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 [Page 2] 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,Ll. Canu­ti. 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,Ll. Ed­wardi Confes­sor▪ p. 19. timidus mor­tis [Page 3] 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,Ll. H. 1. 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,Rot. Claus. 5 E. 2. in­dorso, m. 15. 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 [Page 4] 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,Mat. Pa­ris. 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.

[Page 5] In the fiftieth year of the Reign of King Edward the third,Rot. part. 50 E. 3. 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;Rot. part. 51 E. 3. 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,Rot. Claus. 51 E. 3. 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,Rot. part. 1 H. 4. the King in the Case of the Duke of Albemarle and others, declared in [Page 6] 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.

[Page 7] 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,Rot. part. 15 E. 3. Lords, and Commons hum­bling himself before the King Lords and Commons; desired that where he was de­famed through the Realm he might be lar­raigned before his Peers in open Parliamenti unto which the King answered, that He would attend the Common affairs, and af­terward hear others.

5 H. 4. The King at the request of the Commons;Rot. part. 5 H. 4. 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, Rot. part. 9. H. 4. and re­quired Judgement against him; which Bill was received and the said William Wide­combe [Page 8] 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,Rot. part. 38 H. 6. 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 28th year of the Reign of King Henry the 6th 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.Rot. part. 28 H. 6.

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 [Page 9] 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 18th 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 2d 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 [Page 10] 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 [Page 11] 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 Pardons 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 [Page 12] the deposing of King Richard the 2d. 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 [Page 13] 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, 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 [Page 14] 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 [Page 15] 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 en [...]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 by­blow 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.

[Page 16] 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 [Page 17] 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 Pardons 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 Pardons 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 Pardons 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 [Page 18] 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 [Page 19] 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 understanding thereof, the long and very long approved usages [Page 20] of the Nation, and Oaths of Allegiance and Supremacy of those that would now not only deny but be above it.

And would make the King, by some scattered or distorted parts of that Answer, mangled and torn from the whole context and purpose of it, to give away those un­doubted Rights of his Crown, for which, and the preservation of the Liberties of His People, he died a Martyr; the Author and his Party endeavouring all they can to translate the Assent of the Commons required in the levying of Money into that of the power of pardoning, and jumbling the Words and Sense of that Royal Answer, ce­ments and puts together others of their own to fortifie and make out their unjust purposes, omitting every thing that might be understood against them, or give any di­sturbance thereunto.

And with this resolution the Author pro­ceedeth to do as well as he can, and saith:

After the enumeration of which, and other His Prerogatives, His said Majesty adds thus; Again (as if it related to the matter of pardoning which it doth not at all, but only and properly to the levying of [Page 21] Money,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. wherein that Misinterpreter can afford to leave out His said Majesties Pa­renthesis (which is the Sinews as well of Peace as War) that the Prince may not make use of this high and perpetual Power to the hurt of those for whose good he hath it, and make use of the Name of Publick Necessity (which clearly evidenceth that his late Ma­jesty thereby only intended that part of his Answer to relate to the levying of Money) for the gain of his private Favorites and Followers to the detriment of his People.

Whither being come, our Man of Art or putter of his Matters together, finds some words which will not at all serve his turn inclosed in a Royal Parenthesis of his late Majesty, viz. (An excellent Conserver of Liberty, but never intended for any share in Government, or the choosing of them that should govern) but looked like a deep and dangerous Ditch which might Sowse him over head and ears, if not drown him and spoil all his inventions, and therefore well bethinks himself, retires a little, begins at An excellent Conserver of Liberty, makes that plural, adds, &c. which is not in the Original, fetches his seeze and leaps quite [Page 22] over all the rest of the Parenthesis, as being a Noli me tangere, dangerous words and of evil consequence, and having got over go­eth on until he came to some just and con­siderable expostulations of his late Majesty, and then as if he had been in some Lincoln­shire Fens and Marshes, is again enforced to leap until he come to, Therefore the Power legally placed in both Houses, is more than sufficient to prevent and restrain the Power of Tyranny.

