General pardon. TO G. 2. . 52. Special pardon. The power of pardoning offences is inseparably incident to, and is the most amiable prerogative of, the crown: and this high prerogative the king is entrusted with upon a special confidence, that he will spare those only whose case (could it have been foreseen) the law itself may be presumed willing to have been excepted out of its general rules; which the wisdom of man cannot possibly make so perfect as to suit every particular case. 1 Show. 284. Pardons are either general or special: general, are by act of parliament; of which, if they are without exceptions, the court must take notice ex officio: but if there are exceptions therein, the party must aver that he is none of the persons excepted. 3 Inst. 233. Hale's Sum. 252. By stat. 20 G. 2. c. 52. for the king's general pardon; all persons are pardoned and discharged from certain crimes committed prior to June 15. 1647; with certain exemptions in the said act mentioned. And the like for the most part hath been enacted by former statutes of general pardon; together also with the exceptions of several persons by name. Special pardons, are either of course, as to persons convicted of manslaughter, or se defendendo, and by divers statutes to those who shall discover their accomplices in several felonies; or of grace, which are by the king's charter, of which the court cannot take notice ex officio, but they must be pleaded. 3 Inst.233. By the 27 Ed. 3. c. 2. In every charter of the pardon of felony, Pardon to con the suggestion and the name of him that maketh the suggestion shall be comprised; and if it be found untrue the charter shall be disallowed. 27 Ed. 3. c. 2. tain the sug gestion. Pardon to spe For wherever it may reasonably be presumed that the king was deceived, the pardon is void. Therefore, any suppression of truth or suggestion of falsehood in a charter of pardon will vitiate the whole. 2 Haw. c. 37. § 12. 3 Inst. 238. And by the 13 R. 2. st. 2. c. 1. No charter of pardon shall be cify the offence. allowed for murder, treason or rape, unless the offence be specified therein. 2 Inst. 233.236. The king cannot pardon an offence before it is committed. Cannot pardon a nuisance. Lord Coke says, the intention of this act was not, that the king should grant a pardon of murder by express name in the charter, but because the whole parliament conceived that he would never pardon murder by special name. And he says, he hath never seen any pardon of murder by any king of England, by express name. It was however determined in the court of K. B. that the king may pardon on an indictment for murder, as well as a subject may discharge an appeal. 1 Salk. 499. See Vol. I. p. 85. The king cannot pardon an offence before it be committed; but such pardon is void. 2 Haw. c. 37. § 28. And in some cases, even where the king is sole party, some things there are which he cannot pardon; as for example, for all common nuisances, as for not repairing bridges or highways, the suit (for avoiding multiplicity of suits) is given to the king only for redress and reformation thereof; but the king cannot pardon or discharge either the nuisance, or the suit for the same; because such pardon would take away the only means of compelling a redress of it. But it hath been holden by some, that a pardon of such offence will save the party from any fine for the time precedent to the pardon. 3 Inst. 237. Haw. c. 37. 33. And surely, a fine being a mulct to the king, and not a forfeit- But may remit ure to the party grieved, may be by the king remitted. the fine. By the act of settlement, 12 & 13 W. c. 2. no pardon, under In case of an the great seal of England, shall be pleadable to an impeachment impeachment. by the Commons in parliament. But it seems after the impeachment solemnly heard and determined, the royal grace is not farther restrained or abridged; for that to pardon delinquents convicted on impeachment is as ancient as the constitution. 4 Blac. Com. 400. n. 2. But in the case of an impeachment, after the lords have delivered their sentence of guilty, the commons can pardon the party by declining to demand judgment against him; for no judgment can be pronounced by the lords, till it be demanded by the commons. 4 Blac. Com. 400. n. 2. Thus also, if one be bound by recognisance to the king to keep the peace against another by name, and generally all other lieges of the king; in this case, before the peace be broken, the king cannot pardon or release the recognisance although it may be made only to him, because it is for the benefit and safety of his subjects. 1 Inst. 238. Cannot discharge a recog nisance. Likewise, after an action popular is brought as well for the king Cannot release.. as for the informer, according to any statute, the king can but an information discharge his own part, and cannot discharge the informer's part; qui tam. because by bringing the action the informer hath an interest therein; but before the action brought, the king may discharge the whole, (unless it be provided to the contrary by the act,) because the informer cannot bring an action or information originally for his part only, but must pursue the statute. And if the action be given to the party grieved, the king cannot discharge the same. 3 Inst. 231. It seems to have been always agreed that the king's pardon will discharge any suit in the spiritual court ex officio. Also it seems to be settled at this day, that it will discharge any suit in such court at the instance of the party, for the reformation of manners, or welfare of the soul, as for defamation, or laying violent hands on a clerk, and suck like; for such suits are in truth the suits of the king, though prosecuted by the party. Also it seems to be agreed that if the time to which such pardon hath relation be prior to the award of costs to the party, it shall discharge them. And it seems to be the general tenor of the books, that though it be subsequent to the award of the costs, yet if it be prior to the taxation of them, it shall discharge them; because nothing appears in certain to be due for costs before they are taxed. 