CHAPTER THE THIRTY FIRST.

OF REPRIEVE, AND PARDON.

THE 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 fentence for an interval of time; whereby the execution is fufpended. This may be, firft, ex arbitrio judicis; either before or after judgment: as, where the judge is not fatisfied with the verdict, or the evidence is fufpicious, or the indictment is infufficient, or he is doubtful whether the offence be within clergy; or fometimes if it be a fmall felony, or any favourable circumftances appear in the criminal's character, in order to give room to apply to the crown for either an abfolute or conditional pardon. Thefe arbitrary reprieves may be granted or taken off by the juftices of gaol delivery, although their feffion be finifhed, and their commiffion expired: but this rather by common ufage, than of ftrict right ^a.

REPRIEVES may alfo be ex neceffitate legis: as, where a woman is capitally convicted, and pleads her pregnancy; though this is no caufe to ftay the judgment, yet it is to refpite the execution till fhe be delivered. This is a mercy dictated by the

.{FS}
^a 2 Hal. P. C. 412.
.{FE}
A a a 2
law
.P 388
PUBLIC WRONGS.
BOOK IV.
Ch. 31.
law of nature, in favorem prolis; and therefore no part of the bloody proceedings, in the reign of queen Mary, hath been more juftly detefted than the cruelty, that was exercifed in the ifland of Guernfey, of burning a woman big with child: and, when through the violence of the flames the infant fprang forth at the ftake, and was preferved by the byftanders, after fome deliberation of the priefts who affifted at the facrifice, they caft it again into the fire as a young heretic ^b. A barbarity which the never learned from the laws of antient Rome; which direct ^c, with the fame humanity as our own, “quod praegnantis “mulieris damnatae poena differatur, quoad pariat:” which doctrine has alfo prevailed in England, as early as the firft memorials of our law will reach ^d. In cafe this plea be made in ftay of execution, the judge muft 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, unlefs it be alive in the womb, is not fufficient) execution fhall be ftaid generally till the next feffion; and fo from feffion to feffion, till either fhe is delivered, or proves by the courfe of nature not to have been with child at all. But if fhe once hath had the benefit of this reprieve, and been delivered, and afterwards becomes pregnant again, fhe fhall not be intitled to the benefit of a farther refpite for that caufe ^e. For fhe may now be executed before the child is quick in the womb; and fhall not, by her own incontinence, evade the fentence of juftice.

ANOTHER caufe of regular reprieve is, if the offender become non compos, between he judgment and the award of execution ^f: for regularly, as was formerly ^g obferved, though a man be compos when he commits a capital crime, yet if he becomes non compos after, he fhall not be indicted; if after indictment, he fhall not be convicted; if after conviction, he fhall not receive judgment; if after judgment, he fhall not be ordered for exe-

.{FS}
^b Fox, Acts and Mon.
^c Ff. 48. 19. 3.
^d Flct. l. 1. c. 38.
^e 1 Hal. P. C. 369.
^f Ibid. 370.
^g See pag. 24.
.{FE}
cution:
.P 389
PUBLIC WRONGS.
BOOK IV.
Ch. 31.
cution: for “furiofus folo furore punitur,” and the law knows not but he might have offered fome reafon, if in his fenfes, to have ftayed thefe refpective proceedings. It is therefore an invariable rule, when any time intervenes between the attainder and the award of execution, to demand of the prifoner what he hath to allege, why execution fhould not be awarded againft him: and, if he appears to be infane, the judge in his difcretion 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 diverfity of perfon, viz. that he is not the fame that was attainted, and the like. In this laft cafe a jury fhall be impaneled to try this collateral iffue, namely, the identity of his perfon; and not whether guilty or innocent; for that has been decided before. And in thefe collateral iffues the trial fhall be inftanter ^h, and no time allowed the prifoner to make his defence or produce his witneffes, unlefs he will make oath that he is not the perfon attainted ^I: neither fhall any peremptory challenges of the jury be allowed the prifoner ^k; though formerly fuch challenges were held to be allowable, whenever a man's life was in queftion.

