« PreviousContinue »
or by act of parliament, as mat. ter of favour.
tenderness to life and liberty, are not much to the credit or advancement of the national justice (2). These writs of error, to reverse judgments in case of misdemesnors, are not to be allowed of course, but on sufficient probable cause shewn to the attorney general; and then they are understood to be grantable of common right, and ex debito justitiæ. But writs of error to reverse attainders in capital cases are only allowed ex gratiá ; and not without express warrant under the king's sign manual, or at least by the consent of the attorney general (c). These, therefore can rarely be brought by the party himself, especially where he is attained for an offence against the state : but they may be brought by his heir, or executor, after his death, in more favourable times ; which may be some conso
lation to his family. But the easier, and more effectual way, is, or by act of par. Lastly, to reverse the attainder by Act of Parliament. This
may be and hath been frequently done, upon motives of compassion, or perhaps from the zeal of the times, after a sudden revolution in the government, without examining too closely into the truth or validity of the errors assigned. And sometimes, though the crime be universally acknowledged and confessed, yet the merits of the criminal's family shall after his death obtain a restitution in blood, honours, and estate, or some, or one of them, by Act of Parliament, which, so far as it extends, has all the effect of reversing the attainder, without casting any reflections upon the justice of the preceding sentence.
The effect of falsifying, or reversing, an outlawry is that the the party is ré. party shall be in the same plight as if he had appeared upon same situation the capias : and, if it be before plea pleaded, he shall be put
to plead to the indictment; if after conviction, he shall receive a judgment or the sentence of the law: for all the other proceedings, except served, the pare only the process of outlawry for his non-appearance, *remain never accused. good and effectual as before. But when judgment, pronounced [*393] upon conviction, is falsified or reversed, all former proceed
ings are absolutely set aside, and the party stands as if he had
Where outlaw. ry is reversed,
stored to the
is if he had appeared to the capias ; where
(c) i Vern. 170, 175.
(2) Vide ante 306, note (7), 376, note (1), where it will be seen that the informalities mentioned in the text, no
longer furnish grounds for reversing a judgment.
never been at all accused; restored in his credit, his capacity, his blood, and his estates : with regard to which last, though they be granted away by the crown, yet the owner may enter upon the grantee, with as little ceremony as he might enter upon a disseisor (d). But he still remains liable to another prosecution for the same offence : for, the first being erroneous, he never was in jeopardy thereby.
OF REPRIEVE AND PARDON.
Reprieve and pardon.
1. Reprieve is ex arbitrio ju.
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. vel . A reprieve, from reprendre, to take back, is the withdicis, on various drawing of a sentence for an interval of time: whereby the
execution is suspended. This may be, first, ex arbitrio judicis ; 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 offence be within clergy; or sometimes if it be a small felony, or any favourable 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 gaol delivery, although their session be finished, and their commission expired: but this rather by common usage, than of strict
right (a). es necessitate Reprieves may also be ex necessitate legis : as, where a pregnancy, &c. ; woman is capitally convicted, and pleads her pregnancy;
though this is no cause to stay the judgment, yet it is to respite 1*3957 the execution till she be delivered. This is a mercy *dictated
by the law of nature, in favorem prolis; and therefore no part of the bloody proceedings, in the reign of queen Mary, hath 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 by-standers, after some deliberation of the priests who assisted at the sacrifice, they cast it again into the fire as a young heretic (6). A barbarity which they never learned from the laws of ancient Rome ; which direct (c), with the same hu
manity as our own, " quod prægnantis mulieris damnatæ pona differatur, quoad pariat (1):" which doctrine has also prevailed in England, as early as the first memorials of our law will reach (d). 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 stayed 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 hath had the benefit of this reprieve, and been delivered, and afterwards becomes pregnant again, she shall not be entitled to the benefit of a further respite for that cause (e). 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 (2) (3).
Another cause of regular reprieve is, if the offender become or on the ground non compos, between the judgment and the award of execu- doubt of identi. tion (f): for regularly, as was formerly (g) 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 [*396] be ordered for execution : for, “furiosus solo furore punitur," 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 inter
of insanity, or
(d) Flet. I. 1, c. 38.
(f) 1 Hal. P. C. 370.
- - - - . (1) That the punishment of a preg- should happen that she become quick nant woman shall be delayed, until she of a second child, this surely is as much has been delivered.
an object of compassion and humanity (2) It is usual for the clerk of assize as the first.--CH. to ask women, who receive sentence of (3) There is also the reprieve called death, if they have any thing to say, “er mandato regis," or from the mere why execution shall not be awarded pleasure of the crown, expressed in according to the judgment. As the any way to the court by whom execuexecution of the law in the first in- tion is to be awarded; see 1 Hale, stance is respited not from a regard for P. C. 368; 2 id. 412; 2 Hawk. P. C. the mother, but from tenderness to- c. 51, 5 8. As to reprieves in general, wards the innocent infant ; if then it see 1 Chit. Cr. L. 757-62.
venes between the attainder and the award of execution, to demand of the prisoner what he hath 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 (4). Or, the party 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 empannelled 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 (h), and no time allowed the prisoner to make his defence or produce his witnesses, unless he will make oath that he is not the person attainted (i): neither shall any peremptory challenges of the jury be allowed the prisoner (j); though formerly such challenges were held to be allowable, wherever a man's life was in question (k).
(h) 1 Sid. 72. See Append. $ 3.
(k) Staundf. P. C. 163; Co. Litt. 157; Hall. Sum. 259.
(4) As to the treatment of insane hended to his Majesty's person; and persons generally, vide ante, 24-5, notes if a jury so find, the lord chancellor (2) (3) and (4). As to the arraignment may take order for the safe custody of and trial of insane persons, vide 39 the lunatic as long as there is reason & 40 Geo. III. c. 94, SS 1 & 2, set to apprehend such danger. With reout ante 324, note (5). By S 3 of the ference to the third section of this stasame statute, persons suspected of in- tute, it was very recently held by the sanity, and of committing a crime, may court of K. B., that a warrant of combe committed by a justice of the peace, mitment stating that “ A. had been without bail, except by two justices, discovered and apprehended under cirone of whom shall be the justice who cumstances that denoted a derangeissued the warrant, or by the quarter ment of mind, and a purpose of comsessions, or by one of the judges, or by mitting a crime, (that is to say, an asthe lord chancellor, lord keeper, or sault and breach of the peace,) for lords commissioners of the great seal. which, if committed, he would be liable And by $ 4, where there is reason to to be indicted, and that it appeared to apprehend danger to his Majesty's per the justice that he ought to issue a son from the intrusion of any lunatic, warrant for committing him as a danand this appears upon his examination gerous person, suspected to be insane," before the privy council, or one of the sufficiently expressed the cause of comsecretaries of state, the lord chancellor mitment, within the meaning of the may issue a commission of lunacy to statute ; and the court refused to disinquire whether such person is insane, charge the prisoner; ex parte Gourlay, and whether danger may be appre- 1 M. & R. 619; 7 B. & C. 669.