But not liking the subsequent words of his late Majesty, viz. And without the Power which is now asked from Vs, we shall not be able to discharge that Trust which is the end of Monarchy, since that would be a total subversi­on of the Fundamental Laws, and that excellent Constitution of this Kingdom, which hath made this Nation for many years both famous and hap­py to a great degree of envy, is glad to take his leave with an, &c. and meddle no more with such Edge-Tools, wherewith that Royal Answer was abundantly furnished.

But looks back and betakes himself to an Argument framed out of some Melancho­lick or Feverish Fears and Jealousies, that until the Commons of England have right [Page 23] done unto them against that Plea of Pardon, they may justly apprehend that the whole Justice of the Kingdom in the Case of the five Lords, may be obstructed and defeated by Pardons of a like nature.

As if the pardoning of one must of ne­cessity amount to many, or all, in offences of a different nature committed at several times by several persons (which is yet to be learned) and the Justice of the Nation which hath been safe and flourished for ma­ny Ages, notwithstanding some necessary Pardons granted by our Princes, can be ob­structed or defeated in a well constituted Government under our Kings and Laws; so it may everlastingly be wondred upon what such jealousies should now be founded, or by what Law or Reason to be satisfied, if it shall thus be suffered to run wild or mad.

For Canutus in his Laws ordained that there should be in all Punishments a mode­rata misericordia, Ll. Ca­nusi. and that there should be a misericordia in judicio exhibenda, which all our Laws, as well those in the Saxon and Danish times as since, have ever intended, and it was wont to be a parcel of good [Page 24] Divinity that Gods Mercy is over all his Works, who not seldom qualifies and abates the ri­gour of his Justice.

When Trissilian Chief Justice, and Bram­bre Major of London, were by Judgment of the Parliament of the Eleventh of King Richard the second, Hanged and Executed, the Duke of Ireland banished, some others not so much punished, and many of their Complices pardoned, the people that did not know how soon they might want Pardons for themselves, did not afflict themselves or their Sovereign with Complaints and Murmurings that all were not Hanged and put to the extremities of Punishment; nor was Richard Earl of Arundel, one of the fierce Appellants in that Matter, vexed at the pardoning of others,Rot parl. 21 R. 2. when he in a Revolu­tion and Storm of State was within ten years after glad to make use of a Pardon for himself.

King James pardoned Sir Walter Raw­leigh, the Lord Cobham, Sir Griffin Mark­ham with many others then guilty of Trea­son, and the Earl of Somerset and his Lady, for the Murder of Sir Thomas Overbury, without any commotion in the Brains of [Page 25] the rest of his Subjects, some of whom were much disturbed that he after caused Sir Walter Rawleigh to be executed for a se­cond offence upon the Score of the former, not at all pardoned, but reprieved or only respited.

And therefore whilest we cry out and won­der quantum mutantur tempora, may seek and never find what ever was or can be any ne­cessary cause or consequence that the five Lords accused of High Treason, and a de­sign of killing the King, will be sure to have a Pardon, if that the Pardon of the Earl of Danby, whose design must be un­derstood by all men rather to preserve him, shall be allowed.

Nor doth an Impeachment of the House of Commons virtually, or ever can from the first Constitution of it be proved or ap­pear to be the voice of every particular Sub­ject of the Kingdom; for if we may believe Mr. William Pryn, one of their greatest Champions, and the Records of the Nati­on and Parliaments, the Commons in Par­liament do not, or ever did Represent, or are Procurators for the Lords Spiritual and Temporal and their numerous Tenants [Page 26] and ancient Baronies, and those that hold or do now hold in Capite, nor for the many Tenants that should be of the Kings ancient Demesne and Revenues, nor for the Clergy, the multitude of Copyholders heretofore, as much as the fourth part of the Kingdom, neither the great number of Lease-holders, Cottagers,Pryns 4 part of his Regi­ster of Parlia­ment Writs. &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 [Page 27] 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 [Page 28] 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.

[Page 29] 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 [Page 30] 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,Prins Animad. upon Cokes 4 Instit. 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.

[Page 31] 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 [Page 32] 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.

[Page 33] 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.

[Page 34] 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 [Page 35] 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 [Page 36] 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,Rot. parl. 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.

