future incapacities of inheritance even to the twentieth generation, may in process of time be abolished by act of parliament, as it stands upon

a very different footing from the forfeiture of lands for high *treason, [*389 affecting the king's person or government. And indeed the legislature has, from time to time, appeared very inclinable to give way to so equitable a provision, by enacting that in certain treasons respecting the papal supremacy (w) and the public coin, (x) and in many of the new-made felonies created since the reign of Henry the Eighth by act of parliament, corruption of blood shall be saved. But as in some of the acts for creating felonies (and those not of the most atrocious kind) this saving was neglected or forgotten to be made, it seems to be highly reasonable and expedient to antiquate the whole of this doctrine by one undistinguishing law: especially as, by the afore-mentioned statute of 7 Anne, c. 21, (the operation of which is postponed by statute 17 Geo. II. c. 39,) after the death of the sons of the late pretender no attainder for treason will extend to the disinheriting any heir nor the prejudice of any person, other than the offender himself, which virtually abolishes all corruption of blood for treason, though (unless the legislature should interpose) it will still continue for many sorts of felony. (43)

CHAPTER XXX.

OF REVERSAL OF JUDGMENT.

[*390

*WE are next to consider how judgments, with their several 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 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 showing the special matter without writ of error. (1) As where a commission issues (w) Stat. 5 Eliz. c. 1.

(z) Stat. 5 Eliz c. 11. 18 Eliz. c. 1. 8 & 9 W. III.

c. 26. 15 & 16 Geo. II. c. 28.

(43) These statutes were, however, repealed, by stat. 39 Geo. III. c. 93; but, by stat. 54 Geo. III. c. 145, corruption of blood was abolished in all cases except the crimes of high treason and murder; and, by statute 3 & 4 W. IV. c. 106, s. 10, it is enacted that corruption of blood on attainder shall not obstruct descents to the posterity of the offender where they are obliged to derive a title through him or her to a remoter ancestor.STEWART.

(1) That is, if such judgment comes collaterally in question in any other cause or court, the party against whom it is used may so avoid it. But I do not see how it can be directly reversed, except by writ of error, either for error in fact-in which case it would lie before the same court, and the fact would be alleged-or for error in law. The case put of persons proceeding to judgment without a good commission is one of those decided illegalities for which the law seems to afford no preventive remedy: they who do so subject themselves, indeed, to punishments afterwards; but in the mean time they are acting in defiance of law, and are not, indeed, a court, to or from which any appeal can

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 *391] without the interposition or presence 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)

Secondly, a judgment may be reversed by writ of error; (2) 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 *392] time of the late king to be done against the peace of 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. 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.(3) But writs of error to reverse attainders in capital cases are only allowed ex gratia,(4) and not without express warrant under the king's sign-manual, or at least by the consent of the attorneygeneral. (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 favorable 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

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

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

(c) 1 Vern. 170, 175.

be formally made.-COLEridge.

Brown v. O'Connell, 36 Conn. 432, 456 (1870). The

People v. White, 24 N. Y. (Wend.) 518, 566 (1840).

(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, 2551, 2552. As to the mode and practice of obtaining the writ, see I Chitt. C. L. 2 ed. 749 to 751.—CHITTY.

(3) [As due to justice.]

(4) [As matter of favor.]

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. (5)

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 pro- [*393 nounced 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 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 [*394 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 judge 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 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 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:(3) as where a woman is capitally (d) 2 Hawk. P. C. 462.

(5) I Bright. Husb. and Wife, 160, 531.

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

(1) See Butler v. State, 97 Ind. 393, 394 (1884). See Sterling v. Drake, 457, 460 (1876.) As to reprieves in general, see I Hale, 368 to 370. 2 Hale, 411 to 412. Hawk. b. ii. c. 51, ss. 8, 9, 10. Williams, J., Execution and Reprieve. I Chitt. C. L. 757 to 762.

In addition to the reprieves mentioned by the learned commentator is that ex mandato 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. i Hale, 368. Hawk. b. ii. c. 51, s. 8.-CHITTY.

(2) [At the will of the judge.] See Lavetto v. The People, 7 Cowen (N. Y.) 339, 343 (1827).

(3) [From legal necessity.]

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. This *395] is a mercy *dictated by the law of nature, in favorem prolis;(4) 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 bystanders, after some deliberation of the priests who assisted at the sacrifice, they cast it again into the fire as a young heretic. (b) 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, quod pariat:" (5) 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 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. (6) 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 further respite for that cause. (e) For she may now be excuted before the child is quick in the womb, and shall not, by her own incontinence, evade the sentence of justice. (7)

Another cause of regular reprieve is, if the offender becomes non compos(8) between the judgment and the award of execution; (f) for regularly, as was formerly (g) observed, though a man be compos(9) 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 *396] receive judgment; if after judgment, he shall not be ordered for execution: for "furiosus solo furore punitur," (10) 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. (11) Or the party may plead in bar of execution;

(b) Fox, Acts and Mon.

(c) Ff. 48, 19, 3.

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

(e) 1 Hal. P. C. 369.

(ƒ) Ibid. 370.

(g) See page 24.

(4) [In favor of the offspring.]

(5)["That the punishment of a pregnant woman condemned, shall be deferred until after her delivery."]

(6) 2 Waterman's Crim. Proc. 97.

(7) See Mitchell v. Com., 78 Ky. 204, 208 (1879). State v. Cooper, 2 N. J. (Zab.) 52, 57 (1849). 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 towards the innocent infant, if, then, it should happen that she become quick of a second child, this surely is as much an object of compassion and humanity as the first.-CHRISTIAN.

(8) [Of unsound mind.]

(9) [Of sound mind.]

(10) ["A madman is punished by his madness alone."] See Freeman v. The People, 4 N. Y. (Denio) 9, 20 (1847).

(11) The law is more precisely stated at page 25. Supposing the party to have been sane at the commission of the crime, there can be no objection to indicting him though he may become insane before the bill is preferred; because if he were in his senses he

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. (12) 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. (7) 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 power [*397 of pardoning was said by our Saxon ancestors (m) to be derived a lege sua dignitatis: (13) 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. (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 rigor of the general law in such criminal cases as 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.

I

could not be heard to allege any thing against the indictment before the grand jury. See the provisions on this subject now made by the 39 & 40 Geo. III. c. 94.-COLERIDGE. Waterman's Crim. Proc. 27. Cook v. Freeholders, 2 N. J. (Denio) 326, 333 (1857). By the constitution of the United States, the president is invested with the power to pardon; and by the constitution of the several states, such power is vested in their respective governors.

(12) Curtis v. Cochran, 50 N. H. 242, 245 (1870). 77 (1881).

(13) [From the law of his dignity.]

Eberhardt v. Sanger, 51 Wisc. 72,