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appeals of all kinds, which are the suit, not of the king, but of the party injured, the prosecutor may release, but the king cannot pardon.
(3.) Nor can he pardon a common nuisance, while it remains unabated, though he may remit the fine.
(4.) Nor can he pardon an offence against a penal statute, after information brought; for thereby the informer has acquired a private property in his part of the penalty.
In Impeachments. The king's pardon cannot be pleaded in cases of parliamentary impeachments, so as to impede the inquiry, and stop the prosecution of notorious offenders. By statute of William III, no pardon shall be pleadable to an impeachment by the commons in parliament. But after the impeachment has been solemnly heard and determined, the king may, in his discretion, grant a pardon.
2. Manner of Pardoning. (1) It must be under the great seal. A warrant under the privy seal or sign manual, though it may suffice to admit a party to bail, in order to plead the king's pardon, is not of itself a pardon.
(2) If the king has been 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 will have an imperfect effect in pardons. A pardon of all felonies will not pardon a conviction or attainder of felony, but the conviction or attainder must be particularly mentioned ; and a pardon of felonies will not include piracy, for that felony is not punishable at common law.
(4) No pardon for treason, murder or rape, shall be allowed, unless the offence be particularly specified therein ; and particularly in murder shall it be expressed, whether it was committed by lying in wait, assault or malice prepense. There is no precedent of a pardon in the register for any other homicide, than that which happens se defendendo or per infortunium. It is a 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. Which prerogative is frequent): exerted in the pardon of felons, on condition of being confined to hard labor for a stated time, or of transportation for life, or for a term of years.
3. Manner of Allowing Pardons. 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 laches or negligence, as he may of the king's charter of pardon. The king's pardon must be specially pleaded at the proper time, otherwise it will be deemed waived. The judges have a discrètionary power to bind the criminal, pleading such pardon, to his good behavior, for a term not exceeding seven years.
4. Effect of Pardon. A pardon by the king makes the offender a new man, and acquits him of all corporal penalties and forfeitures annexed to that offence, for which he obtains his pardon. But nothing can restore the blood, when once corrupted, if the pardon be not allowed until after attainder, but the high power of parliament. Yet if a person attainted receives the king's pardon, and afterwards has a son, that son may be heir to his father; because the father being made a new man, might transmit new inheritable blood; but if he had been born before the pardon, he would never have inherited at all.
Order of the Judge. In all cases, capital as otherwise, the execution 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 ; though in the court of peers in parliament, it is done by writ from the king. The present 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. In a capital felony, it is written opposite the prisoner's name, "suspendatur per collum,” let him be hanged by the neck.
1 These statutes are repealed.
The Gallows. The sheriff, upon receipt of his warrant, is to do execution within a convenient time. It is of great importance, that the punishment should follow the crime as early as possible. The sheriff cannot alter the manner of execution, by substituting one death for another, without being guilty of felony himself. Even the king cannot do this, in the opinion of both Coke and Hale. If the hanging do not result in death, and the criminal revives, the sheriff must hang him again.
CHAPTER XXXIII.-RISE AND PROGRESS OF THE
LAWS OF ENGLAND.
Six Periods. 1. To the Norman conquest.
2. To the reign of Edward 1.
6. To the present time. I. ANCIENT BRITONS.
Who they were. These were the aborigines of the island, of whom we know but little. We learn, from Caesar's account, of the tenets and discipline of the ancient Druids in Gaul, in whom centered all the learning of these western parts; and who were sent over to Britain, at least to the island of Mona or Anglesea, to be instructed.
The Druids. The tenets of the Druids on some points bear a resemblance to some of the modern doctrines of English law. The very notion of an oral, unwritten law, handed down from age to age by custom and tradition merely, seems derived from the practice of the Druids, who committed no instructions to writing, possibly for want of letters. In all the British antiquities, no trace of a character or letter appears. The partible quality also of lands by the custom of gavelkind, is of British original. So likewise is the ancient division of the goods of an intestate, between his widow and children, or next of kin, which has since been revived by the statutes of distribution.
Result of Invasions. The variety of nations, that successively invaded England, the Romans, the Picts, and afterwards the Saxons and Danes, must necessarily have caused great confusion and uncertainty in the laws and antiquities of the kingdom. As they soon became blended, they probably mutually communicated their usages, in regard to the rights of property and the punishment of crimes; hence it is impossible to trace with accuracy the several mutations of the common law, and tell from which of these nations any special custom was derived.
Blending of Different National Customs. Such investigation is impracticable from the nature of traditional laws in general; which, being accommodated to the exigencies of the times, suffer by degrees insensible variations in practice, rendering it impossible to define the precise period of the alterations. It is also impracticable from the antiquity of the kingdom and its government, unless we had authentic monuments thereof, as the Jews had by the hand of Moses. Another reason for this uncertainty of the true origin of particular customs, must in part have arisen from the means whereby Christianity was propagated among our Saxon ancestors in this island; by learned foreigners, brought from Rome and elsewhere, who carried with them their own national customs. They probably prevailed upon the state to abrogate such usages as were inconsistent with religion, and to introduce many that were conformable thereto. Hence, we find some rules of the Mosaical, and also of the imperial and pontifical laws adopted in our system.
The English Heptarchy. Another reason for the great variety and uncertain original of our ancient, established customs, even after the Saxon government was formed, was the subdivision of the kingdom into the heptarchy; composed of seven independent kingdoms, governed by different clans and colonies, which created an infinite diversity of laws. This was true, even though the colonies of Angles, Jutes, Anglo-Saxons and the like originally sprang from the same mother country, the great northern hive, which swarmed all over Europe in the sixth and seventh centuries.
Alfred the Great, When therefore the West Saxons had
swallowed up the rest, and Alfred succeeded to the monarchy of England, which his grandfather Egbert had founded, his mighty genius prompted him to new model the constitution, so that it should endure for ages, and out of discordant materials to form one uniform whole. This he effected, by reducing the entire kingdom under one regular and gradual subordination of government, wherein every man was answerable to his immediate superior for his own conduct and that of his nearest neighbors. To him we owe that masterpiece of judicial polity, the subdivision of England into tithings and hundreds, if not into counties; all under the influence and administration of one supreme magistrate, the king, in whom all the executive authority of the law lodged, and from whom justice was dispersed to every part of the nation; which wise institution has been preserved to the present time.
Institution of Courts by Alfred. Like Theodosius, he collected the various customs in the kingdom, and reduced and digested them into one uniform system or code of laws in his Dom-bec or liber judicalis. This he compiled for the use of the court-baron, hundred and county court, the court-leet and sheriff's tourn; tribunals, established by him for the trial of all causes, civil and criminal, in the districts where the complaint arose; all of them subject to the inspection and control of the king's own courts, under the universal or common law. The king's courts were then itinerant; being kept in the king's palace, and removing with his household from one end of the kingdom to the other.
Danish and Saxon Laws. The Danish invasion, which introduced foreign customs, was a severe blow to this noble fabric; but upon the expulsion of these intruders, the English returned to their ancient law, retaining a few customs of their late visitants, which were termed Dane Lage, as the code compiled by Alfred was called West-Saxon Lage, and the laws of the kingdom of Mercia, which obtained in the countries next to Wales, were termed the Mercen Lage.
Origin of the Common Law, Edgar, who founded the English navy, and was also an excellent civil governor, observing the ill effect of three distinct bodies of laws in separate parts of his kingdom, projected, what his grandson, Edward the Confessor, completed; one uniform digest of laws, being a revival of