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[Thirdly, with regard to the manner of allowing pardons, we may observe, that a pardon by Act of Parliament is more 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(u); neither can he lose the benefit of it by his own laches or negligence, as he may of the king's charter of pardon (x). 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 not guilty, he has waived the benefit of such pardon (y). But if a man avails himself thereof, as soon as by course of law he may, a pardon may (as explained in a former place) either be pleaded upon arraignment, or in arrest of judgment, or in bar of execution (2). Antiently, by stat. 10 Edw. III. c. 2, no pardon of felony could be allowed unless the party found sureties for his good behaviour, before the sheriff and coroners of the county (a). But that statute is repealed by the statute 5 & 6 W. & M. c. 13 ; which, instead thereof, gives the judges of the court a discretionary power to bind the criminal, pleading such pardon, to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.
Fourthly, 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 new credit and capacity (6).] And crime on condition of his transpor- of the condition being transportatation beyond the seas, such offender tion beyond seas. See also 6 Geo. 4, shall be allowed the benefit of a con- c. 25, s. 1; 6 & 7 Vict. c. 7, and 16 ditional pardon, and an order shall & 17 Vict. c. 99. be made by the court for his imme- (u) Fost. 43. diate transportation. And by 20 & (2) Hawk. P.C. b. 2, c. 37, s. 59. 21 Vict. c. 3, whenever mercy shall (y) Hawk. P. C. b. 2, c. 37, s. 67. be so extended on condition of his (7) Vide sup. p. 404. being kept in penal servitude, such (a) R. v. Parsons, 1 Show. 283. extension of mercy shall have the (0) Hawk. P. C. b. 2, c. 37, s. 48. same effect, as formerly in the case
it seems to be settled that the pardon of treason or felony will enable a man to have an action of slander against any one who shall thenceforth call him either traitor or felon(c): and, also, that, on accepting a pardon from the Crown, the offender cannot refuse to give evidence respecting the offence pardoned, on the ground of possible danger to himself therefrom if he should be afterwards impeached for the same offence by the House of Commons-unless, indeed, there should be in fact some reasonable ground for his apprehension that such a proceeding is impending (d).
(c) Hawk. P. C. b. 2, c. 37, s. 48.
[THERE now remains nothing to speak of but executionthe completion of human punishment(a). And this, must be performed by the legal officer, that is, 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 (6): though, in the court of the peers in parliament, it is done by writ from the king. But afterwards it was established, that in case of life, the judge may command execution to be done without
any writ(c). And now the usage is, for the judge, in the case of trials at the assizes, 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 his warrant or authority; and, if the sheriff receives afterwards no special order to the contrary, he executes the judgment of the law accordingly (d).
(a) Vide sap. p. 344 and 466, n.(a). “ported, &c. These four calendars, (0) 2 Hale, P. C. 409.
“ being first carefully compared to(c) Finch, L. 478.
"gether by the judge and the clerk (d) See R. v. Bethel, 5 Mod. 22; “ of assize, are signed by them, and Christian's Blackstone, vol. iv. p. 404, one is given to the sheriff, one to in notis, where it is said that, " at “the gaoler, and the judge and the “ the end of the assizes the clerk of “ clerk of assize each keep another. “ the assize makes out in writing “ If the sheriff receives afterwards “ four lists of all the prisoners, with no special order from the judge,
separate columns, containing their “ he executes the judgment of the “ crimes, verdicts and sentences, “ law in the usual manner, agreeably “ leaving a blank column, which the “ to the directions of his calendar. “ judge fills up opposite the names In every county this important “ of the capital convicts by writing “ subject is settled with great de“ to be repriered, respited, trans- “ liberation by the judge and the
[The sheriff, upon receipt of his warrant, is to do execution within a convenient time ; which is left at large (e). But in the Queen's Bench, if the prisoner be tried at the bar, or brought there by habeas corpus, a rule is made for the execution; either specifying the time or leaving it to the discretion of the sheriff(s). And though in general the law has established no rule as to the time of execution after judgment, it has been well observed, that it is of great importance that the punishment should follow the crime as early as possible; and that the prospect of gratification or advantage which tempts a man to commit the crime, should instantly awake the attendant idea of punishment (g).
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 (h). It was held also by Sir Edward Coke (i) and Sir Matthew Hale (k), that even the king could not change the punishment of the law, by altering hanging or burning into beheading; though, when beheading was part of the sentence, the king might remit the rest. And, notwith
“ clerk of assize before the judge “ leaves the assize town; but pro
bably in different counties with some slight variations."
(e) The time of the exccution is by law no part of the judgment (see 4 Bl. Com. 404, where this is said to have been held by the twelve judges, Mich. 10 Geo. 3). As to the place of execution it is now, in all executions for murder, required by the 31 Vict. c. 24, to be within the walls of the prison in which be shall be confined at the time of execution (vide sup. p. 76).
(f) St. Trials, vi. 332; Fost. 43. See Atkinson v. Reg. (in error), 3 Bro. P. C. 517; Mansell v. The Queen, 8 Ell. & Bl. p. 84.
It may be remarked that in London the course as to execution on convicts formerly was, that the recorder reported to the king, in person, their several cases; and, if he received the royal pleasure that the law must take its course, issued his warrant to the sheriffs, directing them to do execution at a specified time and place (4 Bl. Com. 404.) But now by 7 Will. 4 & 1 Vict. c. 77, the practice of the Central Criminal Court, as to the award of execution in capital cases, is assimi, lated to that of other courts.
(9) Beccar. c. 19.
[standing some examples to the contrary, Sir Edward Coke stoutly maintains, that “judicandum est legibus, non exemplis.” But others have thought that this prerogative, being founded in mercy, and immemorially exercised by the Crown, was part of the common law (1). 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, 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 (m). The lords however resolved, that the scruples of the sheriffs were unnecessary, and declared that the king's writ ought to be obeyed (n). 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(o). 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 (p). It is further related, that when afterwards the same 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”(9). 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.
(1) Fost. 270; F. N. B. 144, h; 19 Rym. Fæd. 284.
(m) 2 Hume, 328.
(6) Com. Journ. 21 Dec. 1680. (v) Com. Journ. 23 Dec. 1680. (9) 2 Hume, 360.