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posterity, wherever they are obliged to derive a title through him to a re
REVERSAL OF JUDGMENT.-After judgment has been awarded, it may yet be reversed, and all its consequences set aside in two ways, either by falsifying the judgment, or by reprieve or pardon.
A judgment may be falsified in the first place without a writ of error for matters not apparent on the face of the record. Thus, if any judgment whatever is given by persons who had not a good authority to proceed against the person condemned, it is void: as if a commission be granted to A. and B., and twelve others, or any two of them, of whom A. or B. shall be one, to take and try indictments, all the proceedings will be ipso facto void, if any of the other twelve should act without the interposition of either A. or B. Formerly judgments might be reversed by writ of error, which lies from all inferior courts to the king's bench, and thence to the house of lords. A writ of error might have been brought for gross mistakes in the judgment or other parts of the record: as if a man found guilty of perjury should receive the judgment of felony, so also for less palpable blunders, as the want of the proper addition to the defendant's name in the indictment, and for any other similar clause. But by a late statute,* it has been enacted that no judgment upon any indictment or information for any felony or misdemeanor, whether after verdict or outlawry, or by confession, default, or otherwise, shall be stayed or reversed for want of the averment of any matter unnecessary to be proved, nor for the omission of the words "as appears by the record," or of the words" with force of arms," or against the peace," nor for the insertion of the words, "against the form of the statute," instead of the words "against the form of the statutes," or vice versa, nor for that any person mentioned in the indictment, or information is designated by a name of office or other descriptive appellation, instead of his proper name, nor for omitting to state the time at which the offence was committed; in any case where time is not of the essence of the offence, nor for stating the time imperfectly, nor for stating the offence to have been committed on a day subsequent to the commencement of the prosecution, or on an impossible day, or on a day that never happened; nor for want of a proper or perfect venue, where the court shall appear by the record to have had jurisdiction over the offence. By the 21st section, it is provided that no judgment after verdict upon any indictment or information, for any felony or misdemeanor, shall be stayed or reversed for want of a similiter, nor by reason that the jury process has been awarded to a wrong officer, upon an insufficient suggestion, nor for any misdescription of the officer returning such process, or of any of the jurors, nor because any person has served
*7 Geo. IV., c. 64.
upon the jury who has not been returned as a juror by the proper of ficer.
REPRIEVE, OR PARDON.-The only remaining ways of avoiding the execution of the judgment, are by a reprieve or pardon. A reprieve, from reprendre, to take back, is the withdrawal of a sentence for an interval of time, whereby the execution is suspended, and may be granted at the will of the judge, either before or after judgment. The judge frequently exercises this power whenever he is either dissatisfied with the verdict, or considers the evidence suspicious, or whenever such favourable circumstances in the prisoner's case and character appear, as induces him to apply to the king, either for an absolute or a conditional pardon. A woman capitally convicted, and pleading pregnancy, will be respited till delivered," although it is not a bar to judgment. This is a mercy dictated by the law of nature; and therefore no part of the popish persecution in the reign of queen Mary has been more justly detested than the inhuman cruelty which 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 deli beration of the priests who assisted at the sacrifice, it was again cast into the fire as a young heretic! Such is papal Rome; a barbarity which they never learned from pagan Rome, whose laws in respect of pregnant women were the same as our own. In case this plea, however, is made in stay of execution, the judge must direct a jury of twelve matrons or discreet women to inquire into the fact; and if they return a verdict quick with child, execution shall be staid generally till the next session, and so from session to session till she is either delivered, or proves, by the course of nature, not to have been with child at all; but a verdict simply of with child is not sufficient unless it is alive in the womb.
The law likewise requires a reprieve when the offender becomes noncompos, between the judgment and the execution; because with its usual lenity it argues that perhaps the convict might have offered some reason to have staid the execution of the judgment, had he been in his right mind. Or the offender may plead in bar of execution, either the king's pardon or an act of grace. If neither pregnancy, insanity, nor any other plea will avail to avoid the judgment and stay the consequent execution, the last and surest resort is the king's most gracious pardon. The king, in his coronation oath, promises to administer justice in mercy, and it is an act of his government which is entirely and peculiarly personal, and his own. He personally condemns no man, that disgracious task he leaves to his deputies to perform; but to wield the sceptre of mercy is his own gracious act. This is a right inherent in the crown, jure divino, and it has been declared in parliament * "that no other person hath the power to pardon or remit
* 27 Henry VIII., c 24.
