sufficient authority to admit the party to bail, in order to plead the king's pardon, when obtained in proper form, yet is not of itself a complete irrevocable pardon. (2) 2. Next, it is a general rule, that, wherever it may reasonably be presumed the king is deceived, the pardon is void. (a) Therefore any suppression of truth, or suggestion of falsehood, in a charter of pardon, will vitiate the whole for the king was misinformed. (b) 3. General words have also a very imperfect effect in pardons. A pardon of all felonies will not pardon a conviction or attainder of felony (for it is presumed the king knew not of those proceedings), but the conviction or attainder must be particularly mentioned; (c) and a pardon of felonies will not include piracy; (d) for that is no felony punishable at the common law. 4. It is also enacted by statute 13 Ric. II. st. 2. c. 1. that no pardon for treason, murder, or rape shall be allowed, unless the offence be particularly specified therein; and particularly in murder it shall be expressed, whether it was committed by lying in wait, assault, or malice prepense. Upon which sir Edward Coke observes, (e) that it was not the intention of the parliament, that the king should ever pardon murder under these aggravations; and therefore they prudently laid the pardon under these restrictions, because they did not conceive it possible that the king would ever excuse an offence by name, which was attended with such high aggravations. And it is remarkable enough, that there is no precedent of a pardon in the register for any other homicide, than that which happens se defendendo or per infortunium, to which two species [401] the king's pardon was expressly confined by the statutes 2 Edw. III. c. 2. and 14 Edw. III. c. 15. which declare that no pardon of homicide shall be granted, but only where the king may do it by the oath of his crown ; that is to say, where a man slayeth another in his own defence, or by mis. fortune. But the statute of Richard the Second, before mentioned, en. larges by implication the royal power; provided the king is not deceived in the intended object of his mercy. And therefore pardons of murder were always granted with a non obstante of the statute of king Richard, till the time of the Revolution; when the doctrine of non obstante's ceasing, it was doubted whether murder could be pardoned generally; but it was determined by the court of king's bench, (f) that the king may pardon on an indictment of murder, as well as a subject may discharge an appeal. Under these and a few other restrictions, it is a general rule, that a pardon shall be taken most beneficially for the subject, and most strongly against the king. A pardon may also be conditional: that is, the king may extend his z 5 St. Tr. 166. 179. a 2 Hawk. P. C. 383. b 3 Inst. 233. c 2 Hawk. P. C. 389. f Salk. 499. (6) But now by 6 Geo. IV. c. 25. s. 1. a warrant under the royal sign manual, countersigned by one of the principal secretaries of state, granting a free pardon, and the prisoner's discharge under it; or granting a conditional pardon, and the performance of such condition, is as effectual as a pardon under the great seal. By the 30 Geo. III. c. 47. his majesty is empowered to authorize the governor or lieutenant governor of any place to which convicts are transported, to remit, either absolutely or conditionally, the whole or any part of their term of transportation; which remission is to be of the same effect as if his majesty had signified his intention of mercy under the sign manual; and the names of such convicts are to be inserted in the next general pardon which shall pass the great seal. Subsequently to the decision in 2 B. & A. 258., by the 26th sect. of the 5 Geo. IV. c. 84. it is enacted, that a felon under sentence or order of transportation, receiving a remission of the sentence from the governor or lieutenant-governor of New South Wales, or any other colony, who may be authorized to grant the same, while such felon shall reside in a place where he lawfully may reside, under such sentence, order, or remission, may sue for the recovery of any property acquired by him since his conviction, or for any damage or injury sustained. Chitty 304 PUBLIC WRONGS. [Воок 4. mercy upon what terms he pleases; and may annex to his bounty a condition either precedent or subsequent, on the performance whereof the vali dity of the pardon will depend; and this by the common law. (g) Which prerogative is daily exerted in the pardon of felons, on condition of being confined to hard labour for a stated time, or of transportation to some foreign country for life, or for a term of years; such transportation or banishment (h) being allowable and warranted by the habeas corpus act, 31 Car, II. c. 2. § 14. and both the imprisonment and transportation rendered more easy and effectual by statutes 8 Geo. III. c. 15. and 19 Geo. III. c. 74.7 3. With regard to the manner of allowing pardons: we may observe, that a pardon by act of parliament is more beneficial than by the [402] king's charter; for a man is not bound to plead it, but the court must ex officio take notice of it; (i) neither can he lose the benefit of it by his own laches or negligence, as he may of the king's charter of pardon. (k) The king's charter of pardon must be specially pleaded, and that at a proper time: for if a man is indicted, and has a pardon in his pocket, and afterwards put himself upon his trial by pleading the general issue, he has waived the benefit of such pardon. (1) But, if a man avails himself thereof, as soon as by course of law he may, a pardon may either be pleaded upon arraignment, or in arrest of judgment, or in the present stage of proceedings, in bar of execution. Anciently, by statute 10 Edw. III. c. 2. no pardon of felony could be allowed, unless the party found sureties for the good behaviour before the sheriff and coroners of the county. (m) But that statute is repealed by the statute 5 & 6 W. & M. c. 13., which, instead thereof, gives the judges of the court a discretionary power to bind the criminal, pleading such pardon, to his good behaviour, with two sureties, for any term not exceeding seven years. 