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 eftates: 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 disseisord. But he still remains liable to another prosecution for the same offence: for, the first being erroneous, he never was in jeopardy thereby d2 Hawk. P. C. 462. CHAPTER THE THIRTY FIRST. OF REPRIEVE, AND PARDO Ν. THE HE only other remaining ways of avoiding the execution of the judgment are by a reprieve, or a pardon; whereof the former is temporary only, the latter permanent. I. A REPRIEVE, 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; either before or after judgment: as, where the judge is not fatisfied with the verdict, or the evidence is suspicious, or the indictment is infufficient, or he is doubtful whether the offence be within clergy; or sometimes if it be a small felony, or any favourable 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*. REPRIEVES may also be ex neceffitate legis: as, where a woman is capitally 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 is a mercy dictated 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 bystanders, 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 antient Rome; which direct, with the fame humanity as our own, “ quod praegnantis “ mulieris damnatae poena differatur, quoad pariat:" which doctrine has also prevailed in England, as early as the first memorials of our law will reachd. In cafe this plea be made in stay of execution, the judge must direct a jury of twelve matrons or difcreet women to enquire 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 staid generally till the next feffion; and fo from feffion to feffion, 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 afterwards becomes pregnant again, she shall not be intitled to the benefit of a farther 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': for regularly, as was formerly & 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 receive judgment; if after judgment, he shall not be ordered for exe ► Fox, Acts and Mon. f Ibid. 370. See pag. 24. cution : cution: for "furiofus folo 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 infane, the judge in his discretion may and ought to reprieve him. Or, he 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 fame that 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. And in these collateral issues the trial shall be inftanter, 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: 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'. II. IF neither pregnancy, infanity, 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. Laws (says an able writer) cannot be framed on principles of compaffion to guilt: yet juftice, by the constitution of England, is bound to be administred 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 fceptre is mercy. His power of par 1 390 THIS is indeed one of the great advantages of monarchy in general, above any other form of government; that there is a magiftrate, 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 rigour of the general law, in such criminal cafes 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; 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 effence of the crime) ought to make no distinction in the punishment. In democracies, however, this power of pardon can never fubfift; for there nothing higher is acknowleged 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 fame perfon. 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 favour. 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 ■ LL. Edw. Conf. c. 18. P Ibid. ch. 4. a supe |