ง Secondly, a judgment may be reversed by writ of error: which lies from all inferior criminal jurisdictions to the court of king's bench, and from the king's bench to the house of peers; and may be brought for notorious mistakes in the judgment or other parts of the record: as where a man is found guilty of perjury and receives the judgment of felony, or for other less palpable errors: such as any irregularity, omission, or want of form in the process of outlawry, or proclamations; the want of a proper addition to the defendant's name, according to the statute of additions; for not properly naming the sheriff or other officer of the court, or not duly describing where his county court was held; for laying an offence committed in the time of the late king, to be done against the peace of the present; [392] and for other similar causes, which (though allowed out of tender ness to life and liberty) are not much to the credit or advancement of the national justice. These writs of error, to reverse judgments in case of misdemeanors, are not to be allowed of course, but on sufficient probable cause shewn to the attorney-general; and then they are understood to be grantable of common right, and ex debito justitiae. But writs of error to reverse attainders in capital cases are only allowed ex gratia; and not without express warrant under the king's sign manual, or at least by the consent of the attorney-general. (c) These therefore can rarely be brought by the party himself, especially where he is attainted for an offence against the state but they may be brought by his heir, or executor, after his death, in more favourable times; which may be some consolation to his family. But the easier and more effectual way, is, Lastly, to reverse the attainder by act of parliament. This may be and hath been frequently done, upon motives of compassion, or perhaps from the zeal of the times, after a sudden revolution in the government, without examining too closely into the truth or validity of the errors assigned. And sometimes, though the crime be universally acknowledged and confessed, yet the merits of the criminal's family shall after his death obtain a restitution in blood, honours, and estate, or some, or one of them, by act of parliament; which (so far as it extends) has all the effects of reversing the attainder, without casting any reflections upon the justice of the preceding sentence. The effect of falsifying, or reversing, an outlawry, is that the party shall be in the same plight as if he had appeared upon the capias: and, if it be before plea pleaded, he shall be put to plead to the indictment; if after conviction, he shall receive the sentence of the law; for all the other proceedings, except only the process of outlawry for his non-ap[393] pearance, remain good and effectual as before. But when judg ment pronounced upon conviction, is falsified or reversed, all former proceedings are absolutely set aside, and the party stands as if he never had been accused; restored in his credit, his capacity, his blood, and his estates with regard to which last, though they may be granted away by the crown, yet the owner may enter upon the grantee, with as little cere. mony as he might enter upon a disseisor. (d) But he still remains liable to another prosecution for the same offence; for the first being erroneous, he never was in jeopardy thereby. (2) See the history and nature of writs of error in criminal cases stated by lord Mansfield with great ability and clearness, in 4 Burr. 2550, 1, 2.; as to the mode and practice of obtaining the writ, see 1 Chit. C. L. 2 ed. 749 to 751. (3) This was done with respect to the forfeited estates in Scotland, by statute 24 Geo. III. c. 57. CHAP. XXXI. OF REPRIEVE AND PARDON. THE 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 suspended. 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 suspicious, or the indictment is insufficient, or he is doubtful whether the offence be within clergy; or sometimes 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 sessions be finished, and their commission expired: but this rather by common usage, than of strict right. (a) Reprieves may also be ex necessitate 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 respite the execution till she be [395] delivered. This is a mercy dictated by the 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, that 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 stake, and was preserved by the by-standers, after some deliberation of the priests who assisted at the sacrifice, they cast it again into the fire as a young heretic. (b) A barbarity which they never learned from the laws of ancient Rome; which direct, (c) with the same 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. (d) In case this plea be made in stay of execution, the judge must direct a jury of twelve matrons or discreet women to inquire 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 session; and so from session to session, 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, she shall not be entitled to the benefit of a farther respite for that cause. (e) For she may now be executed before the child is quick in the womb; and shall not, by her own incontinence, evade the sentence of justice." a 2 Hal. P. C. 412, b Fox, Acts and Mon. c Ff. 48. 19. 3. d Flet. . 1. c. 38. (1) As to reprieves in general, see 1 Hale, 568 to 370. 2 Hale 412 to 414. Hawk. b. 2. c. 51. s. 8, 9, 10. Williams J. Execution and Reprieve. 