[Page 37] 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, Cokes 4 part of the Insti­tutes. 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 [Page 38] 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 the Law and reasonable Customs of England, Cokes 4 part of the Insti­tutes Tit. Parlia­ment. followed by the mo­dern practice, that the giving any Judg­ment in Parliament doth not make is a Ses­sion, and that such Bills as passed in either or both Houses, and had no Royal Assent [Page 39] unto them, must at the next Assembly begin again; for every Session of Parliament is in Law (where any Bill hath gained the Royal Assent, or any Record upon a Writ of Error brought in the House of Peers hath been certified) is and hath been accompted to have been a Session.

And although some of this later quarrelling Age have Espoused an Opinion, too much insisted upon, that an Impeachment brought by the House of Commons against any one makes the supposed Offence, until it be Tryed, unpardonable.

A Reason whereof is undertaken to be gi­ven, because that in all Ages it hath been an undoubted Right of the Commons to Impeach before the Lords any Subject for Treason or any Crime whatsoever.

And the Reason of that Reason is (sup­posed to be) because great Offences com­plained of in Parliament, are most effectual­ly determined in Parliament.

Wherein they that are of that Opinion may be intreated to take into their more se­rious consideration;

That there neither is, nor ever was, any House [Page 40] or Members of Commons in Parliament, before the Imprisonment of King H. 3. by a Rebellious part of his Subjects, in the For­ty ninth year of his Reign, or any kind of fair or just evidence for it.

Factious designing and fond conjectures being not amongst good Patriots, or the Sons of Wisdom ever accompted to be a sufficient, or any evidence.

Nor was the House of Lords from its first and more ancient original, intituled under their King to a Judicative Power to their Kings, in common or ordinary Affairs, but in arduis, and not in all things of that na­ture, but in quibusdam, as the King should propose and desire their advice, concerning the Kingdom and Church, in matters of Treason or publick concernments, and did understand themselves, and that high and honourable Court, to be so much forbid by Law, ancient usage and custom to inter­meddle with petty or small Crimes or Mat­ters, as our Kings have ever since the sixth year of the Reign of King Edward the first,Rot. parl. 7 E. 1. ordained some part of the Honourable House of Peers, to be Receivers and Tryers of Petitions of the Members of the House [Page 41] of Commons themselves and others, direct­ed to the King, to admit what they found could have no remedy in the ordinary Courts of Justice, and reject such as were properly elsewhere to be determined, with an Indorsement of non est Petitio Parlia­menti.

Which may well be believed to have ta­ken much of its reason and ground from a Law made by King Canutus who began his Reign about the year of our Lord,Ll. Ca­nuti, 16. 1016. Nemo de injuriis alterius Regi queratur nisi quidem in Centuria Justitiam consequi & impetrare non poterit.

For certainly, if it should be otherwise, the reason and foundation of that highest Court would not be as it hath been hitherto, always understood to be with a Cognisance only de quibusdam arduis, matters of a very high nature concerning the King and the Church.

But it must have silenced all other Courts and Jurisdictions, and have been a continual Parliament, a Goal-delivery or an intermedler in Matters as low as Court Leets, or Baron and County Courts, and a Pye-Powder Court.

And the words of any Crime whatsoever [Page 42] do not properly signifie great Offences, and that all great Offences do concern the Par­liament, is without a Key to unlock the Secret not at all intelligible, when it was never in­stituted or made to be a Court for common or ordinary Criminals.

For the House of Commons were never wont to take more upon them than to be Petitioners and Assenters unto such things as the King by the advice of His Lords Spi­ritual and Temporal should ordain, and o­bey, and endeavour to perform them.

And an Impeachment of the House of Commons cannot be said to be in the Name, or on the behalf of all the People of England, for that they never did or can represent the one half of them, and if they will be pleased to examine the Writs and Commissions granted by our Kings for their Election, and the purpose of the Peoples E­lection of them to be their Representatives, Substitutes or Procurators, it will not ex­tend to accuse Criminals, for that apper­tained to the King himself and His Laws, care of Justice and the Publick; the Com­mon People had their Inferiour Courts and Grand Juries, Assises and Goal-Deliveries to [Page 43] dispatch such Affairs without immediately troubling Him or His Parliament, and the tenour and purpose of their Commissions and Elections to Parliament, is no more than ad faciendum & consentiendum iis to obey and perform such things as the King, by the advice of His Lords Spiritual and Temporal, should in Parliament ordain.