1 Haw. c. 37. §41. But it seems agreed that a pardon shall not discharge a suit in the spiritual court any more than in the temporal, for a matter of interest or property in the plaintiff; as for tithes, legacies, matrimonial contracts, and such like. Id. § 42. If the king release to a man all debts, this shall not discharge his co-debtor; but otherwise it is in case of a subject, for in that case the release to one discharges both. 3 Inst. 239. May dicharge suit in the spi ritual court. Doth not by releasing a man release his partner. Person pardoned may be bound to good behaviour. Pardon do not restore lands or goods for feited. Doth not re store the corruption of blood. Doth restore the credit. How in cases of perjury. At common law or by statute. Lord Warwick's St. Tri. 1015. 58 G. 3. c. 29. Fees for pardons to be paid by the treasury, By 5 W. 3. c. 13. When a pardon is pleaded by any one for felony, the justices may at their discretion remand him to prison till he enter into recognisance, with two sureties, for his good behabiour, for any time not exceeding seven years. It seems to be a settled rule that no pardon by the king, without express words of restitution, shall divest either from the king or subject an interest either in lands or goods vested in them by an attainder or conviction precedent: yet it seems agreed, that a pardon prior to a conviction shall prevent any forfeiture either of lands or goods. 2 Haw. c. 35. § 54. A pardon after the attainder doth not restore the corruption of blood; for this cannot be restored but by act of parliament. 3 Inst. 233. But as to issue born after the pardon, it hath the effect of the restitution of blood. 1 Hale, 358. It seems to be settled at this day that the pardon of treason or felony, even after a conviction or attainder, doth so far clear the party from the infamy and all other consequences of his crime, that he may not only have an action for a scandal in calling him traitor or felon after the time of the pardon, but may also be a good witness, notwithstanding the attainder or conviction; because the pardon makes him, as it were, a new man, and gives him a new capacity and credit. 2 Haw. c. 37. § 48. But it seems to be the better opinion that the pardon of a conviction of perjury doth not so restore the party to his credit as to make him a good witness; because it would be an injury to the people in general to make them subject to such a person's testimony. 1 Vent. 349. Touching a pardon for perjury, this difference is to be taken; that where a party is convict upon the statute, it is part of the judgment to be disabled; but at common law, it is only a consequential disability; therefore in the latter case the king may pardon, and that restores the party to his testimony; otherwise in the former, for in that case he must reverse the judgment, or cannot be restored. R. v. Greepe, 2 Salk. 574. A pardon must be under the great seal. A warrant under the privy seal, or sign manual, though it may be a sufficient authority to admit the party to bail, in order to plead the king's pardon when obtained in proper form, yet it is not of itself a complete irrevocable pardon. Gully's case, 1 Leach, 98. By stat. 58 G. 3. c. 29. (for regulating the payment of fees for pardons under the great seal.) It is enacted that no fee, gratuity or other dues, paid or payable for or in respect of any grant of a pardon by his majesty, his heirs and successors, or for or in respect of any letters patent, charter, warrant, bill, docket or other instrument appertaining thereto, or the transcript of any such instrument, shall be paid or payable by or on behalf of the person or persons in whose favour or to whom such pardon shall be granted; but that all fees which are now paid and payable for the granting and passing of any such pardon or pardons, shall be paid by the lords commissioners of his majesty's treasury of the United Kingdom of Great Britain and Ireland, in the same manner and by the same persons as other law expenses on behalf of his majesty are paid. § 2. Enacts, that from and after the passing of this act, no such and the instru letters patent, charter, warrant, bill, docket, instrument or trans- ment to be cript as aforesaid, shall be subject to or liable to be charged with exempt from any stamp duty or duties whatever. as stamp duties. tenced to death by a naval By the 37 G. 3. c. 140. § 1. If his majesty shall be pleased to 37 G. 3. c. 140. extend his mercy to any offender, liable to the punishment of Of pardon to death, by the sentence of a naval court-martial, upon condition persons senof transportation, or of transporting himself beyond seas, or on condition of being imprisoned within any gaol in Great Britain, court-martial. or on condition of being kept to hard labour in any gaol, or house of correction, or penitentiary house, or on any river; it