Front Page Titles (by Subject) CHAPTER XXXI.: OF REPRIEVE AND PARDON. - Commentaries on the Laws of England in Four Books, vol. 2
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CHAPTER XXXI.: OF REPRIEVE AND PARDON. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 2 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893).
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OF REPRIEVE AND PARDON.
*[*394The 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.
I. A reprieve1 (from reprendre, to take back) is the withdrawing 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)
Reprieves may also be ex necessitate legis: as where a woman is capitally convicted and pleads her pregnancy: though this is no cause to stay the judgment, yet it is to respite the execution till she be delivered. This is a mercy *[*395dictated 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 bystanders, after some deliberation of the priests who assisted at the sacrifice, they cast it again into the fire as a young heretic.(b) A barbarity which they never learned from the laws of antient Rome; which direct,(c) with the same humanity as our own, “quod prægnantis mulieris damnatæ pœna differatur, quod pariat:” 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
Another cause of regular reprieve is, if the offender becomes non compos between the judgment and the award of execution;(f) for regularly, as was for merly(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 **396]shall not 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 intervenes 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.3 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 as was attainted and the like. In this last case a jury shall be impanelled 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 whenever a man’s life was in question.(k)
II. If neither pregnancy, insanity, non-identity, nor other plea will avail to avoid the judgment and stay the execution consequent thereupon, the last and surest resort is in the king’s most gracious pardon; the granting of which is the most amiable prerogative of the crown. Law (says an able writer) cannot be framed on principles of compassion to guilt; yet justice, by the constitution of England, is bound to be administered in mercy: this is promised by the king in his coronation-oath, and it is that act of his government which is the most personal and most entirely his own.(l) The king himself condemns no man; that rugged task he leaves to his courts of justice: the great operation of his sceptre is **397]mercy. His power of pardoning was said by our Saxon ancestors(m) to be derived a lege suæ dignitatis: and it is declared in parliament, by statute 27 Hen. VIII. c. 24, that no other person hath power to pardon or remit any treason or felonies whatsoever: but that the king hath the whole and sole power thereof, united and knit to the imperial crown of this realm.(n)
This is indeed one of the great advantages of monarchy in general above any other form of government: that there is a magistrate who has it in his power to extend mercy wherever he thinks it is deserved; holding a court of equity in his own breast to soften the rigour of the general law in such criminal cases as merit an exemption from punishment. Pardons (according to some theorists)(o) should be excluded in a perfect legislation where punishments are mild but certain; for that the clemency of the prince seems a tacit disapprobation of the laws. But the exclusion of pardons must necessarily introduce a very dangerous power in the judge or jury, that of construing the criminal law by the spirit instead of the letter;(p) or else it must be holden, what no man will seriously avow, that the situation and circumstances of the offender (though they alter not the essence of the crime) ought to make no distinction in the punishment. In democracies, however, this point of pardon can never subsist, for there nothing higher is acknowledged than the magistrate who administers the laws; and it would be impolitic for the power of judging and of pardoning to centre in one and the same person. This (as the president Montesquieu observes)(q) would oblige him very often to contradict himself, to make and to unmake his decisions: it would tend to confound all ideas of right among the mass of the people; as they would find it difficult to tell whether a prisoner were discharged by his innocence or obtained a pardon through favour. In *[*398Holland, therefore, if there be no stadtholder, there is no power of pardoning lodged in any other member of the state. But in monarchies the king acts in a superior sphere; and though he regulates the whole government as the first mover, yet he does not appear in any of the disagreeable or invidious parts of it. Whenever the nation see him personally engaged, it is only in works of legislature, magnificence, or compassion. To him, therefore, the people look up as the fountain of nothing but bounty and grace; and these repeated acts of goodness, coming immediately from his own hand, endear the sovereign to his subjects, and contribute more than any thing to root in their hearts that filial affection and personal loyalty which are the sure establishment of a prince.
Under this head of pardons, let us briefly consider, 1. The object of pardon; 2. The manner of pardoning; 3. The method of allowing a pardon; 4. The effect of such pardon when allowed.