4. Lastly, the effect of such pardon by the king, is to make the offender a new man; to acquit him of all corporal penalties and forfeitures annexed to that offence for which he obtains his pardon; and not so much to restore his former, as to give him a new credit and capacity. But nothing can restore or purify the blood when once corrupted, if the pardon be not allowed till after attainder, but the high and transcendent power of parliament. Yet if a person attainted receives the king's pardon, and afterwards hath a son, that son may be heir to his father, because the father being made a new man, might transmit new inheritable blood; though, had he been born before the pardon, he could never have inherited at all. (n) a g 2 Hawk. P. C. 594. 8 Transportation is said (Bar. 352) to have been first inflicted as a punishment, by statute 89 Eliz. c. 4. i Fost. 43. k 2 Hawk, P. C. 397. n See Book II. page 254. 1 Ibid, 396. m Saik. 499. (7) The 8 Geo. III. c. 15. is repealed by the 5 Geo. IV. c. 84. which latter act contains many important provisions as to the transportation, &c. of convicts. See the act analysed and considered in 1 Chit. C. L. 2 ed. 791. et seq It has been held, that though a convict escape during the term of transportation, but be taken again, and serve the remainder of his term, it will not destroy the effect of the statute pardon. Russ. & R. C. C. 248. (8) A son born after the attainder may inherit if he has no elder brother living born before tha attainder, otherwise the land will escheat pro defectu haeredis. 1 H. P. C. 358 CHAP. XXXII. OF EXECUTION. THERE now remains nothing to speak of, but execution; the completion of human punishment. And this, in all cases, as well capital as otherwise, must be performed by the legal officer, the sheriff or his deputy; whose warrant for so doing was anciently by precept under the hand and seal of the judge, as it is still practised in the court of the lord high steward, upon the execution of a peer: (a) though, in the court of the peers in parliament, it is done by writ from the king. (b) Afterwards it was established, (c) that, in case of life, the judge may command execution to be done without any writ. And now the usage is, for the judge to sign the calendar, or list of all the prisoners' names, with their separate judgments in the margin, which is left with the sheriff. As, for a capital felony, it is written opposite to the prisoner's name, "let him be hanged by the neck;" for. merly, in the days of Latin and abbreviation, (d) "sus. per col." for 26 sus. pendatur per collum." And this is the only warrant that the sheriff has for so material an act as taking away the life of another. (e) It may certainly afford matter of speculation, that in civil causes there should be such a variety of writs of execution to recover a trifling debt, issued in the king's name, and under the seal of the court, without which the sheriff cannot legally stir one step; and yet that the execution of a man, the [404] most important and terrible task of any, should depend upon a mar. ginal note." The sheriff, upon receipt of his warrant, is to do execution within a convenient time; which in the country is also left at large. In London indeed a more solemn and becoming exactness is used, both as to the warrant of execution, and the time of executing thereof for the recorder, after (1) As to this in general, see 1 Chit. C. L. 2 ed. 779 to 811. d Staundf. P. C. 182. (2) Though it be true that a marginal note of a calendar, signed by the judge, is the only warrant that the sheriff has for the execution of a convict, yet it is made with more caution and soTemnity than is represented by the learned commentator. At the end of the assizes the clerk of assize makes out in writing four lists of all the prisoners, with separate columns, containing their crimes, verdicts, and sentences, leaving a blank column, in which, if the judge has reason to vary the course of the law, he writes opposite the names of the capital convicts, to be reprieved, respited, transported, &c. These four calendars, being first carefully compared together, by the judge and the clerk of assize, are signed by them, and one is given to the sheriff, one to the gaoler, and the judge and the clerk of assize cach keep another. If the sheriff receives afterwards no special order from the judge, he executes the judgment of the law in the usual manner, agreeably to the directions of his calendar. In every county this important subject is settled with great deliberation by the judge and the clerk of assize, before the judge leaves the assize-town ; but probably in different counties, with some slight variations, as in Lancashire, no calendar is teft with the gaoler, but one is sent to the secretary of state. If the judge thinks it proper to reprieve a capital convict, he sends a memorial or certificate to the king's most excellent majesty, directed to the secretary of state's office, stating that, from favourable circumstances appearing at the trial, he recommends him to his majesty's mercy, and to a pardon upon condition of transportation or some slight punishment. This recommendation is always attended to.-Mr. Christian's note. (3) In general the court do not appoint the time of execution. 