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 attribute of mercy is one of the great advantages and blessings of monarchy in general, above any other form of government; that there is a supreme governor who has it in his power to extend mercy wherever he thinks it is deserved: who holds, as it were, a court of equity in his own breast, to soften the rigour of the general laws, in such criminal cases as merit an exemption from punishment. According to some enthusiastic theorists, pardon should be excluded in a perfect legislation, where punishments are mild but certain; because, say they, the clemency of the prince seems a tacit disapprobation of the law. 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 or circumstances of the offender (though they make no alteration in the essence of the crime), ought to make no distinction in the punishment. In demo cratic or republican governments, this point of pardon can nowhere subsist for in such, no one is acknowledged higher than the judge who administers the law; and it would be impolitic for the power of judging and of pardoning also, to centre in one and the same person. This, says Montesquieu,* would oblige him very often to contradict himself: to make and unmake his own decisions; it would tend to confound all ideas of right and wrong among the mass of the people: as they would find it difficult to distinguish whether a prisoner were discharged by his innocence, or obtained a pardon through favour. Formerly in Holland, when there was no Stadtholder, there was no power of pardoning offenders, so it was all judgment and no mercy. But in monarchies, the king acts in a superior sphere, and though he regulates the whole government as the first mover, yet he never appears in any of its disagreeable or invidious parts. Whenever the nation sees him personally engaged, it is always in works of legislation, magnificence, or mercy and compassion. To him, therefore, the people look up as the gracious fountain of mercy and bounty; and these constant acts of goodness coming immediately from his own hand, endear the sovereign to his people as their father and protector, and contribute more than any thing to root in their hearts that filial affection and personal loyalty, which are the marks of a religious and obedient people, and the sure establishment of a paternal monarch. With respect to the objects of pardon, the king may pardon all offences merely against the crown, or the public generally, with some exceptions to this general rule: as, for instance, to preserve the liberty of the subject, the committing any man to prison out of the realm, is, by the Habeas * Spirit of Laws, b. vi. c. 5. Corpus act made a premunire, and unpardonable even by the king himself; neither can the king pardon where private justice is principally concerned. There is also a restriction of a peculiar nature that affects the prerogative of pardoning in cases 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 II., the earl of Danby was impeached of high treason by the house of commons, 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 persons impeached by the commons of high treason or other crimes, depending the impeachment," and thereupon 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 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,† 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, the king's royal grace is then not farther restrained for after the impeachment and attainder of the six 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. After the lords have delivered their sentence of guilty, it is in the power of the commons to pardon the impeached convict, by refusing to demand judgment against him; for no judgment can be pronounced by the lords till it is demanded by the commons. It was formerly a matter of doubt whether or not a dissolution of parliament abated an impeachment. But after a very full and learned discussion of the question in the impeachment of Warren Hastings, it was decided by a very large majority in both houses, that the dissolution did not abate the impeachment. Indeed, it is obvious that were a dissolution of parliament to render an impeachment by the commons of England void, a corrupt minister would always resort to this measure to shelter himself from the violence of the storm that had gathered round him, and which he plainly saw would eventually burst over his head and overwhelm him with disgrace and ruin. * 31 Car. II., c. 2. † 12 & 13 W. and M., c. 2. A pardon must be under the great seal of England. If there be any suppression of the truth, or suggestion of falsehood in a charter of pardon, the validity of the whole is destroyed; because it is to be inferred, that the king has been deceived on the subject, otherwise he would not have granted the pardon. As general records in pardons have but a very imperfect effect, it is necessary that the conviction and attainder be particularly specified. So also in cases of treason or murder, no pardon shall be allowed, unless the defence be accurately described therein. And in murder, it must be clearly expressed whether the crime was committed by lying in wait, assault, or malice prepense. By the recent statute to which we have so frequently appealed, it is declared, that when the king shall be pleased to extend mercy to any offender convicted of any felony punishable with death or otherwise, and by warrant under the sign-manual, countersigned by one of the principal secretaries of state, shall grant to such offender either a free or conditional pardon; the discharge of such offender out of custody, in the case of a free pardon, and the performance of the condition in the case of a conditional pardon, shall have the effect of a pardon