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Hobart, 294.

Hobart, f. 294.

says, that it is

so much as in

Sect. 39. It is holden by great (y) authorities, that if a person (3) Sum. 252. be convicted of manslaughter upon an appeal of death, the king 3 Inst. 237. may pardon the burning in the hand; for which this reason is cited 4 State given by Sir Edward Coke, that it is no part of the judgment at Trials, 382. the suit of the party, but a collateral and exemplary (2) punish- (3) But my Ld. ment inflicted by the statute of 4 Hen. 7. c. 13. But this is made a quære by (a) others, and the principal case wherein it is said to no part of the have been resolved, is very differently (b) reported, and was never judgment, nor adjudged (c): and the ground laid down, that the king may par- the nature of the don it because it is no part of the judgment at the suit of the punishment, but party, by which it seems admitted, that if it were part of the only a mark to notify that the judgment, the law would be otherwise, seems rather to make party may have against it than for it; for there are (d) precedents of express his clergy but judgments, quod cauterisetur in manu sua læva. Also it is (e) (a) Raym. 369, admitted, that where a defendant is to have a certain imprison- 370. ment, &c. at the suit of the party upon a statute, the king cannot Dyer, 202. 261. dispense with it except in some special (f) cases, wherein it C. Eliz. 464. (b) Bigging's may be reasonably intended that such imprisonment was given case, by the statute by way of satisfaction to the public justice only; 5 Coke, 50. in which case it seems agreed, (g) that the king may dispense with it, as it is said that he may with finding of sureties by one convict on the statute against trespasses in parks.

once.

C. Eliz. 632.
Moor, 571.

682.

(c) Raym. 371. (d) Rastal, 1.56.

Yet it is omitted 55. (e) 5 Coke, 50. Dyer, 261. 323. (ƒ) 3 Inst. 171. 237. 2 Inst. 200. 439. (g) Dyer, 258. 3 Inst. 171. 2 Inst. 200.

But it seems doubtful, whether the statute of 4 Hen. 7. c. 13. which appoints the burning of the hand, can well admit of such a construction; for the words are, "whereas upon trust of the pri"vilege of the church, divers have been more bold to commit "murder, &c. because they have been admitted to their clergy as "oft as they have offended; for avoiding of such presumptuous "boldness," it is enacted, "That every person not being in "orders, who hath once been admitted to his clergy, be not again "admitted thereto, and that every such person convict, &c. shall "be marked, &c." from whence it seems plain, that the statute expressly intends such marking as a discouragement of the offence; and it seems difficult to give a reason why it should be construed to mean it only as a collateral and not as a direct punishment.

(h) Sup. s. 35. Coke, 50.

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Neither doth it seem a plain reason, that because the statute intended it an exemplary punishment, the king may dispense with it for surely the execution of an appellee attainted of murder, and the perpetual imprisonment of a clerk delivered to the ordinary upon a conviction on an appeal, who could not make his purgation, were also exemplary punishments; and yet it is generally (h) agreed, that the king never could dispense with them. 200, whether And therefore upon the whole this seems to be a point that de- not pardon such

serves to be farther considered.

Dyer, 261. Yet it is made a quære, Dyer,

the king could

imprisonment.

Sect. 40. But granting that the king may pardon the burning () 5 Coke, 50. in the hand in an appeal, it seems a very reasonable (1) conse- Vide c. 33. quence, that the party shall immediately be delivered by force of C. Car. 596. the statute of 18 Eliz. c. 7. which says, that after burning he shall 597.

VOL. II.

N N

s. 131.

be Hobart, 294.

(k) 5 Co. 51. C. Eliz. 684.

C. Car. 113,
114.

(1) 5 Co. 51.
Winch, 125.
C. Jac. 335.
Hobart, 81.

Con. C. Eliz.
684.

(m) C. Jac. $35.
C. Car. 9.
Vide C. Car.
667, 668.
(n) 2 R. Abr.
304. 299.
5 Coke, 51.
Latch. 190.
Noy, 85. 91.

be delivered; which ought to have this construction, that he shall be delivered after burning, where he is to be burned.

Sect. 41. It seems to have been always agreed, (k) that the king's pardon will discharge any suit in the spiritual court ex officio.

