Sivut kuvina


1. Without writ of error.




TENTH. RE- We are next to consider how judgments, with their several JUDGMENT. Connected consequences 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 can not 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 showing the special matter without writ of error. As, where a commission issues to A. and B., and twelve others, or any two of them, of which A. or B. shall be one, to take and try indictments, and any of the other twelve proceed without the inter[391] position or presence of either A. or B.; in this case all proceedings, trials, convictions, and judgments are void for want of 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 afterward 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

a 2 Hawk., P. C., 459.

(1) See, in general, 1 Chit., Crim. L., 2d ed., 743 to 756.—[CHITTY.]

acknowledged. But if such attainder of the vendor was by verdict, on the oath of his peers, the alienee can not 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 offense was committed after the alienation, and not before.b

of error.

Secondly, a judgment may be reversed by writ of error; 2. By wri. 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 judg ment 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 offense committed in the time of the late king to be done against the peace of the present, and for many other similar causes, which (though allowed [392] out of tenderness 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 shown to the attorney-general, and then they are understood to be grantable of common right, and ex debito justitiæ. But writs of error to reverse attainders in capital cases are only allowed ex gratia, and not without express warrant under the king's signmanual, 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 offense against the state; but they may be brought by his heir, or executor, after his death, in more favorable times, which may be some consolation to his family. But the easier and the more effectual way is,

b.3 Inst., 231; 1 Hal., P. C., 361.

(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., Crim. L., 2d ed., 749 to 751. [CHITTY.]

(3) But see now the 7 Geo. IV., c. 64, s. 20, 21, ante, p. 333, n. (5), and 340, n. (17).* Where the judgment is

c 1 Vern., 170, 175. reversed by the Court of King's Bench on writ of error from an inferior court (though it be merely for the addition to the sentence of a term not justified by law, as of hard labor to a sentence of imprisonment), the court is bound to discharge the prisoner, and can not remit the record to the court below, that the proper sentence may be pronounced there. 5 B. & C., 395; 2 Nev. & P., 248; 2 G. & D., 617.

* See ante, p. 335, note*, and p. 336, note *.

+ In New York, writs of error upon judgments rendered on an indictment for a capital offense are not issued unless allowed by the chancellor or one of the justices of the Supreme Court, or a circuit judge, upon notice given to the attorney-general or to the district attorney of the county where the conviction was had. In all other cases, writs of error upon a final judgment rendered upon an indictment are writs of right, and issue of course, in vacation as well as in term,

Lastly. By act of ParLament.

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, honors, 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.*

Effect of reversal.

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 [393] the process of outlawry for his non-appearance, remain good and effectual as before. But when judgment, 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 be granted away by the crown, yet the owner may enter upon the grantee with as little ceremony as he might enter upon a disseizor. But he still remains liable to another prosecution for the same offense; for the first being erroneous, he never was in jeopardy thereby.*

d 2 Hawk., P. C., 462.

(4) This was done with respect to the forfeited estates in Scotland, by statute 24 Geo. III., c. 57.-[CHRISTIAN.]

out of the court in which they are made returnable. A writ of error, however, will not stay or delay the execution of a judgment or of sentence thereon, unless the allowance contain an express direction that it shall have such effect. During the pendency of the writ of error the defendant may be let to bail by either of the above-named officers, if the offense charged be not punishable with a higher grade of punishment than imprisonment in a state prison. If the Supreme Court affirm the judgment, it directs the sentence pronounced to be executed; if it reverses the judgment, it either directs a new trial, or that the defendant be ab solutely discharged, according to the circumstances of the case. If a new trial be ordered, it is had in the court in which the indictment was first tried.-(2 R. S., 740, § 14, et seq.)

* In New York, the Supreme Court, on reversing a judgment in a criminal case, in which exceptions are taken to a decision of the court before which the trial was had, are authorized either to direct a new trial, or absolutely discharge the defendant, according to the circumstances of the case.-(2 R. S., 741, § 24.)






THE only other remaining ways of avoiding the execution ELEVENTH. of the judgment are by a reprieve or a pardon; whereof the AND PARformer is temporary only, the latter permanent.



I. A reprieve,' from reprendre, to take back, is the with- I. Reprieve. drawing of a sentence for an interval of time, whereby the execution is suspended. This may be, first, ex arbitrio judi- Ex arbitrio cis, 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 offense be within clergy; or, sometimes, if it be a small felony, or any favorable 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 jail delivery, although their session be finished and their commission expired; but this rather by common usage than of strict right.a

tate legis;

Reprieves may also be ex necessitate legis; as, where a Ex necessi woman is capitally convicted, and pleads her pregnancy; as preg though this is no cause to stay the judgment, yet it is to respite nancy, &c. the execution till she be delivered. This is a mercy dictated [395] 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. A barbarity which they never learned from the laws of ancient Rome, which direct,c with the same humanity as our own, "quod prægnantis mulieris damnatæ pœna differatur, quoad pariat;" which doctrine has also prevailed in England, as

a 2 Hal., P. C., 412.

Fox, Acts and Mon.

Ff., 48, 19, 3.

(1) As to reprieves in general, see 1 Hale, 368 to 370; 2 Hale, 412 to 414; Hawk., b. 2, c. 51, s. 8, 9, 10; 1 Chit., Crim. L., 2d ed., 757 to 762.

In addition to the reprieves mentioned by the learned commentator is that ex

mandato regis, or from the mere pleas-
ure 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.—[CHIT-

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 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 stayed, 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 afterward becomes pregnant again, she shall not be entitled to the benefit of a further respite for that cause. 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."


Another cause of regular reprieve is, if the offender become non compos between the judgment and the award of execution ;f for, regularly, as was formerlys 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 re[396] ceive judgment; if after judgment, he shall not 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. 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 that was attainted, and the like. In this last case a jury shall be impaneled to

On account of insanity.

d Flet., 1. 1, c. 38.
* 1 Hal., P. C., 369.

(2) It is usual for the clerk of assize to ask women who receive sentence of death if they have 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 tenderness toward the innocent infant, if then it should happen that she

f 1 Hal., P. C., 370.
* See page 24.

become quick of a second child, this surely is as much an object of compassion and humanity as the first.-[CHRIST1AN.]

(3) As to the proceedings on the trial of an insane person, and the treatment of lunatic convicts, see ante, p. 25, n. (3).

* If a female convict, sentenced to the punishment of death, be pregnant, it is, in New York, the duty of the sheriff to summon a jury of six physicians to inquire into the fact, and to give notice to the district attorney; and if it be found that the convict is quick with child, the sheriff suspends the execution of the sentence, and transmits the inquisition to the governor, who is authorized subsequently to appoint a day for her execution when she is no longer quick with child.-(2 R. S., 658, § 20, et seq.)

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