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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, and no time allowed the prisoner to make his defense or produce his witnesses, unless he will make oath that he is not the person attainted; neither shall any peremptory challenges of the jury be allowed the prisoner; though, formerly, such challenges were held to be allowable whenever a man's life was in question.**

grant it.

II. If neither pregnancy, insanity, non-identity, nor other II. Pardon.* 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 ami- Who may able prerogative of the crown. Law (says an able writer) can not 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 courts of justice; the great operation of his sceptre is mercy. His [397] power of pardoning was said by our Saxon ancestorsm to be derived a lege suæ dignitatis; and it is declared in Parliament, by statute 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."

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 rigor of the general law, in such criminal

1 Sid., 72. See Appendix, § 3.
Fost., 42.

m LL. Edw. Conf., c. 18.

n And this power belongs only to a king de facto, and not to a king de jure

j 1 Lev., 61; Fost., 42, 46.

k Staundf., P. C., 163; Co. Litt., 157; during the time of usurpation. (Bro. Hal. Sum., 259. Abr., t. Charter de Pardon, 22.)

1 Law of Forfeit., 99.

(4) As to pardons in general, see 1 Chit., Crim. L., 762 to 777; 3 Inst., 233 to 240; Hawk., b. 2, c. 37; Com.

Dig., Pardon; Bac. Abr., Pardon; Burn,
Just., Pardon.-[CHITTY.]

* An insane person can not be tried, sentenced to any punishment, or punished for any crime or offense while he continues insane (2 R. S., 697, § 2); and if after sentence of death a convict becomes insane, it is the duty of the sheriff to summon a jury of twelve electors to inquire into the insanity, and to give notice to the district attorney of the county, who is authorized to subpoena witnesses; and if an inquisition be found that the convict is insane, the sheriff suspends the execution of the sentence, and the inquisition is transmitted to the governor, who, when convinced of the subsequent sanity of the convict, may direct his execution.--(2 R. S., 658, § 16, et seq.)

cases as merit an exemption from punishment. Pardons (according to some theorists") 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 essense of the crime) ought to make no distinction in the punishment. In democracies, however, this power 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 center in one and the same person. This (as the President Montesquieu observes) 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 [398] favor. 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 offenses merely against the crown or the public; excepting, 1. That, to preserve the may be par liberty of the subject, the committing any man to prison out

1. Object of pardon, and what

doned.

of the realm is, by the Habeas Corpus Act, 31 Car. II., c. 2, made

Beccar., ch. 46.

P Ibid., ch. 4.

4 Sp. L., b. 6, c. 5.

* It is not absolutely necessary to the existence of such a power that a monarchical government should be established. The President of the United States has the power to grant reprieves and pardons for offenses against the general government, except in cases of impeachment.-(Const. U. S., art. 2, § 2.) So the Governor of New York possesses a like power as to all offenses against the state government, except treason and cases of impeachment; and in the case of treason the legislature have the power to pardon.--(Const. of N. Y., art. 4, § 5.) A similar power, it is presumed, exists in all the states of the Union.

a præmunire, 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." 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 can not pardon. Neither can he pardon a common nuisance, while it remains unredressed, or so as to prevent an abatement of it, though afterward he may remit the fine; because, though the prosecution is vested in the king, to avoid multiplicity of suits, yet (during its continuance) this offense savors more of the nature of a private injury-to each individual in the neighbor- [399] hood than of a public wrong. Neither, lastly, can the king pardon an offense against a popular or penal statute after information brought; for thereby the informer hath acquired a private property in his part of the penalty."

3 Inst., 236.

Ibid., 237.

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 can not 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 "that there was no precedent that ever any pardon was granted to any person 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 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 votedy “that a pardon is not pleadable in bar of an impeachment." And at length it was enacted by the Act of Settlement, 12 & 13 Will. 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 [400] that the king's royal grace is further restrained or abridged; for, after the impeachment and attainder of the six rebel lords

8

t 2 Hawk., P. C., 391.

" 3 Inst., 238.

▾ Com. Journ., 28th April, 1679.
Ibid., 5th May, 1679.

Ibid., 26th May, 1679.
Ibid., 6th June, 1689.

2. Manner of pardoning.

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 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*

25 St. Tr., 166, 173.

(5) 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.

Responsio.-Le roi ent fra sa volente, come mieltz lui semblera. Rot. Parl., 50 Ed. III., n. 188.

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 afterward 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 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 the trial: to the end every one may satisfy his own conscience in the giving of their vote to demand judgment." Commons Journal, 11th of March, 1640.*

Item prie la commune a nostre dit 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 dil serement: mais q'ils ne serront jammes conseillers ne officers du roi, mais en tout oustez de la courte le roi el 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 venir en cas semblables, pur profil du roi et du roialme.

1

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.-[CHRISTIAN.]

(6) But now, by 6 Geo. IV., c. 25, s. [and 7 & 8 Geo. IV., c. 28, s. 13], a warrant under the royal sign-manual, countersigned by one of the principal secretaries of state, granting a free par don, 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 majes ty was empowered to authorize the gov ernor 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 was 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 were to be inserted in the next general pardon which should pass the great seal. Subsequently to the decision in 2 B. & Ald., 258, it was enacted by the 26th sect. of the 5 Geo. IV., c. 84, 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 re

*See ante, p. 397, n. *.

2. Next, it is a general rule, that wherever it may reasonably be presumed the king is deceived, the pardon is void. Therefore, any suppression of truth or suggestion of falsehood in a charter of pardon will vitiate the whole, for the king was misinformed. 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 ; 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 offense 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 offense 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 [401] 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 defense, 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 ceasing, it was doubted whether murder could be pardoned generally; but it was determined by the Court of King's Bench 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

* 2 Hawk., P. C., 383.

b3 Inst., 238.

2 Hawk., P. C., 383.

d 1 Hawk., P. C., 99.

* 3 Inst., 236.

f Salk., 499.

covery of any property acquired by him
since his conviction, or for any damage and 6 & 7 Vict., c. 7.
or injury sustained.-[CHITTY.] See,

VOL. IV.-F F

also, the stats. 2 & 3 Will. IV., c. 62,

449

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