For although where the Wife or Chil­dren of a Man murdered shall bring an Ap­peal, the King is debarred from giving a Pardon,Ll. Inae, 6 because by our Saxon Laws derived from the Laws of God, they are not to be disturbed in that satisfaction which they ought to have by the loss or death of the Man murdered.

Yet the publick Justice will not be satis­fied without the party offending be Arraign­ed and brought to Judgment for it, if the party that hath right to Appeal should sur­cease or be bought off, so as an Appeal may be brought after or before the King hath Indicted, and an auter foitz acquit in the one case will not prejudice in the other, and where the Matter of Fact comes to be af­terwards fully proved, and the Appeal of a Wife or Children of a Bastard called filius [Page 44] populi, quia nullius filius, where only the King is Heir, cannot vacate or supersede an Indictment of the Kings.

Neither is an Appeal upon a Crime or in criminal Matters, in the first instance to be at all pursued in Parliament, by the Statute made in the First year of the Reign of King H. 4. the words whereof are, 1 H. 4. ca. 14. Item for many great inconveniencies and mischiefs that often have happened by many Appeals made within the Realm of England (to the great afflictions and calamities of the Nation, as it after­wards happened by the Lancastrian Plots and Designs in that mischievous Appeal in Anno 11 of King Richard the Second) be­fore this time; It is ordained and stablished from henceforth, That all the Appeals to be made of things done out of the Realm, shall be tryed and determined before the Constable and Marshal of England for the time being; And moreover it is accorded and assented, That no Appeals be from henceforth made, or in any wise pursued in Parliament in any time to come.

And therefore that allegation that the House of Peers cannot reject the Impeach­ment of the Commons, because that Suit or Complaint of the Commons can be de­termined [Page 45] no where else, will want a better foundation (an Impeachment of the House of Commons, in the Name of all the Peo­ple being no other than an Appeal to the King in Parliament.)

And the Suit of such as might be Appel­lants in another place (being there expresly prohibited) cannot be supposed to be the concern or interest of all the People deser­ving or requiring satisfaction, or especially provided for by Law to have satisfaction, unless it could by any probability or soundness of Judgment be concluded that all the People of England, besides Wives, Children or near Kindred and Re­lations (the necessity of publick Justice and deterring Examples) are or should be concerned in such a never to be fancied Appeal of the People. And it will be very hard to prove that one or a few are all the People of England, or if they could be so imagined, are to be more concerned than the King, who is sworn to do Justice, unless they would claim and prove a Sovereignty and to be sworn to do Justice, which though they had once by a villanous Re­bellion attacked, until Oliver Cromwel their [Page 46] Man of Sin, cheated them of it; for God would never allow them any such power or priviledge, or any Title to the Jesuits Do­ctrine, which some of our Protestant Dissen­ters, their modern Proselites, have learned of them, that the King although he be singulis major, is minor universis.

And it is no denial of Justice in the House of Peers to deny the receiving of an Impeachment from the House of Com­mons, when they cannot understand any just cause or reason to receive it, and the Records, Rolls, Petitions and Orders of Par­liament will inform those that will be at the pains to be rightly and truly directed by them, that Petitions in Parliament have been adjourned, modified or denied; and that in the Common or Inferior Courts of Ju­stice, Writs and Process may sometimes be denied, superseded or altered according to the Rules of Justice, or the circumstances thereof. And our Records can witness, that Plaintiffs have petitioned Courts of Justice recedere a brevi & impetrare aliud.

And it cannot be said that the King doth denegare Justitiam, when he would bind them unto their ancient, legal, well experi­mented [Page 47] forms of seeking it in the pursuing their Rights and Remedies, and hinders them in nothing but seeking to hurt others and destroy themselves.

For Justice no otherwise denied should not be termed Arbitrary, until there can be some solid reason, proof or evidence for it.

When it is rather to be believed, that if the Factious Vulgar Rabble might have their Wills, they would never be content or leave their fooling until they may obtain an unbounded liberty of tumbling and tos­sing the Government into as many several Forms and Methods, as there be days in the year, and no smaller variety of Religi­ons.

