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taken most beneficially for the subject, and most strongly against the king.

A PARDON may also be conditional; that is, the king 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 daily 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 allowable and warranted by the habeas corpus act, 31 Car. II. c. 2. § 14., and both the imprisonment and transportation rendered more easy and effectual by statutes 8 Geo. III. c. 15. and 19 Geo. III. c.74. (2)

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3. WITH regard to the manner of allowing pardons: we may observe, that a pardon by act of parliament is more [ 402] beneficial than by the king's charter; for a man is not bound to plead it, but the court must ex officio take notice of it; neither can he lose the benefit of it by his own laches or negligence, as he may of the king's charter of pardon. The king's charter of pardon must be specially pleaded, and that at a proper time: for if a man is indicted, and has a pardon in his pocket, and afterwards puts himself upon his trial by pleading the general issue, he has waved the benefit of such pardon'. But, if a man avails himself thereof, as soon as by course of law, he may; a pardon may either be pleaded upon arraignment, or in arrest of judgment, or in the present stage of proceedings, in bar of execution. Antiently, by statute 10 Edw. III. c.2. no pardon of felony could be allowed, unless the party found sureties for the good behaviour before the sheriff and coroners of the county". (3) But that statute

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(5) And the party at the time of claiming the pardon, produced a writ

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is repealed by the statute 5 & 6 W. & M. c. 13., which, instead thereof, gives the judges of the court a discretionary power to bind the criminal, pleading such pardon, to his good behaviour, with two sureties, for any term not exceeding seven years.

4. LASTLY, the effect of such pardon by the king, 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 not so much to restore his former, as to give him a new credit and capacity. But nothing can restore or purify the blood when once corrupted, if the pardon be not allowed till after attainder, but the high and tran scendent power of parliament. Yet if a person attainted receives the king's pardon, and afterwards hath a son, that son may be heir to his father, because the father being made a new man, might transmit new inheritable blood; though, had he been born before the pardon, he could never have inherited at all". (4)

n See Vol. II. pag. 254.

out of chancery, commonly called a writ of allowance, testifying that he had complied with the statute, in finding sureties, &c. 2 Hawk, P. C.

c. 37. s. 70.

(4) That is, if the son so born after the pardon, has no brother born before the pardon, who survives the father. For if he has, neither can inherit; not the elder, because the operation of the pardon is not retrospective; nor the younger, because he has an elder brother living, who at one time by possibility might have inherited, and that possibility will be sufficient to prevent the inheritance of the younger brother. 1 Co. Litt. 8.a.

CHAPTER THE THIRTY-SECOND.

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 antiently 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 king b. 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 col." 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. It may certainly 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 [404] the court, without which the sheriff cannot legally stir one step; and yet that the execution of a man, the most important and terrible task of any, should depend upon a marginal note.

a 2 Hal. P. C. 409.

b See Append. § 5.

Finch. L. 478.

d Staundf. P. C.182.

e & Mod. 22.

THE sheriff, upon receipt of his warrant, is to do execution within a convenient time; which in the country is also left at large. In London, indeed, a more solemn and becoming exactness is used, both as to the warrant of execution, and the time of executing thereof: 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 it's course, issues his warrant to the sheriffs: directing them to do execution on the day and place assigned'. And, 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 discretion of the sheriff". And, throughout the kingdom, by statute 25 Geo. II. c. 37. it is enacted, that, in case of murder, the judge shall in his sentence direct execution to be performed on the next day but one after sentence passed'. But, otherwise, the time and place of execution are by law no part of the judgment. 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 as 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 [405] king cannot change the punishment of the law, by altering the hanging or burning into beheading; though, when beheading is part of the sentence, the king may remit the rest. And, notwithstanding some examples to the contrary, sir Ed

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ward Coke stoutly maintains, that "judicandum est legibus, "non exemplis." But others have thought, and more justly, that this prerogative, being founded in mercy, and immemorially exercised by the crown, is part of the common law. For, hitherto, in every instance, all these exchanges have been for more merciful kinds of death; and how far this may also fall within the king's power of granting conditional pardons, (viz. by remitting a severe kind of death, on condition that the criminal submits to a milder,) is a matter that may bear consideration. It is observable, that when lord Stafford was executed for the popish plot in the reign of king Charles the second, the then sheriffs of London, haying 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 [only]. It is further related, that when afterwards the same lord Russel was condemned for high treason upon indictment, the king, while he remitted the ignominious part of the sentence, ob[ 406 ] served, "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 (at this distance from those turbulent times) 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

P Fost. 270. F. N. B. 144. h. 19Rym.
Foed. 284.

92 Hum. Hist. of G. B. 328. 1st ed.
r Lords' Journ, 21 Dec. 1680.

• Com. Journ. 21 Dec. 1680.

Ibid. 23 Dec. 1680.

u

2 Hume, 360. 1st ed.

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