could be fafe, if he were to return the goods which he had fairly bought, provided any of the prior vendors had committed a treafon or felony. Yet if they be collufively and not boua fide parted with, merely to defraud the crown, the law (and particularly the ftat. 13 Eliz. c. 5.) will reach them; for they are all the while truly and fubftantially the goods of the offender; and as he, if acquitted, might recover them himself, as not parted with for a good confideration; so in cafe he happens to be convicted, the law will recover them for the king.

CORRUPTION OF BLOOD. Corruption of Blood extends both upwards and downwards; fo that an attainted perfon can neither inherit lands or other hereditaments from his ancestors, nor retain those he is already in poffeffion of, nor transmit them by defcent to any heir; but they escheat the lord of the fee, fubject to the king's fuperior right of forfeiture: and the perfon attainted alfo obftructs all defcents to his pofterity, wherever they are obliged to derive a title through him to a remoter ancestor.

EXECUTION. The judgments on various offences have already been mentioned in treating of them. When a peer is convicted of high treason the fentence on him is the fame as on commoners, but it is ufual for the king to remit all parts of it except beheading. The judgment of death against a man or woman for felony has always been the fame fince the reign of Henry I. viz. that he or the be hanged by the neck till dead; which in the roll is fhortly entered thus, "fuf. per coll." for fufpendatur per collum, let him be hanged by the neck. It may afford matter of fpeculation, Blackftone obferves, that in civil caufes 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 fheriff cannot legally ftir one ftep; and yet that the execution of a man, the most important and terrible tafk of any, fhould depend upon a marginal note. Upon this point Mr. Chriftian gives the following judicious and fatisfactory explanation: Though it be true that a marginal note in a calendar, figned by the judge, is the only warrant that the sheriff has for the execution of a convict, yet it is made with more caution and folemnity than is represented by the learned commentator. At the end of the affizes, the clerk of affize makes out in writing four lifts of all the prisoners, with feparate columns, containing their crimes, verdicts, and fentences, leaving a blank column, which the judge fills up oppofite the names of the capital convicts by writing, to be executed, refpited, or reprieved. These four calendars, being first carefully compared together by the judge and the clerk of the aflize, are figned by them, and one is given to the fheriff, one

to

to the jailor, and the judge and the clerk of the affize each keep another. If the fheriff receives afterwards no fpecial order from the judge, he executes the judgment of the law in the usual manner, agreeably to the directions of his calendar.

Execution ought not to be awarded into a different county from that wherein the party was tried and convicted, except only where a record of attainder is removed into the court of king's-bench, which may award the execution in the fame county wherein it fits; and where the prifoner is in the cuftody of the marfhal of the king's-bench, the ufual place of execution is at Saint Thomas at Waterings, in the county of Surry. In all cafes, as well capital as otherwife, execution must be performed by the fheriff or his deputy; whofe warrant for fo doing was anciently by precept under the hand and feal of the judge, as it is ftill practifed in the court of the lord high fteward upon the execution of a peer, 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. In London, the Recorder, after reporting to the king in perfon, the cafe of the feveral prifoners, and receiving his royal pleasure that the law must take its courfe, iffues his warrant to the fheriffs, directing them to do execution at the day and place affigned. If a man condemned come to life after he has been hanged, he ought to be hanged again; for the judgment is not executed till he is dead.

REPRIEVE. A reprieve, from reprendre, to take back, is the withdrawing of a fentence for an interval of time, whereby the execution is fufpended. Every court which has power to award an execution, has alfo of common right a difcretionary power of granting a reprieve; as where a perfon pleads a pardon defective in point of form, but fufficiently fhewing the king's intention of mercy; or where it is doubtful whether the offence be not included in a general statute pardon; or whether, as it is laid in the indictment, it amounts to fo high a crime as that with which the prifoner was charged. Judges continue to have this power after their commiffion is determined; and by the 8 Geo. III. c. 15. a power is given to judges of affize to reprieve a prifoner for the purpose of obtaining a conditional pardon.

There are reprieves independently of grace, which arife from the neceffity of law. If a woman quick with child is condemned either for treafon or felony, the may allege her being with child in order to get the execution refpited, and thereupon the fheriff or marshal is commanded to take her into a private room, and to impanel a jury of matrons to

try

AM

try and examine whether fhe is quick with child or not; and if they find her quick with child, the execution is respited till her delivery; but this refpite cannot be demanded more than once.