And they must be little conversant with our Records, that have not understood that the Commons have many times received just denials to their Petitions, and that some have not seldom wanted the foundations of Reason or Justice.

That many of their Petitions have adop­ted the Concerns and Interests of others, that were either Strangers unto them, or the De­signs of some of the grand Nobility who [Page 48] thought them as necessary to their purposes as Wind, Tide, and Sails are to the speed­ing of a Ship into the Port or Landing-places of their Designs.

For upon their exhibiting in a Parliament in the 28 year of the Reign of King Henry the Sixth,Rot. parl. 28 H. 6. n. 16, 17. abundance of Articles of High Treason, and Misdemeanours, against Wil­liam de la Poole, Duke of Suffolk; one whereof was that he had sold the Realm of England to the French King, who was prepa­ring to invade it.

When they did require the King and House of Lords that the Duke (whom not long before they had recommended to the King to be rewarded for special services) might be committed Prisoner to the Tower of London, the Lords and Justices upon consulta­tion, thought it not reasonable unless some special Matter was objected against him.

Whereupon the said Duke not putting himself upon his Peerage, but with prote­station of his innocency, only submitting himself to the Kings mercy, who acquitting him from the Treason and many of the Misdemeanours▪ and for some or them by the advice of the Lords, only banished him [Page 49] for five years. And that thereupon when the Viscount Beaumont in the behalf of the Lords Spiritual and Temporal required that it might be Inrolled that the Judgment was by the Kings own Rule, & not by their Assent, and that neither they nor their Heirs should by this Example be barred of their Peerage.

No Protestation appears to have been made by any of the Lords Spiritual or Tem­poral for or on the behalf of the Commons.

Or by the Commons for themselves.

So as a different manner of doing Ju­stice can neither truly or rationally be said to be an absolute denial of Justice, and was never believed to be so by the Predecessors of the House of Commons in Parliament in our former Kings Reigns, when some hundreds of their Petitions in Parliament have been answered by, There is a Law already provi­ded, or let the old Law stand, or the King will provide a convenable or fitting remedy.

And is not likely if it were, as it is not to be, any Arbitrary Power, or any temptation or inducement thereunto, to produce any Rule or incouragement to the exercise of an Arbitrary Power in the Inferiour Courts, when there is none so weak in his Intel­lect, [Page 50] but may understand that different Courts have several Boundaries, Methods and Forms of Proceedings, and that the Kings extraordinary great Court and Coun­cel in His House of Peers although very just and unarbitrary in their procedures, is so al­ways ready to succour the Complaints of People, as it never willingly makes it self to be the cause of it.

And cannot misrepresent the House of Peers to the King and his People, in the Case of Mr. Fitz-Harris, or any others, when that honourable Assembly takes so much care as it doth to repress Arbitrary Power, and doth all it can to protect the whole Nation from it, and many of the House of Commons Impeachments have been disallowed by the King and his House of Peers in Parliament without any ground or cause of fear of Arbitrary Power, which can no where be so mischievously placed, as in the giddy multitude whose Impeach­ments would be worse than the Ostracisme at Athens, and so often overturn and tire all the wise men and good men in the Na­tion as there would be none but such as deserve not to be so stiled, to manage the [Page 51] Affairs of the Government, subordinate to their King and Sovereign.

To all which may be added, if the for­mer Presidents cited to assert the Kings Power of Pardoning aswell after an Im­peachment made by the Commons in Par­liament, as before and after an Impeachment received by the Lords in Parliament, or made both by the Lords and Commons in Par­liament, and after an Impeachment re­ceived by the Lords in Parliament, or made both by the Lords and Commons in Parlia­ment be not sufficient that of Hugh le Despen­ser, Son of Hugh le Despenser, the younger, a Lord of a great Estate, which is thus entred in the Parliament Roll of the fifth year of the Reign of King Edward the Third, ought sure­ly to satisfie, that the Laws and reasonable Customs of England will warrant it.

