2. The last and surest resort is in the sovereign's most gracious pardon; the granting of which is the most amiable prerogative of the crown. Law, indeed, cannot be framed on principles of compassion to guilt; yet justice, by the constitution of England, is bound to be administered in mercy, as is promised by the sovereign in the coronation oath. And the queen, therefore, may pardon all offences that are merely against the crown or the public. I say against the crown or the public, because, 1. The committing any man to prison out of the realm is, by the Habeas Corpus Act, a præmunire and unpardonable. 2. The crown cannot pardon where private justice is principally concerned in the prosecution; therefore the queen cannot pardon a common nuisance, while it remains unredressed, or so as to prevent an abatement of it, though afterwards she may remit the fine. Neither, lastly, can the crown pardon an offence against a popular or penal statute, after information brought: for thereby the informer has 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 the case of parliamentary impeachments; viz., that the royal pardon cannot be pleaded to any such impeachment, so as to stop the prosecution of great 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 the pardon so pleaded was illegal and void." 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, "that no pardon "under the Great Seal of England shall be pleadable to an impeach"ment by the commons in parliament." But, after the impeachment has been determined, it is not understood that the royal grace is further restrained or abridged: for, after the attainder of the six rebel lords in 1715, three of them were from time to time reprieved by the crown, and at length received a pardon.

A pardon must, until recently, have been issued under the great seal; but is now simply granted by warrant under the royal sign manual, countersigned by one of the principal secretaries of state. It may be absolute or conditional: that is, the sovereign 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 usually exerted in the pardon of felons, on condition of being confined to hard labour for a stated time, or of transportation to some foreign country for life, or for a term of years; such transportation or banishment being allow

able and warranted by the Habeas Corpus Act, 31 Car. II. c. 2, s. 14. When once granted, it may either be pleaded upon arraignment, or in arrest of judgment, or in bar of execution; and the effect of it 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 to give him a new credit and capacity.

CHAPTER XXX.

OF EXECUTION.

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 practised 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 writ from the crown. 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 to the prisoner's name, "let him be hanged by the neck;" formerly, in the days of Latin and abbreviation, sus. per coll.” for “suspendatur per collum." And this is the only warrant that the sheriff has for so material an act as taking away the life of another.

The sheriff is to do execution within a convenient time; the time and place of execution being by law no part of the judgment, whether for murder or any other offence. 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 tempts a man to commit the crime, should instantly awake the attendant idea of punishment. Delay of execution serves only to separate these ideas; and then the execution itself affects the minds of the spectators rather as a terrible sight than the necessary consequence of transgression.

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 into beheading; though when beheading is part of the sentence, the king may remit the rest.

But others have thought, and more justly, that this prerogative is part of the common law. When Lord Stafford was executed for the popish plot in the reign of Charles II., the then sheriffs of London, having received the king's writ for beheading him, petitioned the House of Lords for a command or order from their lordships how the said judgment should be executed; for, he being prosecuted by impeachment, they entertained a notion, which is said to have been countenanced by Lord Russell, that the king could not pardon any part of the sentence. The lords resolved that the scruples of the sheriffs were unnecessary, and declared that the king's writ ought to be obeyed. Disappointed of raising a flame in that assembly, they immediately signified to the House of Commons by one of the members, that they were not satisfied as to the power of the said writ. That house took two days to consider of it; and then sullenly resolved that the house was content that the sheriff do execute Lord Stafford by severing his head from his body. It is further related, that when afterwards the said Lord Russell was condemned for high treason upon indictment, the king, while he remitted the ignominious part of the sentence, observed, "that his lordship would now "find he was possessed of that prerogative which, in the case of Lord "Stafford he had denied him." One can hardly determine which most to disapprove of, the indecent and sanguinary zeal of the subject, or the cool and cruel sarcasm of the sovereign.

To conclude: it is clear that if, upon judgment to be hanged by the neck till 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; and if a false tenderness were to be indulged in such cases, a multitude of collusions might ensue. Nay, even while abjurations were in force, such a criminal so reviving was not allowed to take sanctuary and abjure the realm; but his fleeing to sanctuary was held an escape in the officer.

We have thus arrived at the last stage of criminal proceedings, or execution, the end and completion of human punishment, which was the sixth and last head to be considered under the division of public wrongs, the fourth and last object of the laws of England.

[APPENDIX.