II. IF neither pregnancy, infanity, non-identity, nor other plea will avail to avoid the judgment, and ftay the execution confequent thereupon, the laft and fureft refort is in the king's moft gracious pardon; the granting of which is the moft amiable prerogative of the crown. Laws (fays an able writer) cannot be framed on principles of compaffion to guilt: yet juftice, by the conftitution of England, is bound to be adminiftred in mercy: this is promifed by the king in his coronation oath, and it is that act of his government, which is the moft perfonal, and moft entirely his own ^m. The king himfelf condemns no man; that rugged tafk he leaves to his courts of juftice: the great operation of his fceptre is mercy. His power of par-

.{FS}
^h 1 Sid. 72.
^I Foft. 42.
^k 1 Lev. 61. Foft. 42. 46.
^l Staundf. P. C. 163. Co. Litt. 157. Hal. Sum. 259.
^m Law of Forfeit. 99.
.{FE}
doning
.P 390
PUBLIC WRONGS.
BOOK IV.
Ch. 31.
doning was faid by our Saxon anceftors ⁿ too be derived a lege fuae dignitatis: and it is declared in parliament, by ftatute 27 Hen. VIII. c. 24. that no other perfon hath power to pardon or remit any treafon or felonies whatfoever; but that the king hath the whole and fole power thereof, united and knit to the imperial crown of this realm.

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 deferved: holding a court of equity in his own breaft, to foften the rigour of the general law, in fuch criminal cafes as merit an exemption from punifhment. Pardons (according to fome theorifts ^o) fhould be excluded in a perfect legiflation, where punifhments are mild but certain: for that the clemency of the prince feems a tacit difapprobation of the laws. but the exclufion of pardons muft neceffarily introduce a very dangerous power in the judge or jury, that of conftruing the criminal law by the fpirit inftead of the letter ^p; or elfe it muft be holden, what no man will ferioufly avow, that the fituation and circumftances of the offender (though they alter not the effence of the crime) ought to make no diftinction in the punifhment. In democracies, however, this power of pardon can never fubfift; for there nothing higher is acknowleged than the magiftrate who adminifters 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 prefident Montefquieu obferves ^q) would oblige him very often to contradict himfelf, to make and to unmake his decifions: it would tend to confound all ideas of right among the mafs of the people; as they would find it difficult to tell, whether a prifoner were difcharged by his innocence, or obtained a pardon through favour. In Holland therefore, if there be no ftadtholder, there is no power of pardoning lodged in any other member of the ftate. But in monarchies the king acts in

.{FS}
ⁿ LL. Edw. Conf. c. 18.
^o Beccar. ch. 46.
^p Ibid. ch. 4.
^q Sp. L. b. 6. c. 5.
.{FE}
a fupe-
.P 391
PUBLIC WRONGS.
BOOK IV.
Ch. 31.
a fuperior fphere; and, though he regulates the whole government as the firft mover, yet he does not appear in any of the difagreeable or invidious parts of it. Whenever the nation fee him perfonally engaged, it is only in works of legiflature, magnificence, or compaffion. To him therefore the people look up as the fountain of nothing but bounty and grace; and thefe repeated acts of goodnefs, coming immediately from his own hand, endear the fovereign to his fubjects, and contribute more than any thing to root in their hearts that filial affection, and perfonal loyalty, which are the fure eftablifhment of a prince.

UNDER this head, of pardons, let us briefly confider, 1. The object of pardon: 2. The manner of pardoning: 3. The method of allowing a pardon: 4. The effect of fuch pardon, when allowed.