Anno 5 E. 3. Sir Eubule le Strange and eleven other Mainprisers, Rot. parl. 5 E. 3. n. 8. being to bring forth the Body of Hugh the Son of Hugh le Despen­ser the younger, saith the Record, A respon­dre au prochein Parlement & de ester an droit & affaire ce & de liu en conseil soit ordine & mesuerent le Corps le dit Hugh devant nostre Seigneur le Roi Countes Barons & autres [Page 52] Grantz en mesme le Parlement & monstrent les L'res Patents du Roi de Pardon al dit Hugh forisfacturam vite & membrorum sectam pacis homicidia roborias Felonias & omnes transgres­siones, &c. Dated 20 Martii anno primo Regni sui Et priant a n're Seigneur le Roi quil le vousist delivrer de las Mainprise & faire audit Hugh sa grace & n're Seigneur le Roi eiant regard a ses dites L'res & voilant ut­troier a la Priere le dit Mons'r Eble & autres Mainpernors avant dit & auxint de les Pre­latz qui prierent molt especialment pur lui si ad comande de sa grace sa delivrance. Et voet que ses Menpernors avant ditz & chescun d' eux soient dischargez de leur Mainprise & auxint & le dit Hugh soit quit & delivrers de Prisone & de garde yssint & si ho'me trove cause devers lui autre & nest uncore trove quil estoise au droit.

And the English Translator, or Abridger of the Parliament Records, hath observed that the old usage was, that when any per­son being in the Kings displeasure, was thereof acquitted by Tryal or Pardon, yet notwithstanding he was to put in twelve of his Peers to be his Sureties for his good Be­haviour at the Kings pleasure.

[Page 53] And may be accompanied by the Case of Richard Earl of Arundel in the 22 year of the Reign of King Richard the Second,22 R. 2. In the A­bridg­ment of the Par­liament Records in Eng­lish said to be done by Sir Robert Cotton. being Ap­pealed by the Lords Appellant, and they re­quiring the King, that such persons Appeal­ed, that were under Arrest, might come to their Tryal, it was commanded to Ralph, Lord Nevil, Constable of the Tower of Lon­don to bring forth the said Richard Earl of Arundel, then in his custody, whom the said Constable brought into the Parliament, at which time the Lords Appellants came al­so in their proper Persons. To the which Earl the Duke of Lancaster (who was then hatching the Treason which afterwards in Storms of State and Blood came to effect against the King) by the Kings Command­ment and Assent of the Lords declared the whole circumstances; after the reading and declaring whereof the Earl of Arundel, who in Anno 11 of that Kings Reign, had been one of the Appellants, together with Henry Earl of Derby son of the said Duke of Lan­caster, and afterwards the usurping King Henry the Fourth against Robert de Vere, Duke of Ireland and Earl of Oxford, and some other Ministers of State, under King [Page 54] Richard the Second, alledged that he had one Pardon granted in the Eleventh year of the Reign of King Richard the Second, and another Pardon granted but six years before that present time. And prays that they might be allowed.

To which the Duke answered, that for as much as they were unlawfully made, the present Parliament had revoked them.

And the said Earl therefore was willed to say further for himself at his peril; where­upon Sir Walter Clopton, Chief Justice, by the Kings Commandment declared to the said Earl, that if he said no other thing, the Law would adjudge him guilty of all the Actions against him.

The which Earl notwithstanding would say no other thing, but required allowance of his Pardons.

And thereupon the Lords Appellant in their proper Persons, desired that Judgment might be given against the said Earl as Con­vict of the Treason aforesaid.

Whereupon the Duke of Lancaster, by the Assent of the King, Bishops and Lords, adjudged the said Earl to be Convict of all the Articles aforesaid, and thereby a Tray­tor [Page 55] to the King and Realm, and that he should be hanged, drawn and quartered, and forfeit all his Lands in Fee or Fee-tail, as he had the nineteenth day of September, in the tenth year of the Kings Reign, toge­ther with all his Goods and Chattels. But for that the said Earl was come of noble Blood and House, the King pardoned the hanging, drawing and quartering, and granted that he should be beheaded; which was done accordingly.

But Anno 1 Hen. 4. the Commons do pray the reversal of that Judgment given against him,Rot. parl. 1 H. 4. n. 109. 111. and restoration of Thomas the Son and Heir of the said Richard Earl of Arundel.

Unto which the King answered, he hath shewed favour to Thomas now Earl, and to others, as doth appear.

