. Ad Maje­statem spe­ctat potestas vitae, ac n [...]cis, cùm solus Princeps primariò habet Jus Gladii. Jus Gladii, Power of Life and Death, is an essential, and inseparable attribute of the Soveraign and Supreme Authority (for where there is not Jus vitae & necis, there can be no Supreme Power,) Ergo he, in whom is vested the Soveraign Power, has power of Life and Death.

As for the Minor Proposition, I presume no body (except a Popeling or a Whig,) but will grant that our King is Supreme Gover­nour [Page 5]of this Realm, and all other his Domi­nions, seeing our Authentick Laws and Sta­tutes do so expresly and so often say it.

All (says Bracton) are under the King, Bracton. lib. 1. c. [...]. num. 5. and the King is under God only; He hath no equal in his Realm (no Co-ordination here) because then he could not Command all, for amongst Equals there can be no Empire, Therefore much less are any his Superiours, or can challenge greater Power, because then he would be under his Subjects; and Inferi­ores pares esse non possunt potentioribus. Ipse autem Rex non debet esse sub homine sed sub Deo.

Rex (says Mr. Cambden) supremam potesta­tem, & merum imperium apud nos habet, nec in imperii clientela est, nec investituram ab alio quovis accipit, nec praeter Deum, superiorem ag­noscit. The King hath Sovereign Power, and Absolute Command among us, neither holdeth he his Empire in Vassalage, nor re­ceiveth his Investiture or Installing of ano­ther, nor yet acknowledgeth any Superiour but God alone.

By the Statutes of 24 H. 8. c. 12. 25 H. 8. c. 21. 1 Eliz. c. 1. & 1 Jac. c. 1. the Crown of this Kingdom is affirmed to be an Im­perial [Page 6]Crown: and what an Empire is, Sir Thomas Ridley will give you a clear Demon­stration.

‘By the Empire (says that most Learned Civilian). P [...]rt. 2. cap [...]t. sect. 7. View of the Civil and Eccle­siastical [...]aw. I understand not only the Em­pire of Rome, but also every several King­dom, which acknowledgeth no other Em­perour than his own Sovereign; for how­soever they differ in Name and Title, yet is the Office it self all one; for every one is Gods immediate Vicar upon Earth, in their own Kingdoms, for Matters apper­taining to Justice.’

But further, In our Oath of Supremacy we Swear, that the King is the only Su­preme Governour: Supreme, so none (not the Pope) above him: And only Supreme, so none has any Co-equal, Co-ordinate, Corrival power with his Soveraignty. But it has been heretofore said by some Hunt-scrap Statists, That the Oath of Supremacy is taken in opposition to the Pope, to ex­clude the Supremacy usurped by that old Gentleman for many years. 'Tis 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, or Po­tentate, nor the Pope hath this Power: The other Positive, by which the Subject of this Power is specified. The Kings Highness is the only Supreme Governour of this Realm, as in all Spiritual things and Causes, so like­wise in Temporal matters: Both Ecclesi­astical and Civil Supremacy are in this Oath asserted to be in the King. It was not thought sufficient to tell who was not Su­preme, but to declare also who was.

So that now (Sir) you may perceive that by our known Laws our King is Invested with such a Supremacy as excludes both Pope and People, from having any Power, Jurisdiction, or Authority over him; And if so, then certainly we may conclude that he who has Vested in him the Sovereign Power, has also Vitae ac necis Authoritatem, the sole power of Life and Death, to save or destroy, as well to pardon as to punish Offenders.

Next come I to consider what Offences the King (as Supreme Governour of this Realm) can pardon or remit, and what he cannot as to Temporal matters.

In the first place I shall shew you what things the King cannot pardon, according to the Laws of England; as for example,

In an Appeal of Death, 11 R. 2. Chr. 17. 2 R. 3.8. Co. 3. Inst. f. 237. Robbery, Rape, &c. the King cannot pardon the Defendant, for the Appeal is the Suit of the Party, to have Revenge by Death; and whether the Defendant be attainted by Judgment, &c. or by Outlawry, the Kings Pardon shall not dis­charge the Defendant.

So in an Attaint by A. against the Party, 13 E. 4, 5. a. Co. 3. Inst. 237. and the Petit Jury against the party to have Restitution; this the King cannot pardon.

So the King cannot pardon Nuzances, Co. 3. Inst. 237. c. 20. 2 part Dewell. v. Saunders. Davis Rep 75. a. b. Houghans Rep. Tho­mas v. Sor­rel. that are (not transient but) continuing, as a Nuzance in Viâ Regiâ, that still con­tinues and is not ended, until removed; and so of a Water-course diverted, or Bridge broken down, they cannot be pardoned, so as to acquit the Nuzance-maker, for Com­mitting them.

So a Mayor of a Town, Vanghans Rep. Edw. Thomas. v. Sorrel. or other Toll­taker, who is penally bound to provide the Market-Measures, and doth not, cannot be pardoned by the King, because the fault still continues.