1 Chit. C. L. 757 to 762. In addition to the reprieves mentioned by the learned commentator is that ex mandatio regis, or from the mere pleasure of the crown, expressed in any way to the court by whom the execution is to be awarded. 2 Hale, 412. 1 Hale, 368. Hawk. b. 2. c. 51. s. 8. (2) It is usual for the clerk of assize to ask women, who receive sentence of death, if they have Another cause of regular reprieve is, if the offender becomes non compos, between the judgment and the award of execution: (ƒ) for regularly, as was formerly (g) observed, though a man be compos 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 execution: for, "furiosus solo furore punitur," and [396] the law knows not but he might have offered some reason, if in his senses, to have stayed these respective 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 insane, the judge in his discretion may and ought to reprieve him.3 Or, the party man plead in bar of execution; which plea may be either pregnancy, the king's pardon, an act of grace or diversity of person, 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 issue, namely, the identity of his person: and not whether guilty or innocent; for that has been decided before. And in these collateral issues the trial shall be instanter, (h) and no time allowed the prisoner to make his defence or produce his witnesses, unless he will make oath that he is not the person attainted: (i) neither shall any peremptory challenges of the jury be allowed the prisoner; (j) though formerly such challenges were held to be allowable, whenever a man's life was in question (k) 4 II. If neither pregnancy, insanity, non-identity, nor other plea, will avail to avoid the judgment, and stay the execution consequent 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. Law (says an able writer) cannot be framed on principles of compassion to guilt: yet justice, by the constitution of England, is bound to be administered 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. (1) The king himself condemns no man; that rugged task he leaves to his courts of justice: the great operation of his sceptre is mercy. His [397] power of pardoning was said by our Saxon ancestors (m) to be derived a lege suæ dignitatis: and it is declared in parliament, by stat. 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 sole power thereof, united and knit to the imperial crown of this realm. (n) 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 f Ibid. 370. h 1 Sid. 72. See Appendix, § 3. g See page 24. n And this power belongs only to a king de facto, and not to a king de jure during the time of usurpation (Bro. Abr. t, charter de pardon. 22) any thing to say, why execution shall not be awarded according to the judgment. As the execution of the law in the first instance is respited not from a regard for the mother, but from teaderness towards the innocent infant, if then it should happen that she becoine quick of a second child, this surely is as much an object of compassion and humanity as the first.-Mr. Christian's note. (3) See ante, 25. n. (4) as to the trial of an insane person. By the 56 Geo. III. c. 117. provision is made for convicted criminals who become insane. See also the 55 Geo. III. c. 46. and 5 Geo. IV. c. 71. (4) As to pardons in general; see 1 Chit. C. L. 702 to 777.; 3 Inst. 253 to 240.; Hawk. b. 2. c. 37.; Com. Dig. l'ardon; Bac. Ab. Pardon; Burn J. Pardon; Williams J. Pardon. it in his power to extend mercy, wherever he thinks it is deserved: hold. ing a court of equity in his own breast, to soften the rigour of the general law, in such criminal cases as merit an exemption from punishment. Pardons (according to some theorists) (o) 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 exclusion of pardons must necessarily introduce a very dangerous power in the judge or jury, that of construing 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 situation and circumstances of the offender (though they alter not the essence of the crime) ought to make no distinction in the punishment. In democracies, however, this point of pardon can never subsist; for there nothing higher is acknowledged than the magistrate who administers the laws and it would be impolitic for the power of judging and of pardoning to centre in one and the same person. This (as the president Montesquieu observes) (9) would oblige him very often to contradict himself, to make and to unmake his decisions: 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 stadtholder, there is no power of pardoning lodged in any other member [398] of the state. But in monarchies the king acts in a superior sphere; and, though he regulates the whole government as the first mover, yet he does not appear in any of the disagreeable or invidious parts of it. Whenever the nation see him personally engaged, it is only in works of legislature, magnificence, or compassion. To him therefore the people look up as the fountain of nothing but bounty and grace; and these repeated acts of goodness, coming immediately from his own hand, endear the sovereign to his subjects, and contribute more than any thing to root in their hearts that filial affection, and personal loyalty, which are the sure establishment of a prince. Under this head of pardons, let us briefly consider, 1. The object of pardon : 2. The manner of pardoning: 3. The method of allowing a par don: 4. The effect of such pardon when allowed. 