Also it seems to be (1) settled at this day, that it will discharge any suit in such court ad instantiam partis pro reformatione morum, or salute animæ, as for defamation, or laying violent hands on a clerk, and such like; for such suits, like those in the starchamber, are in truth the suits of the king, though prosecuted by the party.

Also it seems to be (m) 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 (n) 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.

C. Car. 46, 47. Vide C. Car. 9. wherein it is holden, that an award of costs, though they have not been taxed, shall not be avoided by a pardon; but the other books seem contrary.

(0) 1 Jones, 227. 2 Roll. 178.

Con. adjudged,

C. Jac. 159.

Also, (o) if a person be imprisoned on a writ of excommunicato capiendo for his contumacy in not paying costs, and afterwards the king pardon all contempts, it seems, that he shall be disAnd it is made charged of such imprisonment without any scire facias against the a quære, C. Jac. party, because it is grounded on the contempt, which is wholly excommunica- pardoned; and the party must begin anew to compel a payment tion can be dis- of the costs.

212. whether an

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(p) 5 Coke, 51.

(q) Latch. 190. 5 Coke, 51.

C. Car. 46, 47.

Sect. 42. But it seems agreed, (p) that a pardon shall not discharge a suit in the spiritual court, any more than in a temporal, for a matter of interest or property in the plaintiff, as for tithes, legacies, matrimonial contracts, and such like.

Also it is (q) agreed, that after costs are taxed in a suit in such court at the prosecution of the party, whether for a matter of and the autho- private interest, or pro reformatione morum, or pro salute animæ, as for defamation, &c. they shall not be discharged by a subsequent pardon.

rities cited to the precedent section.

Sect. 43. If the offence be pardoned after costs are taxed, and then the defendant appeal to a superior court, which gives new costs, whether upon the affirmance or reversal of the first sen(r) C. Car. 46, tence, they shall (r) not be avoided by reason of the pardon, be

47.

Winch, 125.

cause they are not given in respect of the offence, but of the award of the former costs, which being taxed before the pardon, are not avoided by it, and therefore the appeal was proper for determining whether they were well given or not. But if the offence for which the suit was in the spiritual court be pardoned, hanging an appeal, and such pardon relate to a time precedent to the award of the costs, and after such pardon the appellant desert his appeal, and the spiritual court award costs against him in respect of such desertion,

desertion, it seems, (s) that he may have a prohibition, because (s) 2 R. Abr. the pardon having discharged the costs of the first suit as well as 304. the offence, made the appeal to be to no purpose. It is (t) said, Latch. 155. Noy, 85. that costs taxed to the party grieved for a contempt in a court of (t) 2 Ventris, equity are not discharged by a general pardon of all contempts, 194. because it is the common course of a court of equity to award such costs at the pleasure of the judge. But it hath been questioned, whether costs taxed by the prothonotary upon an attachment to the party grieved be not discharged by a general pardon of all contempts.

3

Sect. 44. It was insisted (u) by the house of commons in the (u) 2 St.Tr. 735. Earl of Danby's case, and it is enacted by 12 and 13 Will. 3. c. 2. Com. Jour. 28 "That no pardon under the great seal be pleaded to an impeach- May 5, 1679. April, 1679, & "ment by the commons in parliament." But after the im- Inst. 238. peachment is solemnly heard and determined, it is not understood (1) 4 Com. 399, that the king's royal grace is farther restrained or abridged (x); the speech of for after the impeachment and attainder of the six rebel lords in Mr. Lechmere 1715, three of them were from time to time reprieved by the in favour of the impeachment, crown, and at length received the benefit of the king's pardon.

As to the tenth particular, viz. Whether a pardon may be conditional.

393. Sed vide

6 State Tr. 4.

Sect. 45. It seems agreed, (y) that the king may extend his (y) Moor, 460. mercy on what terms he pleases, and consequently may annex to

his pardon any condition that he thinks fit, whether precedent or subsequent, on the performance whereof the validity of the pardon will depend.

As to the eleventh particular, viz. Where a pardon is void in respect of a wrong recital.

C. Jac. 18. 34.

Sect. 46. It being a general rule, (2) that wherever the king () Yelverton, appears to have been deceived, his grant is void, I take it to be 43. 47, 48. agreed, that if it appear from the recital of a pardon, that the king 2 R. Abr. 188. was misinformed either as to the (a) nature of the case, or the proceedings thereupon, the pardon is void; as where the (b) king pardons a man for felony whereof he stands indicted, or indicted and attainted, and in truth he never was indicted, &c.

