king's royal grace is farther reftrained or abridged: for, after the impeachment and attainder of the fix rebel lords in 1715, three of them were from time to time reprieved by the crown, and at length received the benefit of the king's most gracious pardon. 2. As to the manner of pardoning. 1. First, it must be under the great feal. A warrant under the privy feal, or fign manual, though it may be a fufficient authority to admit the party to bail, in order to plead the king's pardon, when obtained in proper form, yet is not of itself a complete irrevocable pardon. 2. Next, it is a general rule, that, wherever it may reasonably be prefumed the king is deceived, the pardon is void. Therefore any fuppreffion of truth, or fuggeftion of falsehood, in a charter of pardon, will vitiate the whole; for the king was misinformed. 3. General words have also a very imperfect effect in pardons. A pardon of all felonies will not pardon a conviction or attainder of fe- . lony; (for it is prefumed the king knew not of thofe proceedings) but the conviction or attainder must be particularly mentioned; and a pardon of felonies will not include piracy; for that is no felony punishable at the common law. 4. It is alfo enacted by statute 13 Ric. II. ft. 2. c. 1. that no pardon for treafon, murder, or rape fhall be allowed, unless the offence be particularly specified therein; and particularly in murder it fhall be expreffed, whether it was committed by lying in wait, affault, or malice prepenfe. Upon which fir Edward Coke obferves, that it was not the intention of the parliament that the king fhould ever pardon murder under these aggravations; and therefore they prudently laid the pardon under these restrictions, because they did not conceive it poffible that the king would ever excufe an offence by name, which was attended with fuch high aggravations. And it is remarkable enough, that there is no precedent of a pardon in the register for any other homicide, than that which happens fe defendendo or per infortunium: to which two fpecies the king's pardon was exprefsly confined by the ftatutes 2 Edw. III. c. 2. and 14 Edw. III. c. 15. which declare that no pardon of homicide fhall be granted, but only where the king may do it by the oath of his crown; that is to fay, where a man flayeth another in his own defence, or by misfortune. But the statute of Richard the second, before-mentioned, enlarges by implication the royal power: provided the king is not deceived in the intended object of his mercy. And therefore pardons of murder were always granted with a non obftante of the ftatute of king Richard, till the time of the revolution; when the doctrine of non obftante's ceafing, it was doubted whether murder could be pardoned generally: but it was determined by the court of king's bench, that the king may pardon on an indictment of murder, as well as a fubject may discharge an appeal. Under these and a few other reftrictions, it is a general rule, that a pardon fhall be 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 fubfequent, 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 ftated time, or of transportation to fome foreign country for life, or for a term of years; fuch transportation or banishment being allowable and warranted by the habeas corpus act, 31 Çar. II. c. 2. §. 14. and both the imprisonment and transportation rendered more easy and effectual by ftatutes 8 Geo. III. c. 15. and 19 Geo. III, C. 74: h 3. WITH regard to the manner of allowing pardons; we may observe, that a pardon by act of parliament is more be f Salk. 499. g 2 Hawk. P. C. 394. Transportation is faid (Bar. 352.) to have been first inflicted as a punishment, by ftatute 39 Eliz. c. 4. neâcial neficial than by the king's charter; for a man is not bound" to plead it, but the court must ex officio take notice of it1; 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 iffue, he has waived 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 arreft 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 fureties for the good behaviour before the sheriff and coroners of the county". But that ftatute 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 fuch pardon, to his good behaviour, with two fureties, for any term not exceeding feven years. 4. LASTLY, the effect of fuch 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 tranfcendent power of parliament. Yet if a perfon attainted receives the king's pardon, and afterwards hath a fon, that for may be heir to his father, because the father being made a new man, might tranfmit new inheritable blood: though, had he been born before the pardon, he could never have inherited at all ". Foft. 43: k 2 Hawk. P. C. 397. ▲ Ibid. 396. m Salk 499: ? CHAPTER THE THIRTY-SECOND. OF EXECUTION. T HERE now remains nothing to speak of, but execu tion: the completion of human punishment. And this, in all cafes, as well capital as otherwife, must be performed by the legal officer, the sheriff or his deputy; whose warrant for fo doing was antiently by precept under the hand and feal of the judge, as it is still practised in the court of the lord high steward, upon the execution of a peer a: though, in the court of the peers in parliament, it is done by writ from the king. Afterwards it was established, that, in cafe of life, the judge may command execution to be done without any writ. And now the ufage is, for the judge to fign the calendar, or list of all the prisoners' names, with their sepa-, rate 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, "fuf. per coll." for "fufpendatur per collum." And this is the only warrant that the fheriff has, for fo material an act as taking away the life of another. It may certainly afford matter of fpeculation, that in civil causes there fhould be fuch a variety of writs of execution to recover a trifling debt, iffued in the king's name, and under the feal of 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, fhould depend upon a marginal note. THE sheriff, upon receipt of his warrant, is to do execu tion within a convenient time; which in the country is alfo left at large. In London indeed a more folemn 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 perfon the case of the feveral prisoners, and receiving his royal pleasure, that the law must take it's course, iffues his warrant to the fheriffs; directing them to do execution on the day and at the place affigned. 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 difcretion of the fheriff. And, throughout the kingdom, by ftatute 25 Geo. II. c. 37. it is enacted that, in case of murder, the judge fhall in his fentence direct execution to be performed on the next day but one after sentence paffed. 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. fhould follow the crime as early as poffible; that the profpect of gratification or advantage, which tempts a man to commit the crime, fhould inftantly awake the attendant idea of punishment. Delay of execution ferves only to separate these ideas and then the execution itself affects the minds of the spectators rather as a terrible fight, than as the neceffary confequence of tranfgreffion. THE fheriff cannot alter the manner of the execution by fubftituting one death for another, without being guilty of felony himself, as has been formerly faid". It is held alfo f See append. §. 4. g St. Trials. VI. 332. Foft. 43. ↳ See append. §. 3. See pag. 202. k So held by the twelve judges, Mich. 10 Geo. III. 1 Beccar. ch. 19. m See pag. 179. by |