APPENDIX.

WAGER OF BATTEL. [Ante, p. 381.]

TRIAL by wager of battel, vadiatio duelli, seems to have owed its origin to the military spirit of our ancestors, joined to a superstitious frame of mind; as it was in the nature of an appeal to Providence, under an apprehension and hope, however presumptuous and unwarrantable, that heaven would give the victory to him who had the right. The decision of suits by this appeal to the God of battles, is by some said to have been invented by the Burgundi, one of the northern or German clans that planted themselves in Gaul. And it is true, that the first written injunction of judiciary combats that we meet with, is in the laws of Gundebald, A.D. 501, which are preserved in the Burgundian code. Yet it does not seem to have been merely a local custom of this or that particular tribe, but to have been the common usage of all those warlike people from the earliest times. And it may also seem from a passage in Velleius Paterculus, that the Germans, when first they became known to the Romans, were wont to decide all contests of right by the sword: for when Quintilius Varus endeavoured to introduce among them the Roman laws and method of trial, it was looked upon, says the historian, as a "novitas incognitæ disciplina, ut solita armis decerni jure terminarentur.” And among the ancient Goths in Sweden we find the practice of judiciary duels established upon much the same footing as they formerly were in our own country.

This trial was introduced into England, among other Norman customs, by William the Conqueror; but was only used in three cases, one military, one criminal, and the third civil. The first in the court of chivalry and honour; the second in appeals of felony; and the third upon issue joined in a writ of right, formerly the last and most solemn decision of real property. For in writs of right the jus proprietatis, which is frequently a matter of difficulty, was in question; but other real actions being merely questions of the jus possessionis, which are usually more plain and obvious, our ancestors did not in them appeal to the decision of Providence. Another pretext for allowing it, upon these final writs of right, was also for the sake of such claimants as might have the true right, but yet by the

death of witnesses, or other defect of evidence, be unable to prove it to a jury. But the most curious reason of all is given in the Mirror, that it is allowable upon warrant of the combat between David for the people of Israel of the one party, and Goliah for the Philistines of the other party: a reason which Pope Nicholas I. very seriously decides to be inconclusive.

The last trial by battel that was waged in the court of common pleas at Westminster (though there was afterwards one in the court of chivalry in 1631, and another in the county palatine of Durham in 1638) was in the thirteenth year of Queen Elizabeth, A.D. 1571, as reported by Sir James Dyer, and was held in Tothill Fields, Westminster, "non sine magna juris consultorum perturbatione," saith Sir Henry Spelman, who was himself a witness of the ceremony. The form, as appears from the authors before cited, is as follows:

When the tenant in a writ of right pleads the general issue, viz., that he hath more right to hold than the demandant hath to recover, and offers to prove it by the body of his champion, which tender is accepted by the demandant; the tenant in the first place must produce his champion, who, by throwing down his glove as a gage or pledge, thus wages or stipulates battel with the champion of the demandant, who, by taking up the gage or glove, stipulates on his part to accept the challenge. The reason why it is waged by champions, and not by the parties themselves, in civil actions, is because, if any party to the suit dies, the suit must abate and be at an end for the present, and therefore no judgment could be given for the lands in question if either of the parties were slain in battel, and also that no person might claim an exemption from this trial, as was allowed in criminal cases, where the battel was waged in person.

A piece of ground is then in due time set out, of sixty feet square, enclosed with lists, and on one side a court erected for the judges of the court of common pleas, who attend there in their scarlet robes; and also a bar is prepared for the learned serjeants at law. When the court sits, which ought to be by sunrising, proclamation is made for the parties and their champions, who are introduced by two knights, and are dressed in a coat of armour, with red sandals, barelegged from the knee downwards, bareheaded, and with bare arms to the elbows. The weapons allowed them are only batons, or staves of an ell long, and a fore-cornered leather target; so that death very seldom ensued this civil combat. In the court military, indeed, they fought with sword and lance, according to Spelman and Rushworth; as likewise in France, only villeins fought with the buckler and baton, gentlemen armed at all points. And upon this and other circumstances, the president Montesquieu hath, with great ingenuity, not only deduced the impious custom of private duels upon imaginary points of honour, but hath also traced the heroic madness of knight-errantry, from the same original of judicial combats. But to proceed.

When the champions, thus armed with batons, arrive within the lists or place of combat, the champion of the tenant takes his adver