So if one be bound in a Recognizance to the King, 1 H. 7.10. 11 H. 7.12. Co. 3. Inst. 238. to keep the Peace against ano­ther by name, and generally all other Sub­jects of the King; In this Case before the peace be broken, the King cannot pardon or release the Recognizance, although it be made only to him, because it is for the be­nefit, and safety of his Subjects.

So after an Action popular be brought, 1 H. 7.3. a. Co. 3. Inst. 194, 195, 238. Tam pro Domino Rege quam pro seipso, accor­ding to any statute, the King cannot dis­charge the Informers part, because by bring­ing of the Action, the Party hath an In­terest therein.

Come I now (Sir) to demonstrate what Offences the King can pardon by the Law of England.

If a Man Arrested for Felony, Co. 3. Inst. 2 [...]7. Hobarts Reports Cudding­ton v. Wil­kins f. 82. break Pri­son, he loses his Battel, but if the King par­don that breaking of Prison, the Defendant shall be restored to the Battel, and the Coun­terplea taken away.

So in divers cases at the Suit of the Par­ty, when the Defendant either by the Com­mon Law, or by any Statute (besides the re­stitution or damage of the Party, Plaintiff) is thereby also to have exemplary punish­ment, [Page 10]the King may pardon the same; as first, for instance at the Common-Law.

In an Attaint by A, against the party and the Petit Jury; Co. 3. Inst. 237. against the party to have restitution, this (as is said before) the King may not pardon: Against the Petit Jury, by the Common-Law, ‘That they should lose Liberam Legem, their Wives and Children cast out of their Houses; their Houses wasted, their Trees prostrated, their Meadows plough­ed up, their Goods and Chattels seized, and their Bodies taken,’ This the King may par­don; because it is a punishment, exempla­ry to deter others, and tendeth not to the restitution or satisfaction of the Plaintiff.

Now to offer Instances upon Statute-Law. The Defendant in an Appeal of Murder, Co. lib. 5. f. 50. Bug­gins Case. Co. 3. Inst. 237. Hobarts Rep. f. 294. Seale v. Williams. upon Not Guilty pleaded, was found Guilty of Man-slaughter: And it was resolved by the Judges upon Conference be­twixt them, That the Queen may pardon the burning of the Hand, for that is no part of the Judgment at the Suit of the Party Plaintiff in the Appeal, but it is a collateral, and ex­emplary punishment inflicted by the Statute of 4 H. 7. c. 13.

So upon the Statute of Westm. Co. 3. Inst. f. 171, 237. 2. c. 25. [Page 11]that giveth two years Imprisonment, in a Ravishment of Ward, the King may pardon the said corporal punishment of Imprison­ment.

So upon the Statute of Westm. c. 20. 15 Eliz. Dyer 323. 9 Eliz. Dyer 269. Co. 2. Inst. 200. De Malefactoribus in parcis, the Damages con­cern the Plaintiff, and therefore the Kings pardon cannot dispense with them; but the Ransome, the finding of Surety, and the for­juring the Realm, are punishments exempla­ry, and concern the King, and therefore he may pardon the same.

So there is a Clause in the Statute of 5 Eliz. c. 14. 15 Eliz. Dyer 322. Taverners Case, Co. 3. Inst. 171. That the Plaintiff shall not release nor discontinue the punishment, &c. but only Costs and Damages: and yet it was resolved, that the Queen might pardon the corporal punishment, that doth trench to common example.

So before any Action popular brought, 1 H. 7.3. Co. 3. Inst. 194, 195, 238. 37 H. 6.4. the King may discharge the whole, because the Informer cannot bring an Action or In­formation originally for his part only, but must pursue the Statute.

So the breaking the Assize of Bread and Ale, the forestalling the Market, Ingrossing, Vaughans Reports, Edward Thomas v. Sorrel. Regrating, or the like, which continue not, [Page 12]but are over as soon as done, until done de novo may be pardoned by the King; so as the Offender shall not be Impleaded for them, otherwise than by persons that have received particular damage, which the King cannot remit.

To conclude; Vaughans Reports, Edward Thomas v. Sorrel. Although the King can­not acquit Nuzance-Makers for committing Nuzances, yet the Fine or punishment im­posed for the doing them, may be pardoned by the King.

Thus (Sir) having given you a true ex­tent and latitude of his Majesties pardon­ing Power, that is to say, what the King may, and what he cannot pardon, relating to matters Temporal, I come to the next particular proposed in the beginning, And that was to shew, who ought to be Judge and Interpreter of Pardons granted by the King, as to the validity or invalidity of them, when pleaded in the 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 [Page 13]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 [Page 14]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 [Page 15]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 'tis 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 [Page 16]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.

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 [Page 18]exhibited in the House of Lords, makes the doubt, which I shall endeavour thus to clear.

The Commons, 'tis 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 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. [Page 19]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 [Page 20]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 [Page 21]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, 'tis 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 [Page 22]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 [Page 23]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.

The Award of the Court that is given thereupon, is very remarkable, viz.

Sir Edward Coke upon this same Record comments thus;

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 [Page 26]in Gravesend's Case be valid in Law (as it is, 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 Common­wealth; 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 [Page 28]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, [Page 29]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 [Page 30]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 [Page 33]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;

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: