effectual as before. But when judgment, pronounced upon conviction, is falfified or reversed, all former proceedings are abfolutely fet afide, and the party stands as if he had never been at all accused; restored in his credit, his capacity, his blood, and his eftates with regard to which laft, though they be granted. away by the crown, yet the owner may enter upon the grantee,. with as little ceremony as he might enter upon a disseisord. But he still remains liable to another prosecution for the same offence: for, the first being erroneous, he never was in jeopardy thereby d 2 Hawk. P. C. 462. CHAPTER THE THIRTY FIRST. OF REPRIEVE, AND PARDON. T1 HE only other remaining ways of avoiding the execution of the judgment are by a reprieve, or a pardon; whereof the former is temporary only, the latter permanent. I. A REPRIEVE, from reprendre, to take back, is the withdrawing of a sentence for an interval of time; whereby the execution is fufpended. This may be, first, ex arbitrio judicis; either before or after judgment: as, where the judge is not satisfied with the verdict, or the evidence is fufpicious, or the indictment is infufficient, or he is doubtful whether the offence be within clergy; or fometimes if it be a small felony, or any favourable circumstances appear in the criminal's character, in order to give room to apply to the crown for either an absolute or conditional pardon. These arbitrary reprieves may be granted or taken off by the justices of gaol delivery, although their feffion be finished, and their commiffion expired: but this rather by common usage, than of strict righta. REPRIEVES may alfo be ex neceffitate legis: as, where a woman is capitally convicted, and pleads her pregnancy; though this is no cause to stay the judgment, yet it is to refpite the execution till she be delivered. This is a mercy dictated by the 2 Hal. P. C. 412. Aaa 2 a law 66 law of nature, in favorem prolis; and therefore no part of the bloody proceedings, in the reign of queen Mary, hath been more justly detested than the cruelty, that was exercised in the island of Guernsey, of burning a woman big with child: and, when through the violence of the flames the infant sprang forth at the fake, and was preferved by the bystanders, after fome deliberation of the priests who affisted at the sacrifice, they cast it again into the fire as a young heretic. A barbarity which they never learned from the laws of antient Rome; which direct, with the fame humanity as our own, quod praegnantis "mulieris damnatae poena differatur, quoad pariat :" which doctrine has also prevailed in England, as early as the first memorials of our law will reach. In case this plea be made in stay of execution, the judge must direct a jury of twelve matrons or discreet women to enquire the fact and if they bring in their verdict quick with child (for barely, with child, unless it be alive in the womb, is not sufficient) execution shall be staid generally till the next feffion; and fo from feffion to feffion, till either she is delivered, or proves by the course of nature not to have been with child at all. But if she once hath had the benefit of this reprieve, and been delivered, and afterwards becomes pregnant again, the shall not be intitled to the benefit of a farther refpite for that cause. For the may now be executed before the child is quick in the womb; and shall not, by her own incontinence, evade the sentence of justice. g ANOTHER cause of regular reprieve is, if the offender become non compos, between the judgment and the award of execution : for regularly, as was formerly observed, though a man be compas when he commits a capital crime, yet if he becomes non compos after, he shall not be indicted; if after indictment, he shall not be convicted; if after conviction, he shall not receive judgment; if after judgment, he shall not be ordered for exe cution for "furiofus folo furore punitur," and the law knows not but he might have offered some reason, if in his senses, to have stayed these refpective proceedings. It is therefore an invariable rule, when any time intervenes between the attainder and the award of execution, to demand of the prisoner what he hath to allege, why execution should not be awarded against him: and, if he appears to be infane, the judge in his difcretion may and ought to reprieve him. Or, he may plead in bar of execution; which plea may be either pregnancy, the king's pardon, an act of grace, or diverfity of perfon, viz. that he is not the same that was attainted, and the like. In this last case a jury shall be impanelled to try this collateral iffue, namely, the identity of his perfon; and not whether guilty or innocent; for that has been decided before. And in these collateral iffues the trial shall be inftanter, and no time allowed the prisoner to make his defence or produce his witneffes, unless he will make oath that he is not the perfon attainted: neither fhall any peremptory challenges of the jury be allowed the prisoner; though formerly fuch challenges were held to be allowable, whenever a man's life was in question'. II. IF neither pregnancy, infanity, non-identity, nor other plea will avail to avoid the judgment, and stay the execution confequent thereupon, the last and surest resort is in the king's most gracious pardon; the granting of which is the most amiable prerogative of the crown. Laws (fays an able writer) cannot be framed on principles of compaffion to guilt: yet juftice, by the constitution of England, is bound to be adminiftred in mercy this is promised by the king in his coronation oath, and it is that act of his government, which is the most personal, and most entirely his own ". The king himself condemns no man; that rugged task he leaves to his courts of justice: the great operation of his fceptre is mercy. His power of par : doning was faid by our Saxon ancestors" to be derived a lege fuae dignitatis: and it is declared in parliament, by statute 27 Hen. VIII. c. 24. that no other person hath power to pardon or remit any treason or felonies whatsoever; but that the king hath the whole and fole power thereof, united and knit to the imperial crown of this realm. THIS is indeed one of the great advantages of monarchy in general, above any other form of government; that there is a magistrate, who has it in his power to extend mercy, wherever he thinks it is deferved: holding a court of equity in his own breast, to soften the rigour of the general law, in fuch criminal cafes as merit an exemption from punishment. Pardons (according to fome theorists) should be excluded in a perfect legislation, where punishments are mild but certain: for that the clemency of the prince seems a tacit disapprobation of the laws. But the exclufion of pardons must neceffarily introduce a very dangerous power in the judge or jury, that of conftruing the criminal law by the spirit instead of the letter P; or else it must be holden, what no man will seriously avow, that the fituation and circumftances of the offender (though they alter not the effence of the crime) ought to make no distinction in the punishment. In democracies, however, this power of pardon can never subsist; for there nothing higher is acknowleged than the magistrate who administers the laws and it would be impolitic for the power of judging and of pardoning to center in one and the same perfon. This (as the president Montefquieu observes ) would oblige him very often to contradict himself, to make and to unmake his decifions: it would tend to confound all ideas of right among the mass of the people; as they would find it difficult to tell, whether a prisoner were discharged by his innocence, or obtained a pardon through favour. In Holland therefore, if there be no ftadtholder, there is no power of pardoning lodged in any other member of the ftate. But in monarchies the king acts in LL. Edw. Conf. c. 18. P Ibid. ch. 4. a fupe |