menu_book Chapter 49

CHAPTER XXXI. 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. 1. A reprieve, from reprende, to take back, is the withdrawing of a sentence for an interval of time whereby the execution is suspended. This may be, first, ex arbitrio judicious, either before or after judgment, as where the judge is not satisfied with the verdict, or the evidence is suspicious, or the indictment is insufficient, or he is doubtful whether the offense be within clergy,

or sometimes, if it be a small felony or any favorable circumstances appear in the criminal's character in order to give room to apply to the Crown for either an absolute or conditional pardon. These arbitrary reprieves may be granted or taken off by the justices of jail delivery, although their session be finished and their commission expired, but this rather by common usage than of strict right. reprieves may also be ex necessitate legis as where a woman is capitally convicted and pleads her pregnancy though this is no cause to stay the judgment yet it is to respite the execution till she be delivered this is a mercy dictated by the law of nature in favorum prollis and therefore no part of the bloody proceedings in the reign of queen mary hath been more justly detested than the cruelty that was exercised in the island of guernsey of burning a woman big with child and when through the violence of the flames the infant sprang forth at the stake and was preserved by the bystanders after some deliberation of the priests who assisted at the sacrifice they cast it again into the fire as a young heretic

a barbarity which they never learned from the laws of ancient rome which direct with the same humanity as our own quod praegnantis mulieris domnate poena deferator quod which doctrine has also prevailed in england as early as the first memorials of our law will reach in case this plea be made in stay of execution the judge must direct a jury of twelve matrons or discreet women to inquire the fact and if they bring in their verdict quick with child for barely with child unless it be alive in the womb is not sufficient execution shall be stayed generally till the next session and so from session to session till either she is delivered or proves by the course of nature not to have been with child at all but if she once hath had the benefit of this reprieve and been delivered and afterwards becomes pregnant again she shall not be entitled to the benefit of a father respite for that cause for she may now be executed before the child is quick in the womb and shall not by her own incontinence evade the sentence of justice another cause of regular reprieve is if the offender become non compost between the judgment and the award of execution

for regularly as was formerly observed though a man be compost when he commits a capital crime yet if he becomes non compost after he shall not be indicted if after indictment he shall not be convicted if after conviction he shall not receive judgment if after judgment he shall not be ordered for execution for furioso solo furare punitor and the law knows not but he might have offered some reason in his senses to have stayed these respective proceedings it is therefore an invariable rule when any time intervenes between the attainder and the award of execution to demand of the prisoner what he hath to allege why execution should not be awarded against him and if he appears to be insane the judge in his discretion may and ought to reprieve him or the party may plead in bar of execution, which plea may be either pregnancy, the king's pardon,

an act of grace, or diversity of person, viz., that he is not the same that was attainted, and the like. In this last case, a jury shall be impaneled to try this collateral issue, namely, the identity of his person, and not whether guilty or innocent, for that has been decided before. And in these collateral issues the trial shall be instanter, and no time allow the prisoner to make his defense or produce his witnesses unless he will make oath that he is not

the person attainted. Neither shall any peremptory challenges of the jury be allowed to the prisoner, though formerly such challenges were held to be allowable whenever a man's life was in question. 2. If neither pregnancy, insanity, non-identity, nor other plea will avail to avoid the judgment and stay the execution consequent thereupon, the last and surest resort is in the king's most gracious pardon, the granting of which is the most amiable prerogative of the crown. Laws, says an able writer, cannot be framed on principles of compassion to guilt, yet justice, by the Constitution of England, is bound to be administered in mercy. This is promised by the king in his coronation oath, and it is that act of his government which is the most personal and most entirely his own.