1. And, first, the king may pardon all offences merely against the crown or the public; excepting, 1. That, to preserve the liberty of the subject, the committing any man to prison out of the realm is, by the habeas corpus act, 31 Car. II. c. 2, made a præmunire, unpardonable even by the king. Nor, 2. can the king pardon where private justice is principally concerned in the prosecution of offenders: “non potest rex gratiam facere cum injuria et damno aliorum.”(r) Therefore, in appeals of all kinds, (which are the suit not of the king but of the party injured,) the prosecutor may release, but the king cannot pardon.(s) Neither can he pardon a common nuisance while it remains unredressed, or so as to prevent an abatement of it, though afterwards he may remit the fine: because, though the prosecution is vested in the king to avoid multiplicity of suits, yet (during its continuance) this offence savours more of the nature of a private *[*399injury to each individual in the neighbourhood than of a public wrong.(t) Neither, lastly, can the king pardon an offence against a popular or penal statute after information brought; for thereby the informer hath acquired a private property in his part of the penalty.(u)
There is also a restriction of a peculiar nature that affects the prerogative of pardoning in case of parliamentary impeachments: viz., that the king’s pardon cannot be pleaded to any such impeachment so as to impede the inquiry and stop the prosecution of great and notorious offenders. Therefore, when, in the reign of Charles the Second, the earl of Danby was impeached by the house of commons of high treason and other misdemeanours, and pleaded the king’s pardon in bar of the same, the commons alleged(v) “that there was no precedent that ever any pardon was granted to any persons impeached by the commons of high treason or other high crimes, depending the impeachment;” and thereupon resolved(w) “that the pardon so pleaded was illegal and void, and ought not to be allowed in bar of the impeachment of the commons of England;” for which resolution they assigned(x) this reason to the house of lords,—“that the setting up a pardon to be a bar of an impeachment defeats the whole use and effect of impeachments: for, should this point be admitted or stand doubted, it would totally discourage the exhibiting any for the future; whereby the chief institution for the preservation of the government would be destroyed.” Soon after the revolution, the commons renewed the same claim, and voted(y) “that a pardon is not pleadable in bar of an impeachment.” And at length it was enacted by the act of settlement, 12 & 13 W. III. c. 2, “that no pardon under the great seal of England shall be pleadable to an impeachment by the commons in parliament.” But, after the impeachment has been solemnly heard and determined, it is not understood that the **400]king’s royal grace is further restrained or abridged; for, after the impeachment and attainder of the six 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.4
2. As to the manner of pardoning. 1. First, it must be under the great seal. A warrant under the privy seal, or sign-manual, though it may be a sufficient 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.(z)5 2. Next, it is a general rule that wherever it may reasonably be presumed the king is deceived, the pardon is void.(a) Therefore any suppression of truth, or suggestion of falsehood, in a charter of pardon will vitiate the whole; for the king was misinformed.(b) 3. General words have also a very imperfect effect in pardons. A pardon of all felonies will not pardon a conviction or attainder of felony, (for it is presumed the king knew not of those proceedings,) but the conviction or attainder must be particularly mentioned;(c) and a pardon of felonies will not include piracy,(d) for that is no felony punishable at the common law. 4. It is also enacted, by statute 13 Ric. II. st. 2, c. 1, that no pardon for treason, murder, or rape shall be allowed unless the offence be particularly specified therein; and particularly in murder it shall be expressed whether it was committed by lying in wait, assault, or malice prepense. Upon which Sir Edward Coke observes(e) that it was not the intention of the parliament that the king should ever pardon murder under these aggravations; and therefore they prudently laid the pardon under these restrictions, because they did not conceive it possible that the king would ever excuse an offence by name, which was attended with such high aggravations. And it is remarkable enough, that there is no precedent of a pardon in the register for any other homicide than that *[*401which happens se defendendo or per infortunium: to which two species the king’s pardon was expressly confined by the statutes 2 Edw. III. c. 2 and 14 Edw. III. c. 15, which declare that no pardon of homicide shall be granted but only where the king may do it by the oath of his crown; that is to say, where a man slayeth 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 obstante of the statute of king Richard, till the time of the revolution, when, the doctrine of non obstantes ceasing, it was doubted whether murder could be pardoned generally; but it was determined by the court of king’s bench(f) that the king may pardon on an indictment of murder as well as a subject may discharge an appeal. Under these and a few other restrictions, it is a general rule that a pardon shall 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 subsequent, on the performance whereof the validity of the pardon will depend; and this by the common law.(g) 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(h) 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. 74.6
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;(i) neither can he lose the benefit of it by his own laches or negligence, as he may of the king’s charter of pardon.(k) 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 waived the benefit of such pardon.(l) 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.(m) But that statute is repealed by the statute 5 & 6 W. and 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 transcendent 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.(n)7
[1 ] As to reprieves in general, see 1 Hale, 368 to 370. 2 Hale, 411 to 412. Hawk. b. ii. c. 51, ss. 8, 9, 10. Williams, J., Execution and Reprieve. 1 Chitt. C. L. 757 to 762.
