Page images
PDF
EPUB
[ocr errors]

.

.

[ocr errors]
[ocr errors]

.

Page Slave-Trade and Slavery

533 | Transportation. Spring-Guns

535 Traverse Stage-Coaches

536 Treason Stamps

561 Treasure Found . Statutes

634 Trespasses Stocks

652 Trial Stocks in the Funds and of Compa- Vagrants nies

652 | Venue Stocking-Frames

653 Wales Stores, Naval and Military

653 Warrant of Apprehension Summons

670 | Watch Surety of the Peace .

671 Weights and Measures Surety for the Good Behaviour 680 Whipping, Punishment of Swearing

693 Wife Taxes, Assessed, &c. .

697 Witchcraft Thames

890 Witnesses . Thread

916 Women Threats

916 Wood Time.

924 | Woollen Manufacture Tithes.

927 Wreck . Tobacco .

938 Conclusion Torn

939

Page 941 956 961 967 968 968 971 981 982 984

999 . 1001

1021 1022 1026 1027 1027 · 1028

1031.. * 1042 * 1071

[ocr errors]

.

[ocr errors]
[ocr errors]

.

[ocr errors]
[ocr errors]

.

.

.

.

[ocr errors]
[ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small]

[27 Edw. III. c. 2; 13 Rich. II. st. 2, c. 1; 5 Wil. c. 13; 12 & 13 Wil. c. 2;

20 Geo. II. c. 52; 30 Geo. III. c. 47; 37 Geo. III. c. 140; 58 Geo. III. c.

29; 6 Geo. IV. c. 25; 7 & 8 Geo. IV. c. 28, s. 13; 9 Geo. IV. c. 32.)
A PARDON is a work of mercy, whereby the king, either before the attain- What.
der, sentence, or conviction, or after, forgiveth any crime, offence, punish-
ment, execution, right, title, debt, or duty, temporal or ecclesiastical. '3 Inst.
233.

The power of pardoning offences is inseparably incident to, and is the Granted by king.
most amiable prerogative of, the crown; and this high prerogative the King
is entrusted with upon a special confidence that he will spare those only
whose case (could it have been foreseen) the law itself may be presumed
willing to have been excepted out of its general rules; which the wisdom of
man cannot possibly make so perfect as to suit every particular case. 1 Show.
284.

By the 30 Geo. III. c. 47, the king may empower the governor or

* As to pardons in general, see dered ; and see 3 Inst, 233 to 240;
1 Chit. C. L. 762 to, 777, where the 2 Hawk. c. 37; Com, Dig. Pardon.
law relative thereto is very fully consi-

VOL, V.

B

[ocr errors]

General pardon.

name.

Special pardon.

What pardonable. Offence before comunitted. Nuisances.

Fines.

lieutenant-governor of any place to which convicts are transported, to remit the term of transportation.

Pardons are either general or special: general, are by act of Parliament; of which, if they are without exceptions, the court must take notice er officio : but if there are exceptions therein, the party must aver that he is none of the persons excepted. 3 Inst. 233. Hule's Sum. 252.

By the 20 Geo. II. c. 52, for the king's general pardon, all persons are pardoned and discharged from certain crimes committed prior to June 15, 1647; with certain exemptions in the said act mentioned.

And the like for the most part hath been enacted by former statutes of general pardon; together, also, with the exceptions of several persons by

Special pardons are either of course, as to persons convicted of manslaughter, or se defendendo, and by divers statutes to those who shall discover their accomplices in several felonies; or of grace, which are by the king's charter, of which the court cannot take notice er officio, but they must be pleaded. 3 Inst. 233.

As to what offences are pardonable in general, see 1 Chit. C. L. 672.

The king cannot pardon an offence before it be committed; and such pardon is void. 2 Haw. c. 37, s. 28.

And in some cases, even where the king is sole party, some things there are which he cannot pardon : as, for example, for all common nuisances, as for not repairing bridges or highways, the suit (for avoiding multiplicity of suits) is given to the king only for redress and reformation thereof; but the king cannot pardon or discharge either the nuisance, or the suit for the same; because such pardon would take away the only means of compelling a redress of it. But it hath been holden by some, that a pardon of such offence will save the party from any fine for the time precedent to the pardon. 3 Inst. 237. 2 Huw. c. 37, s. 33.

And surely, a fine being a mulct to the king, and not a forfeiture to the party grieved, may be by the king remitted.

By the act of settlement, 12 & 13 Wil. III. c. 2, no pardon, under the great seal of England, shall be pleadable to an impeachment by the Commons in Parliament. But it seems, after the impeachment solemnly heard and determined, the royal grace is not farther restrained or abridged; for that to pardon delinquents convicted on impeachment is as ancient as the constitution. 4 Blac. Com. 400, n. 2.