Another caufe of regular reprieve is, if the offender become non compos, between the judgment and the award of execution for regularly, though a man be compos when he commit a capital crime, yet if he becomes non compos after, he shall not be indicted; if after indictment, he fhall not be convicted; if after conviction, he fhall not receive judgment; if after judgment, he fhall not be ordered for execution. The law in fuch cafe knows not but he might have offered fome reafon, if in his fenfes, to have ftayed 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 prifoner what he has to allege, why execution 'fhould not be awarded against him; and if he appears to be infane, the judge, in his difcretion may, and ought, to reprieve him.

PARDON. The king may pardon all offences merely against the crown, or the public; excepting, that to preferve the liberty of the fubject, the committing any man to prifon out of the realm is by the habeas corpus a&t, 31 Chas. II. c. 2. made a præmunire, unpardonable even by the king. Nor can the king pardon where private juftice is principally concerned in the profecution of offenders. Neither can he pardon a common nuifance while it remains unredrefied, or fo as to prevent an abatement of it, though afterwards he may remit the fine. Neither, laftly, can the king pardon an offence against a popular or penal ftatute, after information brought; for thereby the informer has acquired a private property in his part of the penalty. There is also a restriction of a peculiar nature, that affects the prerogative of pardoning, in cafe of parliamentary impeachments, viz. that the king's pardon cannot be pleaded, to any fuch impeachment, fo as to impede the inquiry, and ftop the profecution of great and notorious offenders; but after the impeachment has been folemnly heard and determined, it is not underflood that the king's royal grace is further reftrained or abridged.

As to the manner of pardoning: 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, is not of itself a complete irrevocable pardon. Next, it is a general rule, that, wherever it may reafonably 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. General words have alfo a very imperfect effect in pardons. A

pardon of all felonies will not pardon a conviction or attainder of felony (for it is prefumed the king knew not of these 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. It is alfo enacted by 13 Rich. II. c. 1. that no pardon for treafon, murder, or rape, fhall be allowed, unlefs the offence be particularly fpecified therein; and particularly in murder, it thall be expreffed whether it was committed by lying in wait, affault, or malice prepenfe. Pardons of murder were therefore always granted with a non obftante of the ftatute of King Richard, till the time of the revolution, when the doctrine of non obftante 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 difcharge an appeal. Under thefe and a few other restrictions, it is a general rule, that a pardon fhall be taken most beneficially for the fubject, 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. But although the king may pardon conditionally, or remit part of the fentence of the law, he can in no cafe aggravate fuch fentence, or alter the terms of it by any fanciful com

mutation.

With regard to the manner of allowing pardons, it may be obferved, 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 muft, ex officio, take notice of it; neither can he lofe 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 fpecially 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 fuch pardon; but, if a man avails himself thereof as foon as by courfe of law he may, a pardon may either be pleaded upon arraignment, or in arreft of judgment, or in bar of execution. Anciently, by 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 5 and 6 W. and M. c. 13, which, inftead thereof, gives the judges of the court a difcretionary power to bind the criminal, pleading fuch pardon, to his good behaviour, with two fureties, for any term not exceeding feven years.

Laftly,

Lastly, the effect of 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 fo 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 has a fon, that fon may be heir to his father.

Pardons (according to fome theorists) fhould be excluded in a perfect legiflation, where punishments are mild but certain; for that the clemency of the prince feems a tacit disapprobation of the laws; but the exclufion of pardons must neceffarily introduce a very dangerous power in the judge or jury, that of conftruing the criminal law by the spirit inftead of the letter; or else it must be holden, what no man will seriously avow, that the fituation and circumftances of the offender, though they alter not the effence of the crime, ought to make no distinction in the punishment. In pure democracies there is no power of pardoning lodged in any member of the state; but in monarchies the king acts in a fuperior sphere, and though he regulates the whole government as the first mover, yet he does not appear in any of the difagreeable or invidious parts of

it.

Whenever the nation fee him perfonally engaged, it is only in works of legiflature, magnificence, or compaffion. To him therefore the people look up as the fountain of nothing but bounty and grace; and thefe repeated acts of goodness, coming immediately from his own hand, endear the fovereign to his fubjects, and contribute more than any thing to root in their hearts that filial affection, and perfonal loyalty, which are the fure eftablishment of a prince.

END OF THE SECOND VOLUME.

Strahan and Prefton, New-Street-Square, London.