1. And, first, the king may pardon all offences merely against the crown, or the public; excepting, 1. That, to preserve the liberty of the subject, the committing any man to prison out of the realm, is by the habeas corpus act, 31 Car. II. c. 2. made a praemunire, unpardonable even by the king. Nor, 2. Can the king pardon, where private justice is principally concerned in the prosecution of offenders: "non potest rex gratiam facere cum injuria et damno aliorum.” (r) Therefore in appeals of all kinds (which are the suit, not of the king, but of the party injured) the prosecutor may release, but the king cannot pardon. (s) Neither can he pardon a common nusance, while it remains unredressed, or so as to prevent an abatement of it, though afterwards he may remit the fine: because though the prosecution is vested in the king to avoid multiplicity of suits, yet (during its continuance) this offence savours more of the nature of a private injury to each individual in the neighbourhood, than of a [399] public wrong. (t) Neither, lastly, can the king pardon an offence against a popular or penal statute, after information brought; for thereby the informer hath acquired a private property in his part of the penalty. (v) There is also a restriction of a peculiar nature, that affects the prerogative of pardoning, in case of parliamentary impeachments; viz. that the king's pardon cannot be pleaded to any such impeachment, so as to impede the inquiry, and stop the prosecution of great and notorious offenders. Therefore when, in the reign of Charles the Second, the Earl of Danby was impeached by the house of commons of high treason, and other misdemesnors, and pleaded the king's pardon in bar of the same, the commons alleged, (u) "that there was no precedent that ever any pardon was grant"ed to any persons impeached by the commons of high treason, or other "high crimes, depending the impeachment ;" and thereupon resolved, (w) "that the pardon so pleaded was illegal and void, and ought not to be al "lowed in bar of the impeachment of the commons of England;" for which resolution they assigned (x) this reason to the house of lords, "that "the setting up a pardon to be a bar of an impeachment defeats the whole "use and effect of impeachments; for should this point be admitted, or "stand doubted, it would totally discourage the exhibiting any for the fu"ture; whereby the chief institution for the preservation of the govern→ "ment would be destroyed." Soon after the Revolution, the commons renewed the same claim, and voted, (y) “that a pardon is not pleadable in bar of an impeachment." And, at length, it was enacted by the act of settlement, 12 & 13 W. III. c. 2. "that no pardon under the great seal of Eng"land shall be pleadable to an impeachment by the commons in parlia "ment." But, after the impeachment has been solemnly heard and deter mined, it is not understood that the king's royal grace is farther re[400] strained or abridged: for, after the impeachment and attainder of the six rebel lords in 1715, three of them were from time to time reprieved by the crown, and at length received the benefit of the king's most gracious pardon." 2. As to the manner of pardoning. 1. First, it must be under the great scal. A warrant under the privy seal, or sign manual, though it may be a u Com. Journ, 28 Apr. 1679. w lbid. 5 May, 1679. x Ibid. 26 May, 1679. y Com. Journ. 6 June, 1689. (5). Mr. Christian has the following note :-The following remarkable record, in which it is both acknowledged by the commons and asserted by the king, proves that the king's prerogative to pardon delinquents convicted in impeachments, is as ancient as the constitution itself. Item prie la commune a nostre dil seigneur le roi que nul pardon soit grante a nully persone, petit ne grande, q'ont este de son counseil et sermentez, et sont empeschez en cest present parlement de vie ne de membre, fyn ne de raunceon, de forfaiture des terres, tennemenz, biens ou chateaux, lesqueux sont ou serront trovez en aucun defaut encontre leur ligeance, et la tenure de leur dit serement: mais q'ils ne serront jammes conseillers ne officers du roi, mais en tout oustez de la courte le roi et de conseil as touz jours. Et sur ceo soit en present parlament fait estatut s'il plest au roi, et de touz autres en temps a venir en cas semblables, pur profit du roi et du roialme. 188. Responsio.-Le roi ent fra sa volente, come meiltz lui semblera. Rot. Parl. 50. Ed. III. n. After the lords have delivered their sentence of guilty, the commons have the power of pardoning the impeached convict, by refusing to demand judgment against him, for no judgment can be pronounced by the lords till it is demanded by the commons. Lord Macclesfield was found guilty without a dissenting voice in the house of lords; but when the question was afterwards proposed in the house of commons, that this house will demand judgment of the lords against Thomas Earl of Macclesfield, it occasioned a warm debate, but (the previous question being first moved) it was carried in the affirmative by a majority of 136 voices against 65. Com. Journ. 27 May, 1725 6 H. St. Tr. 762. In lord Stafford's trial, the commons sent the following message to the lords: "That this house hold it necessary and fit, that all the members of the house may be present at the trial: to the end every one may satisfy his own conscience in the giving of their vote to demand judgment." Commous' Journals, 11th of March, 1640. In the impeachment of Warren Hastings, esq. it was decided, after much serious and learned investigation and discussion, by a very great majority in each house of parliament, that an impeachment was not abated by a dissolution of the parliament, though almost all the legal characiers of each house voted in the minorities. |