3. Manner pardon. 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 labor for a stated time, or of transportation to some foreign country for life, or for a term of years; such transportation or banishmenth 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.' 3. With regard to the manner of allowing pardons, we may of allowing 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; 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 afterward puts himself upon his trial by pleading the general issue, he has waived the benefit of such pardon. 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 behavior before the sheriff and coroners of the county. But that statute is repealed by the statute 5 & 6 W. & M., c. 13, which, instead thereof, gives the judges of the court a discretionary power to bind the criminal pleading such pardon to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 behavior, with two sureties, for any term not exceeding seven years. 4. Lastly, the effect of a pardon. m 4. Lastly, the effect of such pardon by the king is to make the offender a new man, to acquit him of all corporeal penalties and forfeitures annexed to that offense 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 € 2 Hawk., P. C., 394. (7) The 8 Geo. III., c. 15, is repealed It has been held that though a convict escape during the term of transportation, but be taken again, and serve the remainder of his term, it will not destroy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 statutable pardon. Russ. & Ry., C. C., 248. * Similar power is given to the Governor of New York.-(Const. of N. Y., art. 4, § 5.) of Parliament. Yet if a person attainted receives the king's pardon, and afterward 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.no ■ See vol. ii., page 254. (8) A son born after the attainder wise the land will escheat pro defectu may inherit if he has no elder brother hæredis. 1 Hale, P. C., 358.-[CHRISTliving born before the attainder, other- IAN.] 451 403 LASTLY. CHAPTER 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 practiced 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. Afterward, it was established 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, "sus. per coll.," 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. 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 can not legally stir one step; and yet that the execution of a man, the most important and terrible task of any, should depend upon a marginal note." a 2 Hal., P. C., 409. (1) As to execution in general, see 1 (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 d Staundf., P. C., 182. 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 jailer, and the judge and the clerk of assize each keep another. If the sheriff' receives afterward 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 The sheriff, upon receipt of his warrant, is to do execution [404 ] 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 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. 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,s 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. But, otherwise, the time and place of execution are by law no part of the judgment.* It has been well observed, 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 can not alter the manner of the execution, by f See Appendix, § 4. St. Trials, vi., 332; Fost., 43. counties, with some slight variations, as 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 favorable 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.-[CHRISTIAN.] So held by the twelve judges, Mich., 10 Geo. III. Beccar., ch. 19. 1 & 5, no report is to be made to the (4) But see now the 6 & 7 Will. IV., (3) But now, by stat. 1 Vict., c. 77, s. c. 30, s. 1, ante, p. 202, n. (25). * In New York, when a convict is sentenced to the punishment of death, the court, or a major part thereof, of whom the presiding judge must always be one, make out, sign, and deliver to the sheriff of the county a warrant stating such conviction and sentence, and appointing the day on which the sentence shall be executed, which by statute is required to be not less than four weeks, nor more than eight weeks from the time of the sentence. The punishment is inflicted by hanging the convict by the neck till he be dead.-(2 R. S., 657, § 11, 12, 25.) substituting one death for another, without being guilty of fel[405] ony himself, as has been formerly said. It is held, also, by Sir Edward Coken and Sir Matthew Hale," that even the king can not 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 executed 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.q The lords resolved 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 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 thent sullenly resolved that the house was content that the sheriff do execute Lord Stafford by severing his head from his body. It is further related that, when afterward the same Lord Russel was condemned for high treason upon indictment, the king, while he remitted the ignominious part of [406] the sentence, observed "that his lordship would now find he was possessed of that prerogative which, in the case of Lord Stafford, he had denied him." 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 the 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 92 Hume, Hist. of G. B., 238. (5) Now abolished; see ante, p. 204, n. (27). |