The king himself condemns no man. That rugged task he leaves to his courts of justice, the great operation of his scepter, is mercy. His power of pardoning was said by our Saxon ancestors to be derived a lege sue dignitatis, and it is declared in Parliament by Statute 27 Henry VIII C. 24 that no other person hath power to pardon or remit any treason or felonies whatsoever, but that the king hath the whole and sole 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 magistrate who has it in his power to extend mercy wherever he thinks it is deserved, holding a court of equity in his own breast to soften the rigor of the general law in such criminal cases as merit and exemption from punishment. Pardons, according to some theorists, should be excluded in a perfect legislation where punishments are mild but certain, for the clemency of the prince seems a tacit disapprobation of the laws. But the exclusion of pardons must necessarily introduce a very dangerous power in the judge or jury that of construing the criminal law by the spirit instead of the letter, or else it must be holden, what no man will seriously avow, that the situation and circumstances of the offender, though they alter not the essence of the crime, ought to make no distinction in the punishment.

In democracies, however, this power of pardon can never subsist, for there nothing higher is acknowledged than the magistrate who administers the laws, and it would be impolitic for the power of judging and of pardoning to center in one and the same person. This, as the President Montesquieu observes, would oblige him very often to contradict himself, to make and to unmake his decisions, it would tend to confound all the ideas of right among the mass of the people, as they would find it difficult to tell whether a prisoner were discharged by his innocence or obtained a pardon through favor. In Holland, therefore, if there be no stadtholder, there is no power of pardoning lodged in any other member of the state. But in monarchies, the king acts in a superior sphere, and though he regulates the whole government as the first mover, yet he does not appear in any of the disagreeable or invidious parts of it. Whenever the nations see him personally engaged, it is only in the works of legislature, magnificence, or compassion.

to him therefore the people look up as the fountain of nothing but bounty and grace and these repeated acts of goodness coming immediately from his own hand endear the sovereign to his subjects and contribute more than anything to root in their hearts that filial affection and personal loyalty which are the sure establishment of a prince under this head of pardons let us briefly consider one the object of pardon two the manner of pardoning three the method of allowing a pardon or the effect of such pardon when allowed 1. And first, the King may pardon all offenses merely against the Crown or the public, excepting, 1. That to preserve the liberty of the subject, the committing any man to prison out of the realm is by the Habeas Corpus Act, 31 Charles II, C.2, made a primonary unpardonable even by the King. nor, too, can the king pardon where private justice is principally concerned in the prosecution of offenders.

Non potest rex gratiam saccare cum ignoria et damno aliorum. Therefore, in appeals of all kinds which are of 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 offense favors more of the nature of a private injury to each individual in the neighborhood than of a public wrong. Neither, lastly, can the king pardon an offense against the popular or penal statute after the 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, is 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. Therefore, when in the reign of Charles II the Earl of Danby was impeached by the House of Commons of high treason and other misdemeanors, 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 therefore 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 discourage 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 twelve and thirteen william the third c two that no pardon under the great seal of england shall be pleadable to an impeachment by the commons in parliament but after the impeachment has been solemnly heard and determined it is not understood that the king's royal grace is farther restrained or abridged for after the impeachment and the tinder of the six rebel lords in seventeen fifteen 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, it is a general rule that wherever it may be reasonably 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. 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 piracy, for that is no felony punishable at the common law. It is also enacted by Statute 13 Richard II ST2C1 that no pardon for treason, murder, or rape shall be allowed unless the offense 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 offense 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 species the king's pardon was expressly confined by the statutes II Edward III C. II and XIV Edward III C. XV, 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 defense or by misfortune. But the statute of Richard II 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-abstantes 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 the 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 be also 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 transportation to some foreign country, usually to some of His Majesty's colonies and plantations in America, for life or for a term of years, such transportation or banishment being allowable and warranted by the Habeas Corpus Act 31 Charles II C2 S14 and rendered more easy and effectual by Statute 8 George III C15. 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 latches 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 an arrest of judgment or in the present stage of proceedings in bar of execution. Anciently, by Statute 10 Edward III C. 2, no pardon of felony could be allowed unless the party found sureties for the good behavior before the sheriff and coroners of the county. But that statute is repealed by the Statute 5 and 6 William and Mary C. 13, which instead thereof gives the judges of the court a discretionary power to bind the criminal pleading such pardon to his good behavior 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 offense 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. End of chapter the 31st