66 66 Danby was impeached by the house of commons of high treason, and other misdemesnors, and pleaded the king's pardon in bar of the same, the commons alleged ", "that there was no precedent that ever any pardon was granted to any person impeached by the commons of high treason, or other high crimes, depending the impeachment ;" and thereupon resolved", "that the pardon so pleaded was illegal and void, "and ought not to be allowed in bar of the impeachment of "the commons of England;" for which resolution they assigned 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 dis"courage 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, "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 parlia"ment." But, after the impeachment has been solemnly heard and determined, it is not understood that the king's [400] royal grace is farther 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. Next, it is a general rule, that, wherever it may reasonably be presumed the king is deceived, the pardon is void. Therefore, any suppression of truth, or suggestion of falsehood, in a charter of pardon, will vitiate the "Com. Journ. 28 Apr, 1679. Ibid. 5 May 1679. * Ibid. 26 May 1679. y Com. Journ. 6 June 1689. 1 whole; for the king was misinformed. 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; and a pardon of felonies will not include pi racy; 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 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, 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 [401] 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 obstantes ceasing, it was doubted whether murder could be pardoned generally; but it was determined by the court of king's bench', 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. 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 " 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. (2) h 3. WITH regard to the manner of allowing pardons: we may observe, that a pardon by act of parliament is more [402] 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 1; neither can he lose the benefit of it by his own laches or negligence, as he may of the king's charter of pardon. 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 waved 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. 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. (3) But that statute 82 Hawk. P. C. c.37. § 45. (2) See ante, p. 371. n. (4). i Fost. 43. * 2 Hawk. P. C. c.37. § 59. (3) And the party at the time of claiming the pardon, produced a writ out 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 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 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 ". (4) n See Vol. II. pag. 254. out of chancery, commonly called a writ of allowance, testifying that he had complied with the statute, in finding sureties, &c. 2 Hawk. P. C. c. 37. s. 70. (4) That is, if the son so born after the pardon, has no brother born before the pardon, who survives the father. For if he has, neither can inherit; not the elder, because the operation of the pardon is not retrospective; nor the younger, because he has an elder brother living, who at one time by possibility might have inherited, and that possibility will be sufficient to prevent the inheritance of the younger brother. 1 Co. Litt. 8.a. CHAPTER THE THIRTY-SECOND. OF EXECUTION. THERE 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 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: though, in the court of the peers in parliament, it is done by writ from the king". Afterwards it was established, that, in case of life, the judge may command execution to be done without any writ. And how 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 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. 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 [404 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. now remains nothing to speak of, but execution a 2 Hal. P. C. 409. b See Append. § 5. Finch. L. 478. d Staundf. P. C. 182. • 5 Mod. 22. |