In addition to the reprieves mentioned by the learned commentator is that ex man dato regis, or from the mere pleasure of the crown, expressed in any way to the court by whom the execution is to be awarded. 2 Hale, 412. 1 Hale, 368. Hawk. b. ii. c. 51, s. 8.—Chitty.
[(a) ] 2 Hal. P. C. 412.
[(b) ] Fox, Acts and Mon.
[(c) ]Ff. 48, 19, 3.
[(d) ] Flet. l. 1, c. 38.
[(e) ] 1 Hal. P. C. 369.
[2 ] It is usual for the clerk of assize to ask women who receive sentence of death if they have any thing to say why execution shall not be awarded according to the judgment. As the execution of the law in the first instance is respited not from a regard for the mother, but from tenderness towards the innocent infant, if, then, it should happen that she become quick of a second child, this surely is as much an object of compassion and humanity as the first.—Christian.
[(f) ] Ibid. 370.
[(g) ] See page 24.
[3 ] The law is more precisely stated at page 25. Supposing the party to have been sane at the commission of the crime, there can be no objection to indicting him though he may become insane before the bill is preferred; because if he were in his senses he could not be heard to allege any thing against the indictment before the grand jury. See the provisions on this subject now made by the 39 & 40 Geo. III. c. 94.—Coleridge.
[(h) ] 1 Sid. 72. See Appendix, 3.
[(i) ] Fost. 42.
[(j) ] 1 Lev. 61. Fost. 42, 46.
[(k) ] Staundf. P. C. 163. Co. Litt. 157. Hall. Sum. 259.
[(l) ] Law of Forfeit, 99.
[(m) ]LL. Edw. Conf. c. 18.
[(n) ] And this power belongs only to a king de facto, and not to a king de jure during the time of usurpation. Bro. Abr. tit. charter de pardon, 22.
[(o) ] Beccar. ch. 46.
[(p) ] Ibid. ch. 4.
[(q) ] Sp. L. b. vi. c. 5.
[(r) ] 3 Inst. 236.
[(s) ] Ibid. 237.
[(t) ] 2 Hawk. P. C. 391.
[(u) ] 3 Inst. 238.
[(v) ] Com. Jour. April 28, 1679.
[(w) ] Ibid. May 5, 1679.
[(x) ] Com. Jour. May 26, 1679.
[(y) ] Ibid. June 6, 1689.
[4 ] The following remarkable record, in which it is both acknowledged by the commons and asserted by the king, proves that the king’s prerogative to pardon delinquents convicted in impeachments is as ancient as the constitution itself:—
Item prie la commune a nostre dit seigneur le roi que nul pardon soit grante a nully persone, petit ne grande, q’ont est de son counseil et sermentez, et sont empeschez en cest present parlement de vie ne de membre, fyn ne de raunceon, de forfaiture des terres, tennemenz, biens, ou chateaux, lesqueux sont ou serront trovez en aùcun defaut encontre leur ligeance, et la tenure de leur dit serement: mais q’ils ne serront jammes conseillers ne officers du roi, mais en tout oustez de la courte le roi et de conseil as touz jours. Et sur ceo soit en present parlement fait estatat s’il plest au roi, et de touz autres en temps a venir en cas semblables, pur profit du roi et du roialme.