But in the case of an impeachment, after the Lords have delivered their sentence of guilty, the Commons can pardon the party by declining to demand judgment against him; for no judgment can be pronounced by the Lords till it be demanded by the Commons. 4 Blac. Com. 400, n. 2.

Thus also, if one be bound by recognisance to the king to keep peace against another by name, and generally all other lieges of the king, in this case, before the peace be broken, the king cannot pardon or release the recognisance, although it may be made only to him, because it is for the benefit and safety of his subjects. 1 Inst. 238.

Likewise, after an action popular is brought as well for the king as for the informer, according to any statute, the king can but discharge his own part, and cannot discharge the informer's part; because by bringing the action the informer hath an interest therein : but before the action brought, the king may discharge the whole, (unless it be provided to the contrary by the act,) because the informer cannot bring an action or information originally for his part only, but must pursue the statute. And if the action be given to the party grieved, the king cannot discharge the same. 3 Inst. 231.

By the 7 & 8 Geo. IV. c. 29, s. 69, it is enacted, that it shall be lawful for the king's majesty to extend his royal mercy to any person imprisoned by virtue of this act (relating to larceny, &c.) ante, Vol. III. Larceny, although he shall be imprisoned for non-payment of money to some party other than the crown.

It seems to have been always agreed that the king's pardon will discharge any suit in the spiritual court, ex officio. Also, it seems to be settled at this

Impeachment.

Recognisances.

the

Information qui tain.

By non-payment
of money on 7
& 8 G. 4, c. 29.

Suit in the spiri. tual court.

court.

day, that it will discharge any suit in such court at the instance of the party, Suit iu spiritual for the reformation of manners, or welfare of the soul, as for defamation, or laying violent hands on a clerk, and such like ; for such suits are in truth the suits of the king, though prosecuted by the party. Also, it seems to be 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 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. 1 Haw. c. 37, s. 41.

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

If the king release to a man all debts, this shall not discharge his co- Co-debtors. debtor; but otherwise it is in case of a subject, for in that case the release to one discharges both. 3 Inst. 239.

A pardon could not formerly be pleaded, unless it were by act of Parlia- King's sign-mament or under the great seal; and the king's warrant under the sign-manual nual to pardon

not requisite. was not pleadable, as was held in the case of R. v. Beaton, 1 Bl. Rep. 479; Lord Warwick's case, 13 How. State Trials, 1015; Rer v. Gully, í Luch, 98.

But now by the 7 & 8 Geo. IV. c. 28, s. 13, it is declared and enacted, “That where the king's majesty shall be pleased to extend his royal mercy to any offender convicted of any felony, punishable with death or otherwise, and by warrant under his royal sign-manual, countersigned by one of his principal secretaries of state, shall grant to such offender either a free or a conditional pardon; the discharge of such offender out of custody in the case of a free pardon, and the performance of the condition in the case of a conditional pardon, shall have the effect of a pardon under the great seal for such offender, as to the felony for which such pardon shall be so granted."

"Provided always, that no free pardon, nor any such discharge in consequence thereof, nor any conditional pardon, nor the performance of the condition thereof in any of the cases aforesaid, shall prevent or mitigate the punishment to which the offender might otherwise be lawfully sentenced on a subsequent conviction, for any felony committed after the granting of any such pardon."

The 6 Geo. IV. c. 25, (which is not repealed), is similar to the first part of the above provision, except that the 6 Geo. IV. applies only to cases of felony ercluded the benefit of clergy, whereas the above provision extends to all felonies.

The 9 Geo. IV. c. 32, s. 3, after reciting, “ It is expedient to prevent all Every poniali. doubts respecting the civil rights of persons convicted of felonies not capital, ment for selony, who have undergone the punishment to which they were adjudged;" shall have etico enacts, “that where any offender hath been or shall be convicted of any of a parvon under felony not punishable with death, and hath endured or shall endure the punishment to which such offender hath been or shall be adjudged for the same, the punishment so endured hath and shall have the like effects and consequences as a pardon under the great seal, as to the felony whereof the offender was so convicted. Provided always, that nothing herein contained, Proviso. por the enduring of such punishment, shall prevent or mitigate any punishment to which the offender might otherwise be lawfully sentenced, on a subsequent conviction for any other felony."

By the 27 Edw. III. c. 2, in every charter of the pardon of felony, the sug- Pardon to congestion, and the name of him that maketh the suggestion, shall be com- tain the suggesprised ; and, if it be found untrue, the charter shall be disallowed.