3 Burr. 1819. reporting to the king in person the case of the several prisoners, and receiving his royal pleasure, that the law must take its course, issues his warrant to the sheriffs; directing them to do execution on the day and at the place assigned. (f) And, in the court of king's bench, if the prisoner be tried at the bar, or brought there by habeas corpus, a rule is made for his execution; either specifying the time and place, (g) or leaving it to the discretion of the sheriff. (h) And, throughout the kingdom, by statute 25 Geo. II. c. 37. it is enacted, that, in case of murder, the judge shall in his sentence direct execution to be performed on the next day but one after sentence passed. (2) But, otherwise, the time and place of execution are by law no part of the judgment. (k) It has been well observed, (1) that it is of great importance, that the punishment should follow the crime as early as possible; that the prospect of gratification or advantage, which tempts a man to commit the crime, should instantly awake the attendant idea of punishment. Delay of execution serves only to separate these ideas; and then the execution itself affects the minds of the spectators rather as a terrible sight, than as the necessary consequence of transgression. 5 The sheriff cannot alter the manner of the execution by substituting one' death for another, without being guilty of felony himself, as has [405] been formerly said. (m) It is held also by sir Edward Coke (n) and sir Matthew Hale, (o) that even the king cannot change the punishment of the law, by altering the hanging or burning into beheading; though, when beheading is part of the sentence, the king may remit the rest. And, notwithstanding some examples to the contrary, sir Edward Coke stoutly maintains, that "judicandum est legibus, non exemplis." But others have thought, (p) and more justly, that this prerogative, being founded in mercy, and immemorially exercised by the crown, is part of the common law.' For, hitherto, in every instance, all these exchanges have been for more merciful kinds of death; and how far this may also fall within the king's power of granting conditional pardons (viz. by remitting a severe kind of death, on condition that the criminal submits to a milder), is a matter that may bear consideration. It is observable, that when lord Stafford was ex-' ecuted for the popish plot in the reign of king Charles the Second, the then sheriffs of London, having received the king's writ for beheading him, petitioned the house of lords, for a command or order from their lordships, how the said judgment should be executed; for, he being prosecuted by impeachment, they entertained a notion (which is said to have been countenanced by lord Russel) that the king could not pardon any part of the sentence. (4) The lords resolved, (r) that the scruples of the sheriffs were unnecessary, and declared, that the king's writ ought to be obeyed. Disappointed of raising a flame in that assembly, they immediately signified (s) to the house of commons by one of the members, that they were not satisfied as to the power of the said writ. That house took two days to consider of it; and then (t) sullenly resolved, that the house was content that the f See Append. § 4. Beccar ch. 19. g St. Trials, VI. 332. Fost 43. h See Append. § 3. i See page 202 k So held by the twelve judges, Mich. 10 Geo. III. (4) See 3 Burr. 1812. And even the above statute is only directory as to awarding the day of crecution, and does not render it an essential requisite Rosa & R. Č. €, 250. (5) Now abolished, see ante, 876, note (S). sheriff do execute lord Stafford, by severing his head from his body. It is further related, that when afterwards the same lord Russel was condemned for high treason upon indictment, the king, while he remitted the ig. nominious part of the sentence, observed, " that his lordship would [406] "now find he was possessed of that prerogative, which in the case "of lord Stafford he had denied him." (u) One can hardly determine (at this distance from those turbulent times) which most to disapprove of, the indecent and sanguinary zeal of the subject, or th cool and cruel sarcasm of the sovereign. To conclude it is clear, that if, upon judgment to be hanged by the neck till he is dead, the criminal be not thoroughly killed, but revives, the sheriff must hang him again. (w) For the former hanging was no execu tion of the sentence; and, if a false tenderness were to be indulged in such cases, a multitude of collusions might ensue. Nay, even while ab. jurations were in force, (x) such a criminal, so reviving, was not allowed to take sanctuary and abjure the realm; but his fleeing to sanctuary was held an esape in the officer. (y) And, having thus arrived at the last stage of criminal proceedings, or execution, the end and completion of human punishment, which was the sixth and last head to be considered under the division of public wrongs, the fourth and last object of the laws of England; it may now seem high time to put a period to these Commentaries, which, the author is very sen. sible, have already swelled to too great a length. But he cannot dismiss the student, for whose use alone these rudiments were originally compiled, without endeavouring to recall to his memory some principal outlines of the legal constitution of this country; by a short historical review of the most considerable revolutions, that have happened in the laws of England, from the earliest to the present times. And this task he will attempt to discharge, however imperfectly, in the next or concluding chapter. CHAP. XXXIII. OF THE BISE, PROGRESS, AND GRADUAL IMPROVEMENTS, OF THE LAWS OF ENGLAND. BEFORE we enter ou the subject of this chapter, in which I propose, by way of supplement to the whole, to attempt an historical review of the most remarkable changes and alterations, that have happened in the laws of England, I must first of all remind the student, that the rise and pro. gress of many principal points and doctrines have been already pointed out in the course of these Commentaries, under their respective divisions; these having therefore been particularly discussed already, it cannot be expected that I should re-examine them with any degree of minuteness; which would be a most tedious undertaking. What I therefore at present propose, is only to mark out some outlines of our English juridical history, by taking a chronological view of the state of our laws, and their successive mutations at different periods of time. • 2 Hume, 260. w 2 Hal. P. C. 412, 2 Hawk. P. C. 463. * See page $26. y Fitzh. Abr、t. corona, 83. Fiecb. L. 467, |