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.” This attribute of mercy is one of the great advantages and blessings of monarchy in general, above any other form of government; that there is a supreme governor who has it in his power to extend mercy wherever he thinks it is deserved: who holds, as it were, a court of equity in his own breast, to soften the rigour of the general laws, in such criminal cases as merit an exemption from punishment. According to some enthusiastic theorists, pardon should be excluded in a perfect legislation, where punishments are mild but certain; because, say they, the clemency of the prince seems a tacit disapprobation of the law. 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: or else it must be holden, what no man will seriously avow, that the situation or circumstances of the offender (though they make no alteration in the essence of the crime), ought to make no distinction in the punishment. In democratic or republican governments, this point of pardon can nowhere subsist: for in such, no one is acknowledged higher than the judge who administers the law; and it would be impolitic for the power of judging and of pardoning also, to centre in one and the same person. This, says Montesquieu,* would oblige him very often to contradict himself: to make and unmake his own decisions; it would tend to confound all ideas of right and wrong among the mass of the people as they would find it difficult to distinguish whether a prisoner were discharged by his innocence, or obtained a pardon through favour. Formerly in Holland, when there was no Stadtholder, there was no power of pardoning offenders, so it was all judgment and no mercy. But in monarchies, the king acts in a superior sphere, and though he regulates the whole government as the first mover, yet he never appears in any of its disagreeable or invidious parts. Whenever the nation sees him personally engaged, it is always in works of legislation, magnificence, or mercy and compassion. To him, therefore, the people look up as the gracious fountain of mercy and bounty; and these constant acts of goodness coming immediately from his own hand, endear the sovereign to his people as their father and protector, and contribute more than any thing to root in their hearts that filial affection and personal loyalty, which are the marks of a religious and ebedient people, and the sure establishment of a paternal monarch.
With respect to the objects of pardon, the king may pardon all offences merely against the crown, or the public generally, with some exceptions to this general rule: as, for instance, to preserve the liberty of the subject, the committing any man to prison out of the realm, is, by the Habeas
* Spirit of Laws, b. vi. c. 5.
Corpus act* made a premunire, and unpardonable even by the king himself; neither can the king pardon where private justice is principally concerned. There is also a restriction of a peculiar nature that affects the prerogative of pardoning in cases 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 of fenders. Therefore, when in the reign of Charles II., the earl of Danby was impeached of high treason by the house of commons, and pleaded the king's pardon in bar of the same, the commons alleged that there was no precedent that ever any pardon was granted to any persons impeached by the commons of high treason or other crimes, depending the impeachment," and thereupon resolved "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 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 government would be destroyed. Soon after the Revolution, the commons renewed the same claim, and voted that a pardon is not pleadable in bar of an impeachment." And at length it was enacted, 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, the king's royal grace is then no farther restrained for after the impeachment and attainder of the six 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.
After the lords have delivered their sentence of guilty, it is in the power of the commons to pardon 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. It was formerly a matter of doubt whether or not a dissolution of parliament abated an impeachment. But after a very full and learned discussion of the question in the im peachment of Warren Hastings, it was decided by a very large majority in both houses, that the dissolution did not abate the impeachment. In deed, it is obvious that were a dissolution of parliament to render an im peachment by the commons of England void, a corrupt minister would al ways resort to this measure to shelter himself from the violence of the storm that had gathered round him, and which he plainly saw would event ually burst over his head and overwhelm him with disgrace and ruin.
* 31 Car. II., c. 2.
12 & 13 W. and M., c. 2.
A pardon must be under the great seal of England. If there be any suppression of the truth, or suggestion of falsehood in a charter of pardon, the validity of the whole is destroyed; because it is to be inferred, that the king has been deceived on the subject, otherwise he would not have granted the pardon. As general records in pardons have but a very imperfect effect, it is necessary that the conviction and attainder be particu larly specified. So also in cases of treason or murder, no pardon shall be allowed, unless the defence be accurately described therein. And in murder, it must be clearly expressed whether the crime was committed by lying in wait, assault, or malice prepense. By the recent statute to which we have so frequently appealed, it is declared, that when the king shall be pleased to extend mercy to any offender convicted of any felony punishable with death or otherwise, and by warrant under the sign-manual, countersigned by one of the 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, as to the felony for which such pardon shall be so granted. This statute also contains an express condition, that neither a free nor a conditional pardon 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 such pardon.
A pardon may be conditional; that is, the king may extend his mercy on what terms he pleases, and may annex to his bounty a condition either precedent or subsequent, on the performance of which the validity of the pardon will depend; which prerogative is daily exerted in the pardon of felons, on condition of their being confined to hard labour for a stated time, or of transportation to some foreign country for life, or a term of years. The punishment of transportation was first resorted to in England in the year 1597, being the thirty-ninth year of the reign of Elizabeth. The king's pardon by charter must be specially pleaded at a proper time, that is either upon arraignment or in arrest of judgment, or in bar of exeThe necessary effect of the king's pardon is to make the offender a new man, by acquitting him of all corporal penalties and forfeitures, the consequences of his crime, and to give him a new credit and capacity. Attainder corrupts the blood, and if the pardon is not granted before that takes place, the polluted stream can only be purified by an act of parliament. But if the attainted person have a son and who has no elder brother living born before the attainder, that son may inherit his father's property; yet if he had been born prior to the grant of the pardon, he never
* 7 & 8 Geo. IV. c. 28