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. (8) 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 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 [*401] homicide, than that *which happens se defendendo 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 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 obstante ceasing, it was doubted whether murder could be pardoned generally; but it was determined by the court of King's Bench (ƒ), that the king (c) 2 Hawk. P. C. 383. : (d) 1 Hawk. P. C. 99. (e) 3 Inst. 236. (f) Salk. 499. (8) The statute of 28 Hen. VIII. c. 15, does not alter the nature of the offence of piracy, so as to make that which was before a felony only by the civil law, now become a felony by the common law; 1 Hawk. P. C. c. 20, § 11. 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. ditional, 401 A pardon may also be conditional; that is, the king may It may be conextend 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, sec. 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 (9). (g) 2 Hawk. P. C. 394. (h) Transportation is said (Bar. 352) (9) 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, § 3, reciting, that it is expedient to prevent all doubts respecting the civil rights of persons convicted of felonies not capital, 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. This Act is entitled, "An Act for to have been first inflicted as a punish- amending the law of evidence in cer- It has been held that in order to es- and may be allowed by act of parliament, or, by charter. [*402] Its effect is to make the of fender a new man. 3. With regard to the manner of allowing pardons: we may observe, that a 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 (7). 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 behaviour before the sheriff and coroners of the county (m). But that statute is repealed by the statute 5 and 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 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 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) (10). (i) Fost. 43. (k) 2 Hawk. P. C. 397. (m) Salk. 499. (10) A son born after the attainder may inherit if he has no elder brother living born before the attainder, other wise the land will escheat pro defectu hæredis; 1 H. P. C. 358.-CH. 403 CHAPTER XXXII. OF EXECUTION. completion of ment, THERE now remains nothing to speak of, but execution; Execution, the the completion of human punishment. And this, in all cases, human punishas 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 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 now the usage is, for the judge to sign the calendar, or list of all the prisoner's 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). * (a) 2 Hal. P. C. 409. (b) See Append. § 5. (c) Finch. L. 478. (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 (d) Staundf. P. C. 182. the learned commentator. At the end [*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 sheriffs; directing them to do execution on the day and at the place assigned (f). 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) (2). 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 (i). But, otherwise, the time and place of execution are by law no part of the judgment (k) (3). (f) See Append. § 4. (g) St. Trials, vi. 332; Fost. 43. (h) See Append. § 3. the judge fills up opposite the names of the capital convicts by writing, 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 gaoler, 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 variation, as in Lancashire, no calendar is left with the gaoler, but one is sent to the secretary of state. (i) See page 202. (k) So held by the twelve judges, Mich. 10 Geo. III. 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.-CH. (2) The court of K. B. has authority to order the sheriff of any county, or the marshal of the court, to carry into execution a sentence of death, pronounced by a judge under a commission of oyer and terminer and general gaol delivery; Rex v. Garside, 4 Nev. & Man. 33. (3) Vide ante, 202, latter part of note (55). • Vide post, n. (3). |