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2. Next, it is a general rule that wherever it may reasonably be presumed the king is deceived, the pardon is void. (a) Therefore any suppression of truth, or suggestion of falsehood, in a charter of pardon will vitiate the whole; for the king was misinformed.(b) 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;(c) and a pardon of felonies will not include piracy,(d) 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(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 homicide than that *which happens se defendendo or per infortunium: to [*401 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's ceasing, 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 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. (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, § 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.

(a) 2 Hawk. P. C. 383.

(6) 3 Inst. 238.

(c) 2 Hawk. P. C. 383.

(d) 1 Hawk. P. C. 99.

() 3 Inst. 236.

(5) Salk. 499.

(9) 2 Hawk. P. C. 394.

(A) Transportation is said (Bar. 352) to have been first inflicted as a punishment by statute 39 Eliz. c. 4.

of their term of transportation; which remission shall be of the same effect as if his majesty had signified his intention of mercy under the sign-manual; and the names of such convicts are to be inserted in the next general pardon which shall pass the great seal.

And, by sect. 26 of the 5 Geo. IV. c. 84, it is enacted that a felon under sentence or order of transportation, receiving a remission of the sentence from the governor of New South Wales, or any other colony, who may be authorized to grant the same while such felon shall reside in a place where he may lawfully reside under such sentence, order, or remission, may sue for the recovery of any property acquired by him since his conviction, or for any damage or injury sustained by him. This enactment was introduced shortly after the decision of the court of King's Bench in the case of Bullock vs. Dcdds, 2 B. & A. 258. CHITTY.

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, s. 3, reciting that it is expedient to

3. With regard to the manner of allowing pardons, we may observe that a *402] 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 er 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.(1) 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) But that statute is repealed by the statute 5 & 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 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.(n)

CHAPTER XXXII.

OF EXECUTION.

*403] *THERE now remains nothing to speak of but execution; 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;(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

(1) Fost. 43.
(*) 2 Hawk. P. C. 397.

(2) Ibid. 396.

() Salk. 499.

(") See book fi. page 254.
(a) 2 Hal. P. C. 409.
(6) See Appendix, 5.
(e) Finch, L. 478.

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.

A son born after the attainder may inherit if he has no elder brother living born before the attainder; otherwise the land will escheat pro defectu hæredis. 1 Hal. P. C. 358. -CHRISTIAN.

now 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, (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

[*404

And

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.(ƒ) 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) 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) It has been well observed() that it is of great importance that the punishment should follow the crime as early as possible; that the prospect of gratification or advantage which tempts a man to commit the crime should instantly awake the attendant idea of punishment. Delay of execution serves only to separate these ideas; and then the execution itself affects the minds of the spectators rather as a terrible sight than as the necessary consequence of transgression.

The sheriff cannot alter the manner of the execution by substituting one death

(d) Staundf. P. C. 182.

() 5 Mod. 22.

(1) See Appendix. 24.

() State Trials, vi. 332. Fost. 43.

(4) See Appendix, 3.

(1) See page 202.

(*) So held by the twelve judges, Mich. 10 Geo. III. (Beccar. ch. 19.

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 the learned commentator. At the end of the assizes the clerk of assize makes out in writing four lists of all the prisoners, with separate columns, containing their crimes, verdicts, and sentences, leaving a blank column, in which, if the judge has reason to vary the course of the law, he writes opposite the names of the capital convicts, 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 variations, as in Lancashire, no calendar is left with the gaoler, but one is sent to the secretary of state.

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.-CHRISTIAN.

2

But now, by stat. 1 Vict. c. 77, s. 1, no report is to be made to her majesty of the case of any capital convict at the central criminal court; but, by sect. 5, the court shall of its own authority direct execution to be done on offenders.-STEWART.

* See 3 Burr. 1812. And even the above statute is only directory as to awarding the day of execution, and does not render it an essential requisite. Russ. & R. C. C. 230.— CHITTY.

for another, without being guilty of felony himself, as has been formerly said.(m) It is held also *by Sir Edward Coke(n) and Sir Matthew Hale(0) that *405] even the king cannot change the punishment of the law by altering the hanging or burning into beheading; though when beheading is part of the sentence the king may remit the rest. And, notwithstanding some examples to the contrary, Sir Edward Coke stoutly maintains that "judicandum est legibus, non exemplis." But others have thought,(p) and more justly, that this prerogative, being founded in mercy, and immemorially exercised by the crown, is part of the common law. For hitherto, in every instance, all these exchanges have been for more merciful kinds of death; and how far this may also fall within the king's power of granting conditional pardons-viz., by remitting a severe kind of death, on condition that the criminal submits to a milder-is a matter that may bear consideration. It is observable that when lord Stafford was executed for the popish plot in the reign of king Charles the Second, the then sheriffs of London, having received the king's writ for beheading him, petitioned the house of lords for a command or order from their lordships how the said judgment should be executed; for, he being prosecuted by impeachment, they entertained a notion (which is said to have been countenanced by lord Russel) that the king could not pardon any part of the sentence.(q) The lords resolved(r) that the scruples of the sheriffs were unnecessary, and declared that the king's writ ought to be obeyed. Disappointed of raising a flame in that assembly, they immediately signified(s) to the house of commons, by one of the members, that they were not satisfied as to the power of the said writ. That house took two days to consider of it, and then(t) sullenly resolved that the house was content that the sheriff do execute lord Stafford, by severing his head from his body. It is further related, that when afterwards the same lord Russel was condemned for high treason upon indictment, the king, while he remitted the ignominious part of the *sentence, observed "that his lordship would *406] now find that he was possessed of that prerogative which in the case of lord Stafford he had denied him."(u) One can hardly determine (at this distance from those turbulent times) which most to disapprove of, the indecent and sanguinary zeal of the subject, or the cool and cruel sarcasm of the sovereign.

