the suit, not of the king, but of the party injured), the prosecutor may release, but the king cannot pardon. Neither can he pardon a common nuisance while it remains unredressed, or so as to prevent an abatement of it, though afterwards he may remit the fine: because though the prosecution is vested in the king to avoid multiplicity of suits, yet (during its continuance) this offence savours more of the nature of a private injury to each individual in the neighbourhood than of a public wrong. Neither, lastly, can the king pardon an offence against a popular or penal statute after information brought: for thereby the informer hath acquired a private property in his part of the penalty. There is also a restriction of a peculiar nature that affects the prerogative of pardoning in case of parliamentary impeachments: viz., that the king's pardon cannot be pleaded to any such impeachment so as to impede the inquiry and stop the prosecution of great and notorious offenders. But, after the impeachment has been solemnly heard and determined, it is not understood that the king's royal grace is further restrained or abridged. Manner of Pardoning. 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 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 of attainder or felony (for it is presumed the king knew not of those proceedings), but the conviction of attainder must be particularly mentioned; and a pardon of felonies will not include piracy, for that is no felony punishable at the common law. 4. It is also enacted, by statute 13 Ric. II. st. 2, c. I, 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. 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. Conditional Pardon. 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 labor 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. 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; 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 waived 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. The Effect of Pardon. 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. 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 anciently by precept under the hand and seal of the judge, as it is still practiced 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 a 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 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 the prisoners' name, “let him be hanged by the neck;" formerly, in the days of Latin and abbreviation, "sus per coll." for "suspendatour 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 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. 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. The sheriff cannot alter the manner of the execution by substituting one death for another, without being guilty of felony himself, as has been formerly said. It is held also by Sir Edward Coke and Sir Matthew Hale that 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, and more justly, that this prerogative, being founded in mercy, and immemorially exercised by the crown, is part of the common law. To conclude: it is clear that if, upon judgment to be hanged by the neck until he is dead, the criminal be not thoroughly killed, but revives, the sheriff must hang him again. For the former hanging was no execution of the sentence. |