The Commons do notwithstanding pray, that the Records touching the Inhe­ritance of the said Richard Earl of Arundel, late imbezelled, may be searched for and restored.

[Page 56] Unto which was answered, the King wil­leth.

And their noble Predecessors in that Ho­nourable House of Peers, the Lords Spiri­tual and Temporal in Parliament long be­fore that, videlicet, in the fifth year of the Reign of King Edward the Third, made no scruple or meet point or question in Law, whether the power of pardoning was valid and solely in the King after an Impeach­ment of the Lords in Parliament, when in the Case of Edmond Mortimer, the Son of Roger Mortimer Earl of March a Peer of great Nobility and Estate, the Prelats, Counts, Barons, & autres gentz du Parlement, did in full Parliament, as the Record it self will e­vidence, Petition the King to restore the said Edmond Mortimer to his Blood and E­state which were to remain unto him after the death of his said Father,Rot. parl. 5 E. 3. n. 16. to whom it was answered by the King in these words; Et sur ce nostre Seigneur le Roi chargea les ditz Prelats, Countes▪ & Barons en leur foies & ligeance queux ils lui devoient & de puis ce que le Piere nostre Seigneur le Roi que ore est [Page 57] estoit murdre per le dit Counte de la Marche & person procurement a ce quil avoit mesmes comdevant sa mort que eux eant regarda le Roi en tiel cas lui consilassent ce quil devoit faire de reson audit Esmon filz le dit Counte les queux Prelats, Countes, Barons & autres [...] avys & trete entre eux respondirent a nostre Seigneur [...] le Roi de Common assent que en regard a si hor­rible fait comme de murdre [...] de terre & lour Seig­neur lige quen faist unques me avoient devant en leur temps ne nes devant venir en le eyde de dieu quils ne scavoient uncore Juger ne con­seiller ceque serroit affaire en tiel cas.

Et sur ce prierent a nostre Seigneur le Roi quils poierent ent aver avisement tanque au pro­chein Parlement la quelle priere le Roi ottroia & sur ce prierent outre que nostre Seigneur le Roi feist au dit Esmon sa bone grace a quoi il respond quil lui voloit faire mes cella grace vendroit de lui mesmes.

Sir Thomas de Berkeley (who Sir William Dugdale in his Book of the Baronage of England, Rot. parl. 4 E. 3. n. 16. found and believes to have been [Page 58] a Baron) being called to account by the King, for the murder of his Father King Edward the Second, to whose custody at his Castle of Barkeley, he was committed, not claiming his Peerage, but pleading that he was at the same time sick almost to death at Bradely, some miles distant, and had committed the custody and care of the King unto Thomas de Gourney & William de Ocle ad eum salvo custodiendi, and was not guilty of the murder of the King or any ways assenting thereunto Et de illo posuit se super Patriam, had a Jury of twelve Knights sworn and impannelled in Parlia­ment who acquitted him thereof, but finding that he had committed the custody of the King to the aforesaid Thomas de Gour­nay & William de Ocle, and that the King extitit murderatus, a further day was given to the said Sir Thomas de Berkeley de audi­endo Judicio suo in prox. Parliamento, and he was in the interim committed to the cu­stody of Ralph de Nevil Steward of the Kings Houshold.

At which next Parliament Prierent les Prelatz▪ Rot. parl. 5 E▪ 3. Countes & Barons a nostre Seigneur [Page 59] le Roi on the behalf of the said Sir Thomas de Berkeley, that he would free him of his Bayl or Mainprize, whereupon the King charging the said Prelats, Counts and Ba­rons to give him their advice therein: Le quel priere fust ottroia & puis granta nostre Seigneur le Roi de rechef a leur re­queste que le dit Mons'r Thomas & ses Main­pernors fusseient delivres & discharges de lure mainprise & si estoit Jour donne a dit Thomas de estre en prochein Parlement, which proved to be a clear Dismission, for no more afterwards appeareth of that mat­ter.