For, wherever it may reasonably be presumed that the king was deceived, the pardon is void. Therefore, any suppression of truth or suggestion of falsehood in a charter of pardon will vitiate the whole. 2 Hawk. c. 37, s. 12; 3 Inst. 238.

great seal.

tion.

if

name.

not restore

forfeited.

Doth not re.

the credit.

Pardon to spe.

And, by stat. 13 Rich. II. st. 2, c. 1, no charter of pardon shall be allowed cify the coffence, for murder, treason, or rape, unless the offence be specified therein. son, or rape.

Lord Coke says, the intention of this act was not that the king should grant a pardon of murder by express name in the charter, but because the whole Parliament conceived ihat he would never pardon murder by special

And he says, he hath never seen any pardon of murder by any king of England by express name. 2 Inst. 233, 236.

It was, however, determined in the Court of King's Bench, that the king may pardon on an indictment for murder, as well as a subject may discharge

an appeal. 1 Salk. 499. Person par:

By stat. 5 Wil. III. c. 13, when a pardon is pleaded by any one for felony, doned may be bound to good

the justices may at their discretion remand him to prison till he enter into bebaviour. recognisance, with two sureties, for his good behaviour, for any time not ex

ceeding seven years. Pardon doth

It seems to be a settled rule that no pardon by the King, without express lands or goods

words of restitution, shall divest either from the King or subject an interest
either in lands or goods vested in them by an attainder or conviction prece-
dent; yet it seems agreed, that a pardon prior to a conviction shall prevent
any forfeiture either of lands or goods. 2 Huwk. c. 35, s. 54.

A pardon after the attainder doth not restore the corruption of blood; for ruptiou of blood. this cannot be restored but by act of Parliament. 3 Inst. 233.

But, as to issue born after the pardon, it hath the effect of the restitution

of blood. 1 Hale, 358.
Doth restore It seems to be settled at this day, that the pardon of treason or felony, even

after a convictiou or attainder, doth so far clear the party from the infamy
and all other consequences of his crime, that he may not only have an action
for a scandal in calling him traitor or felon after the time of the pardon, but
may also be a good witness, notwithstanding the attainder or conviction; be-
cause the pardon makes him, as it were, a new man, and gives him a new

capacity and credit. 2 Hawk. c. 37, s. 48. See Vol. II. Evidence.
In perjury. But it seems to be the better opinion that the pardon of a conviction of

perjury doth not so restore the party to his credit as to make him a good wit-
ness; because it would be an injury to the people in general to make them
subject to such a person's testimony. 1 Vent. 349.

Touching a pardon for perjury, this difference is to be taken, that where
a party is convict upon the statute, it is part of the judgment to be disabled ;
but, at common law, it is only a consequential disability. Therefore, in the
latter case, the King may pardon, and that restores the party to his testi-
mony; otherwise in the former, for in that case he must reverse the judg-

ment, or cannot be restored. Rer v. Greepe, 2 Salk. 574.
Fees for pardons By stat. 58 Geo. III. c. 29 (for regulating the payment of fees for pardons
to be paid by the under the great seal), it is enacted," that no fee, gratuity, or other dues, paid
Treasury.

or payable for or in respect of any grant of a pardon by his Majesty, his
heirs and successors, or for or in respect of any letters patent, charter, war-
rant, bill, docket, or other instrument appertaining thereto, or the transcript
of any such instrument, shall be paid or payable by or on behalf of the per-
son or persons in whose favour or to whom such pardon shall be granted ;
but that all fees which are now paid and payable for the granting and pass-
ing of any such pardon or pardons, shall be paid by the Lords Commis.
sioners of his Majesty's Treasury of the United Kingdom of Great Britain and
Ireland, in the same manner and by the same persons as other law expenses

on behalf of his Majesty are paid.”
Exemption from Sect. 2 enacts, that from and after the passing of this act, no such letters
stamp-duties.

patent, charter, warrant, bill, docket, instrument, or transcript, as aforesaid,
shall be subject to or liable to be charged with any stamp-duty or duties

whatever.
Of pardon to By stat. 37 Geo. III. c. 140, s. 1, if his Majesty shall be pleased to extend

his mercy to any offender liable to the punishment of death, by the sentence by a naval of a naval court-martial, upon condition of transportation, or of transporting

himself beyond seas, or on condition of being imprisoned within any gaol in
Great Britain, or on condition of being kept to hard labour in any gaol, or

[ocr errors]

persons senienced to death

court-martial.

« PreviousContinue »