shall be lawful for any justice of K. B., C. B., or baron of the exchequer, of the degree of the coif, upon such intention of mercy aforesaid, being notified in writing by one of his majesty's principal secretaries of state, to allow to such offender the benefit of such conditional pardon as shall be expressed in such notification, in the same manner as if a conditional pardon had passed for that purpose under the great seal. And if the condition be of transportation, or of transporting himself, such justice or baron shall make order, as he might in cases under the 24 G. 3. st. 2. c. 56. If the condition be of imprisonment, or being kept to hard labour, the pardon shall be allowed as aforesaid, and such justice or baron shall order imprisonment or hard labour, according to the notification of pardon from such secretary, as he might do by the 19 G. 3. c. 74. The pardon, of the crown office, K. B. to be proof of the By f 2. The justice or baron who shall allow such pardon, and make such order under such notification, shall direct the notification and his own order to be filed, in the office of the clerk of the crown of the court of K. B. By f 4. The said clerk of the crown shall upon the application A certificate of any such offender who shall accept his majesty's pardon, or of from the clerk any other person applying on his behalf, or on application of any person on the behalf of his majesty, deliver a certificate in writing under his hand, containing an account of the christian name and pardon. surname of such offender, of his offence, of the place where the court was held, before whom he was convicted, and of the terms and conditions on which pardon was given him, which certificate shall be sufficient proof of the conviction and sentence of such offender, and also of the terms on which such pardon was granted, in any court, and in any proceeding in which it may be necessary to enquire into the same. Officiating ministers to keep registers of public and private baptisms, of marriages and of burials. vide suitable books for that purpose. Parish Registers. [52 Geo. 3. c. 146.] 52 G. 3. c. 146. BY stat. 52 G. 3. c. 146. after reciting that "whereas the amending the manner and form of keeping and of preserving registers of baptisms, marriages and burials of his majesty's subjects in the several parishes and places in England, will greatly facilitate the proof of pedigrees of persons claiming to be entitled to real or personal estates, and be otherwise of great public benefit and advantage;" it is enacted, that from and after the 31st of December, 1812, registers of public and private baptisins, marriages and burials, solemnized according to the rites of the united church of England and Ireland, within all parishes or chapelries in England, whether subject to the ordinary, or peculiar, or other jurisdiction, shall be made and kept by the rector, vicar, curate or officiating minister of every parish (or of any chapelry where the ceremonies of baptism, marriage and burial have been usually and may according to law be performed) for the time being, in books of parchment, or of good and durable paper, to be provided by his majesty's printer as occasion may require, Parishes to pro- at the expense of the respective parishes or chapelries; whereon shall be printed, upon each side of every leaf, the heads of information herein required to be entered in the registers of baptisms, marriages, and burials respectively, and every such entry shall be numbered progressively from the beginning to the end of each book, the first entry to be distinguished by number one; and every such entry shall be divided from the entry next following by a printed line according to the forms contained in the schedules (A.) (B.) (C.) hereto annexed; and every page of every such book shall be numbered with progressive numbers, the first page being marked with the number 1. in the middle of the upper part of such page, and every subsequent page being marked in like manner with progressive numbers, from number 1. to the end of the book. § 2. And, for better ensuring the regularity and uniformity of such register books, a printed copy of this act, together with one book so prepared as aforesaid, and adapted to the form of the register of baptisms prescribed in the schedule (A.) to this act annexed; and also one other book so prepared as aforesaid, and adapted to the form prescribed for the register of marriages in the sche dule (B.) to this act annexed; and also one other book so prepared as aforesaid, and adapted to the form prescribed for the register of burials in the schedule (C.) to this act annexed, shall be provided and transmitted by his majesty's printer to the officiating ministers of the several parishes and chapelries in England respectively, who are hereby required to use and apply the same in and to the purposes of this act; and such books respectively shall be proportioned to the population of the several parishes and chapelries, according to the last returns of such population made under the authority of parliament; and other books of like form and quality shall for the like purposes be furnished from time to time by the churchwardens or chapelwardens of every parish or chapelry, at the expense of the said parish or chapelry, whenever they shall be required by the rector, vicar, curate or officiating minister to King's printer to transmit to cach parish a printed copy of this act, and register books adapted to the forms herein prescribed. |