under the great seal, as to the felony for which such pardon shall be so granted. This statute also contains an express condition, that neither a free nor a conditional pardon shall prevent or mitigate the punishment to which the offender might otherwise be lawfully sentenced on a subsequent conviction for any felony committed after the granting of such pardon. extend his mercy on A pardon may be conditional; that is, the king may what terms he pleases, and may annex to his bounty a condition either precedent or subsequent, on the performance of which the validity of the pardon will depend; which prerogative is daily exerted in the pardon of felons, on condition of their being confined to hard labour for a stated time, or of transportation to some foreign country for life, or a term of years. The punishment of transportation was first resorted to in England in the year 1597, being the thirty-ninth year of the reign of Elizabeth. The king's pardon by charter must be specially pleaded at a proper time, that is either upon arraignment or in arrest of judgment, or in bar of execution. The necessary effect of the king's pardon is to make the offender a new man, by acquitting him of all corporal penalties and forfeitures, the consequences of his crime, and to give him a new credit and capacity. Attainder corrupts the blood, and if the pardon is not granted before that takes place, the polluted stream can only be purified by an act of parliament. But if the attainted person have a son and who has no elder brother living born before the attainder, that son may inherit his father's property; yet if he had been born prior to the grant of the pardon, he never * 7 & 8 Geo. IV. c. 28 could have inherited at all, and the land will escheat pro defectu hæredis. Yet if an attainted person 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. EXECUTION. We are now called on to witness a most affecting scene; the humiliating and terrible completion of a capital offender's punishment. Execution, in all cases, as well capital as otherwise, must be performed by the legal officer, the sheriff, or his deputy whose warrant was anciently by precept, under the judge's hand and seal, as it is still practised in the court of the lord high steward on the execution of a peer; though in the court of the peers in parliament, it is done by writ from the king. It was afterwards established, that in case of life, the judge may command execution to be done without any writ. And the usage now is for the judge to sign the calendar or list of all the prisoner's names, with their separate judgments in the margin, which is left with the sheriff. As for a capitai 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, the writing was "sus sus per coll," for "suspendatur per collum." And these words are the sheriff's only warrant for so important an act as to deprive a fellow creature of life. It may 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 should depend on a marginal note. In a note on this place, professor Christian says, 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 the assize makes out 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 clerk of assize each keep another. If the sheriff does not afterwards receive a 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 variation: as in Lancashire, where 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 on condition of transportation or some other punishment: which recommendation is always attended to. On receipt of this warrant, the sheriff is to do execution on the criminal within a convenient time; which in the country is also left at large. A more becoming and solemn exactness is, however, used in London, both as to the warrant itself and its execution; 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 of which the following is a copy : : Warrant of execution on judgment of death, at the general gaol-delivery, in London and Middlesex. } To the sheriff of London, and to the sheriff of the county of Middlesex, and to the keeper of his majesty's gaol of Newgate. WHEREAS, at the session of gaol-delivery of Newgate, for the city of London and county of Middlesex, holden at Justice-Hall, in the Old Bailey, on the nineteenth day of October last, Patrick Mahony, Roger Jones, Charles King, and Mary Smith, received sentence of death, for the respective offences in their several indictments mentioned: Now, IT IS HEREBY ORDERED, that execution of the said sentence be made and done upon them, the said Patrick Mahony and Roger Jones, on Wednesday, the ninth day of this instant month of November, at the usual place of execution. AND it is his majesty's command, that execu tion of the said sentence upon them, the said Charles King and Mary Smith, be respited, until his majesty's pleasure touching them be farther known. GIVEN under my hand and seal this fourth day of November, one thousand eight hundred and thirty three, JAMES EYRE, Recorder, L. S. 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, or leaving it to the sheriff's discretion. And throughout the kingdom, in cases of murder, the judge in his sentence shall direct execution to be done on the next day but one after sentence passed. It has been held, however, by a majority of the judges, that the statute * enacting this course is merely directory as to the time of execution; and that notwithstanding the statute, the judge may order a prisoner convicted of murder to be executed immediately, or at any other time within forty-eight hours, as in other cases of capital convictions. The time and place of execution are not part of the judgment by any law, as has been held by the twelve judges. 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 tempted *25 Geo. II., c. 37. |