1. AND, firft, the king may pardon all offences merely againft the crown, or the public; excepting, 1. That, to preferve the liberty of the fubject, the committing any man to prifon out of the realm, is by the habeas corpus act, 31 Car. II. c. 2. made a praemunire, unpardonable even by the king. Nor, 2. Can the king pardon, where private juftice is principally concerned in the profecution of offenders: “non poteft rex gratiam facere cum injuria et damno aliorum ^r.” Therefore in appeals of all kinds (which are the fuit, not of the king, but of the party injured) the profecutor may releafe, but the king cannot pardon^s. Neither can he pardon a common nufance, while it remains unredreffed, or fo as to prevent an abatement of it; though afterwards he may remit the fine: becaufe, though the profecution is vefted in the king to avoid multiplicity of fuits, yet (during it's continuance) this offence favours more of the nature of a private injury to each individual in the neighbourhood, than of a public wrong ^t. Neither, laftly, can the king pardon an offence againft a popular or penal ftatute, after information brought:

.{FS}
^r 3 Inft. 236.
^s Ibid. 237.
^t 2 Hawk. P. C. 391.
.{FE}
for
.P 392
PUBLIC WRONGS.
BOOK IV.
Ch. 31.
for thereby the informer hath acquired a private property in his part of the penalty ^u.

THERE is alfo a reftriction of a peculiar nature, that affects the prerogative of pardoning, in cafe of parliamentary impeachments; viz. that the king's pardon cannot be pleaded to any fuch impeachment, fo as to impede the inquiry, and ftop the profecution of great and notorious offenders. Therefore when, in the reign of Charles the fecond, the earl of Danby was impeached by the houfe of commons of high treafon and other mifdemefnors and pleaded the king's pardon in bar of the fame, the commons alleged ^w, “that there was no precedent, that ever any pardon “was granted to any perfon impeached by the commons of high “treafon, or other high crimes, depending the impeachment;” and therefore refolved ^x, “that the pardon fo pleaded was illegal and “void, and ought not to be allowed in bar of the impeachment “of the commons of England:” for which refolution they affigned ^y this reafon to the houfe of lords, “that the fetting up a “pardon to be a bar of an impeachment defeats the whole ufe “and effect of impeachments: for fhould this point be admitted, or ftand doubted, it would totally difcourage the exhibiting any for the future; whereby the chief inftitution for the “prefervation of the government would be deftroyed.” Soon after the revolution, the commons renewed the fame claim, and voted ^z, “that a pardon is not pleadable in bar of an impeachment.” And, at length, it was enacted by the act of fettlement, 12 & 13 W. III. c. 2. “that no pardon under the great feal of “England fhall be pleadable to an impeachment by the commons “in parliament.” But, after the impeachment has been folemnly heard and determined, it is not underftood that the king's royal grace is farther reftrained or abridged: for, after the impeachment and attainder of the fix rebel lords in 1715, three of them

.{FS}
^u 3 Inft. 238.
^w Com. Journ. 28 Apr. 1679.
^x Ibid. 5 May 1679.
^y Ibid. 26 May 1679.
^z Ibid. 6 Jun. 1689.
.{FE}
were
.P 393
PUBLIC WRONGS.
BOOK IV.
Ch. 31.
were from time to time reprieved by the crown, and at length received the benefit of the king's moft gracious pardon.

2. AS to the manner of pardoning: it is a general rule, that, wherever it may reafonably be perfumed the king is deceived, the pardon is void ^a. Therefore any fuppreffion of truth, or fuggeftion of falfhood, in a charter of pardon, will vitiate the whole; for the king was mifinformed ^b. General words have alfo a very imperfect effect in pardons. A pardon of all felonies will not pardon a conviction or attainder of felony; (for it is perfumed the king knew not of thofe proceedings) but the conviction or attainder muft be particularly mentioned ^c: and a pardon of felonies will not include piracy ^d; for that is no felony punifhable at the common law. It is alfo enacted by ftatute 13 Ric. II. ft. 2. c. 1. that no pardon for treafon, murder, or rape, fhall be allowed, unlefs the offence be particularly fpecified therein; and particularly in murder it fhall be expreffed, whether it was committed by lying in wait, affault, or malice prepenfe. Upon which fir Edward Coke obferves ^e, that it was not the intention of the parliament that the king fhould ever pardon murder under thefe aggravations; and therefore they prudently laid the pardon under thefe reftrictions, becaufe they did not conceive it poffible that the king would ever excufe an offence by name, which was attended with fuch high aggravations. And it is remarkable enough, that there is no precedent of a pardon in the regifter for any other homicide, than that which happens fe defendendo or per infortunium: to which two fpecies the king's pardon was expreffly confined by the ftatutes 2 Edw. III. c. 2. and 14 Edw. III. c. 15. which declare that no pardon of homicide fhall be granted, but only where the king may do it by the oath of his crown; that is to fay, where a man flayeth another in his own defence, or by misfortune. But the ftatute of Richard the fecond, before-mentioned, enlarges by implication the royal power; provided the king is not deceived in the intended object

