BOOK 4, CHAPTER 31 Of Reprieve, and Pardon

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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 sentence for an interval of time; whereby the execution is suspended. This may be, first, ex arbitrio judicis [in the judge’s discretion]; 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.1

REPRIEVES may also be ex necessitate legis [from legal necessity]: 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 favorem prolis [in favor of offspring]; and therefore no part of the bloody proceedings, in the reign of queen Mary, has 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.2 A barbarity which they never learned from the laws of ancient Rome; which direct,3 with the same humanity as our own, “quod praegnantis mulieris damnatae poena differatur, quoad pariat” [“the punishment of a condemned pregnant woman is deferred until delivery”]: which doctrine has also prevailed in England, as early as the first memorials of our law will reach.4 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 staid 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 has had the benefit of this reprieve, and been delivered, and afterwards becomes pregnant again, she shall not be entitled to the benefit of a farther respite for that cause.5 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 compos, between he judgment and the award of execution:6 for regularly, as was formerly7 observed, though a man be compos when he commits a capital crime, yet if he becomes non compos 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 “furiosus solo furore punitur” [“madness alone punishes a madman”], and the law knows not but he might have offered some reason, if 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 has 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, he 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 [instantly],8 and no time allowed the prisoner to make his defense or produce his witnesses, unless he will make oath that he is not the person attainted:9 neither shall any peremptory challenges of the jury be allowed the prisoner;10 though formerly such challenges were held to be allowable, whenever a man’s life was in question.11

II. 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.12 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 ancestors13 too be derived a lege suae dignitatis [from the law of his dignity]: and it is declared in parliament, by statute 27 Hen. VIII. c. 24. that no other person has power to pardon or remit any treason or felonies whatsoever; but that the king has 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 an exemption from punishment. Pardons (according to some theorists14) should be excluded in a perfect legislation, where punishments are mild but certain: for that 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;15 or else it must be held, 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 observes16) would oblige him very often to contradict himself, to make and to unmake his decisions: it would tend to confound all 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 nation see him personally engaged, it is only in 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, 1. The object of pardon: 2. The manner of pardoning: 3. The method of allowing a pardon: 4. 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 Car. II. c. 2. made a praemunire, unpardonable even by the king. Nor, 2. Can the king pardon, where private justice is principally concerned in the prosecution of offenders: “non potest rex gratiam facere cum injuria et damno aliorum.”17 [“The king cannot confer a favor by the injury and loss of others.”] Therefore in 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.18 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.19 Neither, lastly, can the king pardon an offense against a popular or penal statute, after information brought: for thereby the informer has acquired a private property in his part of the penalty.20

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. Therefore when, in the reign of Charles the second, 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,21 “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,22 “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 assigned23 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,24 “that a pardon is not pleadable in bar of an impeachment.” And, at length, it was enacted by the act of settlement, 12 & 13 W. III. c. 2. “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 attainder of the six rebel lords in 1715, 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 reasonably be presumed the king is deceived, the pardon is void.25 Therefore any suppression of truth, or suggestion of falsehood, in a charter of pardon, will vitiate the whole; for the king was misinformed.26 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:27 and a pardon of felonies will not include piracy;28 for that is no felony punishable at the common law. 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 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,29 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 [in self-defense] or per infortunium [by accident]: to 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 slays another in his own defense, 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 [notwithstanding] 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,30 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.31 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 banishment32 being allowable and warranted by the habeas corpus act, 31 Car. II. c. 2. §. 14. and rendered more easy and effectual by statute 8 Geo. III. c. 15.

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 [officially] take notice of it;33 neither can he lose the benefit of it by his own laches [delay] or negligence, as he may of the king’s charter of pardon.34 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.35 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. Anciently, by statute 10 Edw. 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.36 But that statute is repealed by the statute 5 & 6 W. & 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 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 has 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.37

NOTES

     1.    2 Hal. P. C. 412.

     2.    Fox, Acts and Mon.

     3.    Ff. 48. 19. 3.

     4.    Flet. l. 1. c. 38.

     5.    1 Hal. P. C. 369.

     6.    Ibid. 370.

     7.    See pag. 24.

     8.    1 Sid. 72.

     9.    Fost. 42.

   10.    1 Lev. 61. Fost. 42. 46.

   11.    Staundf. P. C. 163. Co. Litt. 157. Hal. Sum. 259.

   12.    Law of Forfeit. 99.

   13.    LL. Edw. Conf. c. 18.

   14.    Beccar. ch. 46.

   15.    Ibid. ch. 4.

   16.    Sp. L. b. 6. c. 5.

   17.    3 Inst. 236.

   18.    Ibid. 237.

   19.    2 Hawk. P. C. 391.

   20.    3 Inst. 238.

   21.    Com. Journ. 28 Apr. 1679.

   22.    Ibid. 5 May 1679.

   23.    Ibid. 26 May 1679.

   24.    Ibid. 6 Jun. 1689.

   25.    2 Hawk. P. C. 383.

   26.    3 Inst. 238.

   27.    2 Hawk. P. C. 383.

   28.    1 Hawk. P. C. 99.

   29.    3 Inst. 236.

   30.    Salk. 499.

   31.    2 Hawk. P. C. 394.

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

   33.    Fost. 43.

   34.    2 Hawk. P. C. 397.

   35.    Ibid. 396.

   36.    Balk. 499.

   37.    See Vol. II. pag. 254.

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