To conclude: it is clear that if, upon judgment to be hanged by the neck till he is dead, the criminal be not thoroughly killed, but revives, the sheriff must hang him again.(w) For the former hanging was no execution of the sentence; and, if a false tenderness were to be indulged in such cases, a multitude of collusions might ensue. Nay, even while abjurations were in force,(x) such a criminal, so reviving, was not allowed to take sanctuary and abjure the realm; but his fleeing to sanctuary was held an escape in the officer.(y)

And, having thus arrived at the last stage of criminal proceedings, or execution, the end and completion of human punishment, which was the sixth and last head to be considered under the division of public wrongs, the fourth and last object of the laws of England, it may now seem high time to put a period to these commentaries, which the author is very sensible have already swelled to too great length. But he cannot dismiss the student, for whose use alone these rudiments were originally compiled, without endeavouring to recall to his memory some principal outlines of the legal constitution of this country, by a short historical review of the most considerable revolutions that have happened in the laws of England from the earliest to the present times. And this task he will attempt to discharge, however imperfectly, in the next or concluding chapter.

(m) See page 179.

(*) 3 Inst. 52.

(°) 2 Hal. P. C. 412.

(P) Fost. 270. F. N. B. 244, h. 19 Rym. Fad. 284.

(9) 2 Hume. Hist of G. B. 328.

() Lords' Jour. Dec. 21, 1680.

(*) Com. Jour. Dec. 21, 1680.

(*) Ibid. Dec. 23, 1680.

(*) 2 Hume, 360.

(w) 2 Hal. P. C. 412. 2 Hawk. P. C. 463.
See page 326.

() Fitz. Abr. tit. Corone, 33. Finch, L. 467.

CHAPTER XXXIII.

OF THE RISE, PROGRESS, AND GRADUAL IMPROVEMENTS OF THE LAWS OF ENGLAND.

*BEFORE we enter on the subject of this chapter, in which I propose, [*407 by way of supplement to the whole, to attempt an historical review of the most remarkable changes and alterations that have happened in the laws of England, I must first of all remind the student that the rise and progress of many principal points and doctrines have been already pointed out in the course of these commentaries under their respective divisions; these having therefore been particularly discussed already, it cannot be expected that I should reexamine them with any degree of minuteness, which would be a most tedious undertaking. What I therefore at present propose is, only to mark out some outlines of our English juridical history, by taking a chronological view of the state of our laws and their successive mutations at different periods of time.

The several periods under which I shall consider the state of our legal polity are the following six: 1. From the earliest times to the Norman conquest; 2. From the Norman conquest to the reign of king Edward the First; 3. From thence to the reformation; 4. From the reformation to the *restoration of king Charles the Second; 5. From thence to the revolution in 1688; 6. From the revolution to the present time.

[*408

I. And, first, with regard to the antient Britons, the aborigines of our island, we have so little handed down to us concerning them with any tolerable certainty that our inquiries here must needs be very fruitless and defective. However, from Cæsar's account of the tenets and discipline of the antient Druids in Gaul, in whom centred all the learning of these western parts, and who were, as he tells us, sent over to Britain (that is, to the island of Mona or Anglesey) to be instructed; we may collect a few points which bear a great affinity and resemblance to some of the modern doctrines of our English law. Particularly the very notion itself of an oral, unwritten law, delivered down from age to age by custom and tradition merely, seems derived from the practice of the Druids, who never committed any of their instructions to writing, possibly for want of letters; since it is remarkable that in all the antiquities, unquestionably British, which the industry of the moderns has discovered, there is not in any of them the least trace of any character or letter to be found. The partible quality also of lands by the custom of gavelkind, which still obtains in many parts of England, and did universally over Wales till the reign of Henry VIII., is undoubtedly of British original. So likewise is the antient division of the goods of an intestate between his widow and children or next of kin; which has since been revived by the statute of distributions. And we may also remember an instance of a slighter nature mentioned in the present volume, where the same custom has continued from Cæsar's time to the present; that of burning a woman guilty of the crime of petit treason by killing her husband.1

The great variety of nations that successively broke in upon and destroyed. both the British inhabitants and *constitution, the Romans, the Picts, and after them the various clans of Saxons and Danes, must necessarily [*409 have caused great confusion and uncertainty in the laws and antiquities of the kingdom; as they were very soon incorporated and blended together, and therefore, we may suppose, mutually communicated to each other their respective usages, (a) in regard to the rights of property and the punishment of crimes. So that it is morally impossible to trace out with any degree of accuracy when the several mutations of the common law were made, or what was the respective original of those several customs we at present use, by any chemical resolution

(a) Hal. Hist. C. L. 62.

1 But this is now altered, by 9 Geo. IV. c. 31. See ante, p. 204.-CHRISTIAN.

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