Neither after a fierce Impeachment in the said Parliament of 21 R. 2. against Tho­mas Arundel Archbishop of Canterbury and Chancellor of England, of High Treason, upon which he was by that injuried Prince condemned and banished, when as the Re­cord saith, Les dits Countz prierent, au Roi ordenir tiel Jugement vers le dit Ercevesque come le cas demande & le Roi sur ceo Recorda en le dit Parlement que le dit Ercevesque avoit este devant lui en presence de certeines Seig­neurs & confessor que en la use de la dite Com­mission [Page 60] il sey mesprise & lui mist en la grace du Roi surquoi, the Judgment was given a­gainst the said Archbishop, that he should be banished and forfeit all his Lands, Goods and Estate, when in the first year of the Reign of the usurping King H. 4. that Arch­bishop not tarrying long in Exile, the minds of the Commons became so setled on the prevailing side, there was so small or no opposition made by them against him, as the Duke of York and Earl of Northumber­land, and others of the Blood of the said Archbishop of Canterbury did in Parliament pray the King that the said Archbishop might have his recovery against Roger Walden, for sundry Wasts and Spoils done by him in the Lands of the said Archbishoprick, which the King granted, and thanked them for their mo­tion.

The Bishop of Exeter Chancellor of Eng­land at the assembling of the Parliament, Rot. parl. 21 R. 2. taking his Text out of the Prophecy of Eze­kiel, Rexerit unus omnibus, alledging the power that ought to be in Soveraign Kings and Princes whereby to govern, and the Obedience in Subjects to obey, and that all [Page 61] alienations of his Kingly Priviledges and Prerogatives were reassumable and to be Re­pealed by his Coronation-Oath, Pour quoi le Roi ad fut assembler le Estatz de Parlement a cest faire pour estre enformer si ascun droitz de sa Corone soient sustretz ou amemuser a fin que par leur bon advis & discretion tiel remedie puisse estre mis que le Roi puisse esteer en sa li­bertie ou poir Comme ses Progenitors ont este devant lui & duissent de droit non obstante ascun ordinance au contraire & ainsi le Roi as Tener, Et les governera, whereupon the Commons made their Protestation, and prayed the King that it might be Inrolled, that it was not their intente ou volunte to Impeach or Accuse any Person in that Parlia­ment sans congie du Roi, And thereupon the Chancellor by the Kings command, like­wise declared, That Nostre Seigneur le Roi considerant coment plusieurs hautes offenses & mesfaits ont estre faitz par le People de son Roialme en contre leur ligeance & l' Estat nostre Seigneur le Roi & la loie de la terre devant ces heures dont son People estiet en grant perill & danger de leie & leur corps & biens & voullant sur ce de sa royalle benignite mon­stre & faire grace a son dit People a fyn quilz [Page 62] ayent le greindre corage & volonte de bien faire & de leure mieux porter devots le Roi en temps avenir si voet & grante de faire & ease & quiete & salvation de son dit People une generalle Pardon a ces liges forspries cer­taines pointz limitez par le samant la suite al partie forspris cyn quont persones queux plaira au Roi nomer & tour ceux qui serront Empecher en ce present Parlement & dit austre que le dit Roi voet que plein droit & Justice soyent faitz a Chas­cun de ses liges qui en violent complandre en cest Parlement & ad ordiner & assigner Receivers & Triers des Petitions en cest Parlement.

And did in pursuance thereof in full Par­liament excuse, the Duke of York, the Bishop of Worcester, Sir Richard le Scroop then li­ving, William late Archbishop of Canter­bury, Alexander late Archbishop of York, Thomas late Bishop of Exeter, and Michael late Abbot of Walton then being dead, of the Execution and intent of the Commis­sion made in the Tenth year of his Reign, as being assured of their Loyalty, and there­fore by Parliament restored them to their good Name.

[Page 63] And it is more than a little probable that the Prelates, Counts and Barons in that Honourable House of Peers in Parliament, did well understand that the King was a fit, and the only person to Petition un­to for that Pardon, Discharge or Dismissi­on amounting to a Pardon, and did not think it to be either legal or rational 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, Esthe [...] ca. 1, 3, 5, 8. 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 [Page 64] moderate them according to the Rules of a prudent and discerning mercy.

Which made the Goodness and Wis­dom of Solomon, 1 Reg. 3. 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.

[Page 65] 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, 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;Cokes Instit. 2. 315. 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 [Page 66] 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 [Page 67] 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 [Page 68] 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.’