Sect. 47. How a pardon of felony shall be avoided by statute in respect of a wrong suggestion, hath been already shewn, section the tenth.

As to the SECOND GENERAL POINT, viz. What is the effect of a pardon.

Dyer, 352.
C. Jac. 548.

(a) Raym. 13.
1 Siderfin, 41.
(b) 3 Inst. 238.

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(c) Vide
Keb. 940.
F. Corone, 154.
281.

Sect. 48. I take it to be settled at this day, that the pardon of a treason or felony, even after a conviction or attainder, does so far clear the party from the infamy and all other (c) consequences of his crime, that he may not only have an action (d) for a scandal 1 Assize, 3. in calling him traitor or felon after the time of the pardon, but C. Car. 55. may also be a good witness notwithstanding the (e) attainder or 1 Siderfin, 222. conviction; (d) Hobart, 67.

5 Coke, 49.

81, 82. Moor, 863. 872. 1 R. Abr. 87. Owen, 150. 1 Brownlow, 10. Raymond, 23. Con. Cro. Jac. 622. (e) 2 State Trials, 269. 3 State Trials, 552, 553. 585. 596. 610. 4 State Trials, 119. 5 Modern, 15, 16. Raymond, 369, 370. 2 Hale, 278. But the contrary is held, Bulstrode, 154. and 2 State Trials, 520 to 524. Raymond, 379, 580.

(f) Skinner, 578, 579.

conviction; because the pardon makes (ƒ) him as it were a new man, and gives him a new capacity and credit.

4 State Tr. 119.
Reilly's case, Cases C. L. 360.

(g) 4 St. Tr. 379 to 386.

(h) Sup. c. 33. sect. 129.

(i) By the lords

in the earl of

Warwick's trial,

5 State Trials, 167 to 173.

(j) Hobart, 67.

82.

(k) 3 St. Tr.

520 to 524.

1 Keble, 780.

Sect. 49. And it hath been (g) admitted, that the king's pardon of the burning of the hand on a conviction of manslaughter had the same effect as to this purpose, as the burning would have had, which is (h) agreed to restore the party to his credit.

Sect. 50. But it hath been adjudged, (i) that a pardon is of no manner of force, as to this purpose, till it have passed the great

seal.

Sect. 51. Also it is said, (j) that the pardon of a felony will not make an arrest for it, by one who did not know of the pardon, unlawful, because such arrests being for the public good are to be favoured; and therefore shall not be actionable by reason of such a pardon, as scandalous words shall be, because they deserve no favour.

66

And it is enacted by 4 Geo. 1. c. 11. S. 2. That where "any offender shall be transported, and shall have served his "term according to the order of the court, such service shall have "the effect of a pardon to all intents and purposes, as for the " crime for which he was so transported, and shall have so served."

Sect. 52. I do not (k) find it clearly settled, whether the pardon of a conviction of perjury makes the party a good witness.

5 Mod. 15, 16. Raymond, 369, 370. 379, 380. Kelynge, 37, 38 1 Siderfin, 52. 221, 222. S Levinz, 426. A pardon of perjury at common law restores the party to his credit and competency, Gilb. L. E. 142. Reilly's case, Cases in C. L. 360; but by 5 Eliz. c. 9. the king is by express words restrained from pardoning a perjury on the statute. Gilb. L. E. 142.

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Sect. 53. If a man be convicted, or deprived, or otherwise punished for an offence during a session of parliament, and at the same session an act passeth which pardons the offence, it seems agreed, (1) that the conviction or deprivation, &c. are ipso facto avoided; because the act taking effect from the first day of the session, (1) it now appears that the offence was pardoned at the time of the conviction, &c.

Also it hath been adjudged, that where an act of parliament expressly pardons such and such crimes from a certain day before the session, it thereby avoids all (m) convictions, and (n) deprivations, and (o) awards of costs and amerciaments (p), &c. for such crimes, whether such convictions, &c. were before or after the session, because it appears to be the intent of the parliament that such crimes shall no way be punished, which cannot take effect if such convictions, &c. continue in force.

Sect.