Responsio.—Le roi ent fra sa volente, come mieltz lui semblera. Rot. Parl. 50 Edw. III. n. 181.
After the lords have delivered their sentence of guilty, the commons have the power of pardoning the impeached convict, by refusing to demand judgment against him; for no judgment can be pronounced by the lords till it is demanded by the commons. Lord Macclesfield was found guilty without a dissenting voice in the house of lords; but when the question was afterwards proposed in the house of commons that this house will demana judgment of the lords against Thomas earl of Macclesfield, it occasioned a warm debate; but (the previous question being first moved) it was carried in the affirmative by a majority of 136 voices against 65. Com. Jour. May 27, 1725. 6 H. T. R. 762. In lord Strafford’s trial, the commons sent the following message to the lords:—“That this house hold it necessary and fit that all the members of the house may be present at trial: to the end every one may satisfy his own conscience in the giving of their vote to demand judgment.” Commons’ Journal, 11th of March, 1640.
In the impeachment of Warren Hastings, Esq., it was decided, after much serious and learned investigation and discussion, by a very great majority in each house of parliament, that an impeachment was not abated by a dissolution of the parliament, though almost all the legal characters of each house voted in the minorities.—Christian.
[(z) ] 5 State Trials, 166, 173.
[5 ] By 7 & 8 Geo. IV. c. 28, s. 13, it is enacted “that where the king’s majesty shall be pleased to extend his royal mercy to any offender convicted of 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 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.” This section is in substance a re-enactment of sect. 1 of the unrepealed statute 6 Geo. IV. c. 25, with the exception of the proviso, which is new.
By 39 Geo. III. c. 47, the king may authorize the governor of any place to which convicts are transported to remit, either absolutely or conditionally, the whole or any part of their term of transportation; which remission shall be of the same effect as if his majesty had signified his intention of mercy under the sign-manual; and the names of such convicts are to be inserted in the next general pardon which shall pass the great seal.
And, by sect. 26 of the 5 Geo. IV. c. 84, it is enacted that a felon under sentence or order of transportation, receiving a remission of the sentence from the governor of New South Wales, or any other colony, who may be authorized to grant the same while such felon shall reside in a place where he may lawfully reside under such sentence, order, or remission, may sue for the recovery of any property acquired by him since his conviction, or for any damage or injury sustained by him. This enactment was introduced shortly after the decision of the court of King’s Bench in the case of Bullock vs. Dodds [Editor: illegible character] B. & A. 258.—Chitty.
[(a) ] 2 Hawk. P. C. 383.
[(b) ] 3 Inst. 238.
[(c) ] 2 Hawk. P. C. 383.
[(d) ] 1 Hawk. P. C. 99.
[(e) ] 3 Inst. 236.
[(f) ] Salk. 499.
[(g) ] 2 Hawk. P. C. 394.
[(h) ] Transportation is said (Bar. 352) to have been [Editor: illegible character] inflicted as a punishment by statute 39 Eliz. c. 4.
[6 ] The 8 Geo. III. c. 15 is repealed by the 5 Geo. IV. c. 84, and the 19 Geo. III. c. 74 by the 7 & 8 Geo. IV. c. 27. And, by 9 Geo. IV. c. 32, s. 3, reciting that it is expedient to prevent all doubts respecting the civil rights of persons convicted of felonies not capital, who have undergone the punishment to which they were adjudged, it is enacted that where any offender hath been or shall be convicted of any 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 therein contained, nor 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.
[(i) ] Fost. 43.
[(k) ] 2 Hawk. P. C. 397.
[(l) ] Ibid. 396.
[(m) ] Salk. 499.
[(n) ] See book ii. page 254.
[7 ] A son born after the attainder may inherit if he has no elder brother living born before the attainder; otherwise the land will escheat pro defectu hæredis. 1 Hal. P. C. 358.—Christian.