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 nuisance, 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 *in- [*399]` jury to each individual in the neighbourhood, than of a public wrong (). 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 (u).

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 misdemeanors, and pleaded the king's pardon in bar of the same, the commons alleged (v), "that there was no precedent that ever any pardon was granted 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 allowed in bar of the impeachment of the commons of England;" for which resolution they assigned (a) 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 future; whereby the chief institution for the preservation of the government 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 England shall be pleadable to an impeachment by the commons in parliament." But, after the impeachment has been solemnly heard and determined, it is not understood that the king's royal grace is farther restrained or abridged: [*400] 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 (6).

(r) 3 Inst. 236.

(s) Ibid. 237.

(t) 2 Hawk. P. C. 391.

(u) 3 Inst. 238.

(6) 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 dit seigneur le roi que nul pardon soit grante a nully persone, petit ne grande, q'ont est de son counseil et serVOL. II.

(v) Com. Journ. 28. Apr. 1679.
(w) Ibid. 5 May 1679.
(z) Ibid. 26 May 1679.
(y) Ibid. 6 June 1689.

mentez, 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 ouster de la courte le roi et de conseil as touz jours. Et sur ceo soit en present parlement fait estatut s'il plest au roi, et de touz autres en temps a 89

2. As to the manner of pardoning. 1. First it must be under the great seal. A warrant under the privy seal, or sign manual, though it may be a 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) (7). 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.

(z) 5 St. Tr. 166. 173.

(a) 2 Hawk. P. C. 383. (b) 3 Inst. 238.

venir en cas semblables, pur profit du roi et du roialme.

Responsio. Le roi ent fra sa volente, come mieltz lui semblera. Rot. Parl. 50 Ed. III. n. 181.

After the lords have delivered their sentence of guilty, the commons have the power of pardoning the impeached convict, by refus ing to demand judgment against him, for no judgment can he pronounced by the lords till it is demanded by the commons. Lord Mac- clesfield 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 judg. ment of the lords against Thomas eari 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 Strafford'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 trial to the end every one may sa tisfy his own conscience in the giving of their vote to demand judgment." Commons' 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 characters of each house voted in the minorities.

(7) By 7 and 8 Geo. IV. c. 28, 13, it is enacted, "that where the king's majesty shall be pleased to extend his royal mercy to any offender convicted of felony, punishable with death or otherwise, and by warrant under his royal sign manual, countersigned by one of his principal secretaries of state, shall grant to such offender either a free or conditional

(c) 2 Hawk. P. C. 383.
(d) 1 Hawk. P. C. 99.

pardon the discharge of such offender out of custody in the case of a free pardon, and the performance of the condition in the case of a conditional pardon, shall have the effect of a pardon under the great seal for such offender, as to the felony for which such pardon shall be so granted. Provided, always, that no free pardon, nor any such discharge in consequence thereof, nor any conditional pardon, nor the performance of the condition thereof in any of the cases aforesaid, shall prevent or mitigate the punishment to which the offender might otherwise be lawfully sentenced on a subsequent conviction, for any felony committed after the granting of any such pardon." This section is in substance a re-enactment of 1 of the unrepealed statute 6 Geo. IV. c. 25, with the exception of the proviso, which is new.

By 39 Geo. III. c. 47, the king may authorize the 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 shall 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.

And by 26 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 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 may lawfully 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 by him. This enactment was introduced shortly after the decision of the court of K. B. in the case of Bullock v. Dodds, 2 B. and A. 258

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 [*401] happens se defendendo or per infortunium: to which two species 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 misfortune. But the statute of Richard the Second, before mentioned, enlarges 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 mercy upon what terms he pleases; and may annex to his bounty a condition either precedent or subsequent, on the performance whereof the validity 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. (8).

3. With regard to the manner of allowing pardons: we may observe, that a pardon by act of parliament is more *beneficial [*402] than by the 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

(8) The 8 Geo. III. c. 15, is repealed by the 5 Geo. IV. c. 84, and the 19 Geo. III. c. 74, by the 7 and 8 Geo. IV. c. 27. And by 9 Geo. IV. c. 32, 3, reciting, that it is expedient to prevent all doubts respecting the civil rights of persons convicted of felonies not capital, who have undergone the punishment to which they were adjudged, it is enacted, that where any offender hath been or shall be convicted of any felony not punishable with death, and hath endured or shall endure the punishment

been first inflicted as a punishment by statute 39 Eliz. c. 4.

(i) Fost. 43.

(k) 2 Hawk. P. C. 397.

to which such offender hath been or shall Be adjudged for the same, the punishment so endured hath and shall have the like effects and consequences as a pardon under the great seal as to the felony whereof the offender was so convicted: provided always, that nothing therein contained, nor the enduring of such punishment, shall prevent or mitigate any pu nishment to which the offender might otherwise be lawfully sentenced on a subsequent conviction for any other felony.

that at a proper time: for if a man is indicted, and has a pardon in his pocket, and afterwards puts 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) (9).

CHAPTER XXXII.

OF EXECUTION (1).

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 ;" formerly in the days of Latin and abbreviation (d), “ sus. per col.” for “ suspendatur 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

(1) 2 Hawk. P. C. 396.

(m) Salk. 499.

(n) See Book II. page 254.

(a) 2 Hal. P. C. 409.

(9) A son born after the attainder may inherit if he has no elder brother living born before the attainder, otherwise the land will escheat

(b) See Appendix, § 5.

(c) Finch, L. 478.

(d) Staundf. P. C. 182.
(e) 5 Mod. 22.

pro defectu haeredis. 1 H. P. C. 358.

(1) As to this in general, see 1 Chit. C. L 2 ed. 779 to 811.

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 [*404] man, the most important and terrible task of any, should depend upon a marginal note (2) (3).

The sheriff, upon receipt of his warrant, is to do execution within a convenient time; which in the country is also left at large (4), (5). 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 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 (). 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 (i). But, otherwise, the time and place of execution are by law no part of the judgment (k) (6). 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. The sheriff cannot alter the manner of the execution by subtituting one

(f) See Appendix, 6 4.

(g) St. Trials, VI. 332. Fost. 43. (A) See Appendix, ◊ 3.

(i) See page 202.

(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 solemnity 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 each 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

(k) So held by the twelve judges, Mich. 10 Geo. III. (1) Beccar. ch. 19.

variations, as in Lancashire, no calendar is left 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.

(3) In New-York, the judgment is entered fully on the minutes of the clerk, (2 R. S. 738, § 5,) and the defendant may procure a record to be made up. Id. § 4.

(4) In New-York, the time for executing the sentence of death is not less than four nor more than eight weeks. (2 R. S. 658, § 11.)

(5) In general the court do not appoint the time of execution. 3 Burr. 1812.

(6) See 3 Burr. 1812. And even the above statute is only directory as to awarding the day of execution, and does not render it an essential requisite. Russ. & R. C. C. 230.