Keble, 780. 1'Siderfin, 164. 222. (0) Latch. 190. Noy, 91. 37 H. 6. 21. F. Chart. 22. 5 Coke, 49. Co. Litt. 126.

C.

has often been denied to be law, 1 Cro. Car. 47. (p) 36 H. 6. 24, 25. Jac. 64. Moor, 394. Cro. Eliz. 768. 778. Whether an excommunication be pardoned by a general pardon of all contempts, &c. sup. sect. 41.

(1) But all acts of parliament are now dated on the day on which they receive the royal assent and

are generally made to take effect from and after the passing, viz. from that day.

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2 Modern, 53.

Sect. 54. But it seems to be a settled (q) rule, that no pardon (9) 1 Levinz, 8.
by the king, without express words of restitution, shall divest, 120.
either from the king or (r) subject, an interest either in lands or 1 Keble, 695.
goods vested in them by an attainder or conviction preceding. 757.817.921,
Yet it seems (s) agreed, that a pardon prior to a conviction shall 922.
prevent any forfeiture either of lands or goods.

3 Modern, 101.
241, 242.
1 Saunders, 362, 363. 1 Siderfin, 167, 168. 264. Theloal. I. 1. c. 85. sect. 8. (r) Dyer, 34. Finch,
467. Theloal. I. 1. c. 15. sect. 3. ($) 5 Coke, 110. Owen, 87. 4 State Trials, 119. 2 Mod. 53.

1 Keble, 695.

Sect. 55. It hath been adjudged, (t) that a clause of release of (t) 1 Lev. 120.
"all judgments and executions" in a general pardon extends as 757.817.921,
well to debts due to the king by assignment or forfeiture, as to 922.
those originally due to him, and that it doth not restore them to 1 Saund. 362.
the person who assigned or forfeited them, but extinguishes them 1 Siderfin, 167.

in the hands of the debtor.

264.

Sect. 56. It seems agreed, that notwithstanding the king's par- (v) Sup. s.26.33.
don to a simonist coming into his church contrary to the purport Owen, 87, 88.
of 31 Eliz. c. 6. or to an officer coming into his office by a corrupt Co. Lit. 120.
(u) Het. 104.
bargain, contrary to the purport of 5 and 6 Edw. 6. c. 16. may Watson's
save (v) such clerk or officer from any criminal prosecution in re- clergyman's
spect of the corrupt bargain; yet it shall not (u) enable the clerk law, c. 5.
(w) 3 Inst. 154.
to hold the church, nor the (w) officer to retain the office, because 3 Bulst. 90, 91.
they are absolutely disabled by statute.

See Bk. 1.

p.

416.

1 Keble, 781.

a. 391.

Sect. 57. Also it seems (r) agreed, that the king's pardon can- (4) Co. Lit. 8.
not salve the corruption of blood (1) by attainder of treason or
felony.

1 Hale, 358. 2 Comm. 254.

As to the THIRD GENERAL POINT, viz. Whether a pardon
may be waived.

3 Inst. 233. 240,
241.

4 Comm. 395.

S. P. C. 173.

Sect. 58. I take it to be (y) agreed, that a general pardon by (y) See bk. 1.
parliament cannot be waived, because no one by his admittance p. 512.
can give a court a power to proceed against him, when it appears 169. 103.
there is no law to punish him.

11 H. 4. 41. B. Cor. 30. 200. Indict. 2. F. Cor. 89. Crompton, 116. Foster, 43.

Sect. 59. But it is (2) certain, that a man may waive the benefit
of a pardon under the great seal; as where one who has such a
pardon doth not plead it, but takes the general issue, after which
he shall not resort to the pardon.

B. Notice, 1.
26 H. 8. 7.
4 Comm. 394.

() S. P. C.

173. 169.
B. Corone, 200.

Kelynge, 24.

Jenk. Cent. 129.
Hale, 252.

Foster, 40. Wilson, 150. and vide the case of Rex v. Haines, Wilson, 214. where the benefit of an act
of grace was allowed after the general issue pleaded.

And now I am to shew in what manner a pardon is to be taken

advantage of; which I shall consider,

1. In relation to a general pardon by parliament.

2. In relation to a particular pardon under the great seal.

And

(1) But corruption of blood, except in cases of treason and murder, is abolished by st. 54 Geo. 3.
c. 145. see postea, tit. " forfeiture."

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