person, other than the offender himself; which virtually abolishes all cor ruption of blood for treason, though (unless the legislature should interpose) it will still continue for many sorts of felony (8).

CHAPTER XXX.

OF REVERSAL OF JUDGMENT.

We are next to consider how judgments, with their several connected conseqences, of attainder, forfeiture, and corruption of blood, may be set aside. There are two ways of doing this; either by falsifying or reversing the judgment, or else by reprieve or pardon.

A judgment may be falsified, reversed, or avoided, in the first place, without a writ of error, for matters foreign to or dehors the record, that is, not apparent upon the face of it; so that they cannot be assigned for error in the superior court, which can only judge from what appears in the record itself: and therefore if the whole record be not certified, or not truly certified, by the inferior court, the party injured thereby (in both civil and criminal cases) may allege a diminution of the record, and cause it to be rectified. Thus, if any judgment whatever be given by persons, who had no good commission to proceed against the person condemned, it is void; and may be falsified by shewing the special matter without writ of error. As, where a commission issues to A. and B., and twelve others, or any of them, of which A. or B. shall be one, to take and try indictments; and

any of the other twelve proceed without the interposition or pre[*391] sence of either A. or B.: in this case all proceedings, trials, convictions, and judgments, are void for want of a proper authority in the commissioners, and may be falsified upon bare inspection without the trouble of a writ of error (a); it being a high misdemeanor in the judges so proceeding, and little (if any thing) short of murder in them all, in case the person so attainted be executed and suffer death. So likewise if a man purchases land of another; and afterwards the vendor is, either by outlawry or his own confession, convicted and attainted of treason or felony previous to the sale or alienation; whereby such land becomes liable to forfeiture or escheat; now upon any trial, the purchaser is at liberty, without bringing any writ of error, to falsify not only the time of the felony or treason supposed, but the very point of the felony or treason itself; and is not concluded by the confession or the outlawry of the vendor; though the vendor himself is concluded, and not suffered now to deny the fact, which he has by confession or flight acknowledged. But if such attainder of the vendor was by verdict, on the oath of his peers, the alienee cannot be received to falsify or contradict the fact of the crime committed; though he is at liberty to prove a mistake in time, or that the offence was committed after the alienation, and not before (b).

(a) 2 Hawk. P. C. 459.

(8) In New-York, no forfeiture is caused by any offence except upon an outlawry for treason, (2 R. S. 701, § 22 :) and on such out

(b) 3 Inst. 231. 1 Hal. P. C. 361.

lawry his goods are all forfeited absolutely, and his lands during his life. (Id. 656, § 3.)

Secondly, a judgment may be reversed by writ of error (1): 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 [*392] the present; and for other similar causes, which (though allowed out of tenderness to life and liberty) are not much to the credit or advancement of the national justice (2). 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 effect of reversing the attainder without casting any reflections upon the justice of the preceding sentence (3).

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-appearance, *remain good and effectual as before. But when judgment [*393] pronounced upon conviction, is falsified or reversed, all former proceedings are absolutely set aside, and the party stands as if he had never been at all 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 ceremony as he might enter upon a disseisor (d). But he still remains liable

(c) 1 Vern. 170. 175.

(1) 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.

(d) 2 Hawk. P. C. 462.

(2) See ante 306, 376, these informalities now cured. As to writs of error in NewYork, see 2 R. S. 739, &c.

(3) This was done with respect to the forfeited estates in Scotland, by statute 24 Geo. III. c. 57.

to another prosecution for the same offence; for the first being erroneous, he never was in jeopardy thereby.

CHAPTER 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 (1), 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 (2); either before or after judgment; as, where the judgment 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 session 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 delivered. [395] 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 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 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 (6). 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, quod 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

(a) 2 Hal. P. C. 412.

(b) Fox, Acts and Mon.

(1) As to reprieves in general, see 1 Hale, 368 to 370. 2 Hale 411 to 412. 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) In New-York none but the governor

(c) Ff. 48. 19, 3.

(d) Flet. l. 1, c. 38.

can grant a reprieve, (not even the judges); but the sheriff, with the concurrence of the circuit judge, or, in his absence, with the concurrence of any judge of the court which tried the convict, may summon a jury to try whether a convict sentenced to the punishment of death is insane; or, in case of a woman, whether or not she be quick with child; and if the jury find in the affirmative, execution of sentence will be suspended. (2 R. S 658, § 15, &c.)

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 (3).

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 be indicted; if after indictment, he shall not be convicted; if after conviction, he shall not receive judgment; if after judgment, he shall not [*396] be ordered for execution: for, "furiosus solo furore punitur," and 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 (4). Or, the party may 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 as 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).

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 (?). The king himself condemns no man; that rugged task he leaves to his

[397] courts of justice: the great operation of his sceptre is mercy. His power of pardoning was said by our Saxon ancestors (m) to be derived a lege sue 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 it in his power to extend mercy, wherever he thinks it is deserved: holding 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 (5), 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) (7) 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 diffi

cult to tell, whether a prisoner were discharged by his innocence, [*398] 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 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 pardon : 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

(m) L. L. Edw. Conf. c. 18.

(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.)

(5) In New-York, and in the states generally, this power is vested in the governor of the state in the U. S. it is the prerogative of the President. See the Constitutions. They

(0) Beccar. ch. 46.
(p) Ibid. ch. 4.

(q) Sp. L. b. 6, c. 5.

can pardon all offences except on impeachments, and may grant conditional pardons. See 2 R. S. 745, § 21.