.{FS}
^a 2 Hawk. P. C. 383.
^b 3 Inft. 238.
^c 2 Hawk. P. C. 383.
^d 1 Hawk. P. C. 99.
^e 3 Inft. 236.
.{FE}
B b b
of
.P 394
PUBLIC WRONGS.
BOOK IV.
Ch. 31.
of his mercy. And therefore pardons of murder were always granted with a non obftante of the ftatute of king Richard, till the time of the revolution; when the doctrine of non obftante's ceafing, 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 fubject may difcharge an appeal. Under thefe and a few other reftrictions, it is a general rule, that a pardon fhall be taken moft beneficially for the fubject, and moft ftrongly againft the king.

A PARDON may alfo be conditional: that is, the king may extend his mercy upon what terms he pleafes; and may annex to his bounty a condition either precedent or fubfequent, 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 tranfportation to fome foreign country (ufually to fome of his majefty's colonies and plantations in America) for life, or for a term of years; fuch tranfportation or banifhment ^h being allowable and warranted by the habeas corpus act, 31 Car. II. c. 2. §. 14. and rendered more eafy and effectual by ftatute 8 Geo. III. c. 15.

3. WITH regard to the manner of allowing pardons; we may obferve, 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 muft ex officio take notice of it ^I; neither can he lofe 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 muft be fpecially pleaded, and that at a proper time: for if a man is indicted, and has a pardon in his pocket, and afterwards puts himfelf upon his trial by pleading the general iffue, he has waived the benefit of fuch pardon ^l. But, if a man avails himfelf

.{FS}
^f Salk. 499.
^g 2 Hawk. P. C. 394.
^h Tranfportation is faid (Barr. 352.) to have been firft inflicted, as a punifhment, by ftatute 39 Eliz. c. 4.
i Foft. 43.
^k 2 Hawk. P. C. 397.
^l Ibid. 396.
.{FE}
thereof
.P 395
PUBLIC WRONGS.
BOOK IV.
Ch. 31.
thereof as foon as by courfe of law he may, a pardon may either be pleaded upon arraignment, or in arreft of judgment, or in the prefent ftage of proceedings, in bar of execution. Antiently, by ftatute 10 Edw. III. c. 2. no pardon of felony could be allowed, unlefs the party found fureties for the good behaviour before the fheriff and coroners of the county ^m. But that ftatute is repealed by the ftatute 5 & 6 W. & M. c. 13. which, inftead thereof, gives the judges of the court a difcretionary power to bind the criminal, pleading fuch pardon, to his good behaviour, with two fureties, for any term not exceeding feven years.

4. LASTLY, the effect of fuch 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 fo much to reftore his former, as to give him a new, credit and capacity. But nothing can reftore or purify the blood when once corrupted, if the pardon be not allowed till after attainder, but the high and tranfcendent power of parliament. Yet if a perfon attainted receives the king's pardon, and afterwards hath a fon, that fon may be heir to his father; becaufe the father, being made a new man, might tranfmit new inheritable blood: though, had he been born before the pardon, he could never have inherited at all ⁿ.

.{FS}
^m Balk. 499.
ⁿ See Vol. II. pag. 254.
.{FE}
B b b 2
.P 396
PUBLIC WRONGS.
BOOK IV.