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merit an exemption from punishment. Pardons (according to some theorists)(0) 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, 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) (q) 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 favour. In *Holland, therefore, [*398 if there be no stadtholder, there is no power of pardoning lodged in 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 foun tain 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.

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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 com. mitting any man to prison out of the realm is, by the habeas corpus act, 31 Car. II. c. 2, made 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.” (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.(8) 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 *injury to each individual in the neighbourhood than of a public [*399 wrong.(t) 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 misdemeanours, 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

() Beocar. ch. 46.

VOL. II.-39

Ibid. ch. 4.

Sp. L. b. vi. c. 5.

3 Inst. 236.

Ibid. 237.

( 2 Hawk. P. C. 391.
3 Inst. 238.

Com. Jour. April 28, 1679.
() Ibid. May 5, 1679.

609

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 de*400] termined, it is not understood that the *king's royal grace is further restrained or abridged; 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.

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)*

(*) Com. Jour. May 26, 1679.

() Ibid. June 6, 1689.

() 5 State Trials, 166, 173.

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, petu ne grande, q'ont est de son counseil et sermentez, et sont empeschez en cest present parlement de vie no 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 ustez de la courte le roi et de conseil as wuz jours. Et sur cen soit en present parlement fait estatut s'il plest au roi, et de tous autres en temps a 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 Edw. III. n. 181. 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 afterwards proposed in the house of commons that this house will demana 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. Jour. May 27, 1725. 6 H. T. R. 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 satisfy his own conscience in the giving of their vote to demand judgment." Commons' Journal, 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 parlia ment, 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.

5 By 7 & 8 Geo. IV. c. 28, s. 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 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 subse quent conviction for any felony committed after the granting of any such pardon." This section is in substance a re-enactment of sect. 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 conricts are transported to remit, either absolutely or conditionally, the whole or any part

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 ardon 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. 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 happens se defendendo or per infortunium: to which two species the king's pardon was expressly confined by the sta- [*401 tutes 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 obstantes 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 Gen. III. c. 74.

a) 2 Hawk. P. C. 383.

3 Inst. 238.

(e) 2 Hawk. P. C. 383.

(d) 1 Hawk. P. C. 99.
() 3 Inst. 236.

(1) Salk. 499.

(0) 2 Hawk. P. C. 394.

(*) Transportation is said (Bar. 352) to have been ▲ inflicted as a punishment by statute 39 Eliz. c. 4.

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 sect. 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 King's Bench in the case of Bullock vs. Dcdds, 2 B. & A. 258. CHITTY.

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 & 8 Geo. IV. c. 27. And, by 9 Geo. IV. c. 32, s. 3, reciting that it is expedient to

3. With regard to the n anner of allowing pardons, we may observe that a *402] pardon by act of parliament is more beneficial 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 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. Antiently, 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. and 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 at tainder, 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)TM

CHAPTER XXXII.

OF EXECUTION.

*403] *THERE now remains nothing to speak of but execution; the comple tion 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 antiently 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

Fost. 43.

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

(1) Ibid. 396.

(m) Salk. 499.

(") See book ii. page 254.

2 Hal. P. C. 409.
(See Appendix, § 5.
() Finch, L. 478.

prevent all doubts respecting the civil rights of persons convicted of felonies not capita, 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 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 punishment to which the offender might otherwise be lawfully sentenced on a subsequent conviction for any other felony.

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A son born after the attainder may inherit if he has no elder brother living born before the attainder; otherwise the land will escheat pro defectu hæredis. 1 Hal. P. C. 358. CHRISTIAN.

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 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 man, the most important and terrible task of any, should depend upon a marginal note.1

[*404 The sheriff, upon receipt of his warrant, is to do execution 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 sheriffe, directing them to do execution on the day and at the place assigned.(ƒ)2 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. (h) 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.(k) 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 substituting one death

(d) Staundf. P. C. 182.

5 Mod. 22.

(See Appendix, ? 4.

) State Trials, vi. 332. Fost. 43.

(A) See Appendix, 3.

(See page 202.

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

1 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 gaolor, 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 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.-CHRISTIAN.

2 But now, by stat. 1 Vict. c. 77, s. 1, no report is to be made to her majesty of the case of any capital convict at the central criminal court; but, by sect. 5, the court shall of its own authority direct execution to be done on offenders.-STEWART.

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.CHITTY.

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