into some offences and danger of Law by trespasses or felonies. Although the Law be positive and penall condemning the offenders, yet his Majestie may pardon them the trespasse or felony, and the punishment, fine or forfeiture thereupon, Quo ad interesse suum: but therein also the Law doth stay or restraine the Kings power, that he cannot by his pardon remit or give away Interesse partis: But that the party grieved or wronged, may and ought to have his action; And the son or wife may have and prosecute the Appeale, de morte patris or vi••i, and the King by no power Imperiall can take it from them.
The cases praeter legem, are some dispensative Proclamations or grants of experience, whether something be pro bono publico or not, as for importation or exportation of some or other forrein or native commodity, or the exercise or practise of some new invented Art, Science, or Mystery among the people, which having most commonly the specious shew of good, yet no sooner that it bee discovered to be hurtfull to the Common-wealth, or deragatory to the liberty or property of the Subject, or that it bring on any burden, tax, or charge, or doe secretly exhaust, or diminish the rightfull profits of any Trade, Mystery, or Science, before lawfully used, or belonging to any of the Kings Liege people, or Subjects, then the same is to be abhorred, condemned, and suppres∣sed, as an odious project, monopely, or unwarrantable thing. And the Rule and Reason of com∣mon Law, which is that In omnibus salus populi suprema Lex esto, hindereth that no regall, or Pre∣rogative power can uphold or maintaine it, though the case be praeter Legem, and not provided for by any Statute; or if it be provided for, and the King hath dispensed by a Non obstante.
The cases of example Contra Legem, are either when the King doth grant, Authorize, or per∣mit any thing whatsoever against the common Law of the Land, or the rule or reason thereof, such His Majesties grant by Letters Patents, Pr••clamations or other commands, or such licence or per∣mission cannot be, nor is of any orce, or can, or ought to stand or be used, practised, or suffered in this Land. And this is first to be understood of the common Law of this Land, in point of commutative justice, that concerneth the right and interest of every Subject, v••z. Ius personarum, rerum & actionum, of everyman, whereof the first is expressely preserved by the great charter of England, Nullus liber homo capietur, imprisonetur, &c. The second is secured to every man, by the Law of property, wherein it is said, Quod nostrum est, fine furto aut assensu nostro a nobis tolli non potest, upon which no Regall Power or Prerogative can trench. And the third, both by the words of the great Charter, Nulli negabimus, &c. justitiam, and by the Statute Ordaining that every man should enjoy the benefit of the Law, and Courts of Iustice for his Free-hold Lands, goods or Chattels. And that neither the great Seale, nor Privie Seale, should hinder the due course of Law.
Secondly, in point of distributive justice, either in paena or prae mio, for good or evill behavi∣our in the publike conversation or actions, of one towards another. And in this part of common Law of the Land, Malum in se is most concerned, that vice should be punished, and ought not to be spared by any Regall power, leave, or licence in any case whatsoever, for it were improper that the King (being Gods Vicegerent) might or ever should connive at, or leave unpunished, any crime or offence, contrary to the Commandements of God, or the Law of Nature, For His Ma∣jestie is said to be like God, Dixi Dii estis, and the Schoole men say, Deus non potest malum agere quia non vult, & non vult, quod non potest: according to which the Lawyers say, Id possumus quod de jure possumus, and that Le Rey ne poit faire tort. And for the malum prohibitum, by Statutes or Ordinances of Parliament, His Majesty cannot, nor will goe against them, but in Tu∣tiorem partem, to pardon where there is hope of amendment. Otherwise see the Statute of North∣ampton, wherein some odious crimes are denyed the King to pardon. Wherefore so it is, that if the King, through that naturall propensity of King (spoken of by God Himselfe) doe more than he should doe toward the people, or that by his omission some enormities are crept in, then it be∣hoveth him to call together his great Councell in Parliament, to advise with them for his own bet∣ter direction, and for Reformation of abuses, and corrections of such as have abused and misled His Majesty, whereupon the fourth question ensueth.