and warranted by the Habeas Corpus Act, 31 Car. II. c. 2, s. 14. and not to return. The 22 Car. II. c. 5, s. 4, gave the judges power, "at their discretion," to grant a reprieve, and to cause felons to be transported beyond the seas, there to remain for the space of seven years; but if the offender refused to be transported, or returned within the time, then he was to be put to execution upon the judgment. The 22 & 23 Car. II. c. 7, s. 4, directed a judgment of transportation to be entered, when the felon elected to be transported, and authorized the sheriffs to cause offenders to be embarked. It also made a return before the expiration of the sentence, a capital felony. The next statute on the subject was the Act 4 Geo. I. c. 11, "the foundation of the law of transportation," which enacted that, when an offender was convicted for any crime, which was excluded from the benefit of clergy, and the Crown should be pleased to extend mercy, upon condition of transportation to any part of America, any court, having proper authority to do so, might allow such offender the benefit of a pardon under the great seal, and direct him to be transported for the term of fourteen years, or such other term as should be part of the conditions. statute further enacted that, after such offender had served his term of transportation, such service should have the effect of a pardon to all intents and purposes. The stat. 6 Geo. I. c. 23, again made a person at large in Great Britain, before the expiration of the term" of transportation, liable, on conviction, to suffer death. The next Act, 8 Geo. III. c. 15, extended the powers of the judges to make orders for transportation, under the 4 Geo. I. c. 11, by enabling them to do so out of court; and by the stat. 30 Geo. III. c. 47, the king was empowered, under the great seal, to authorize the governor or lieutenant-governor of convict settlements to remit the sentences of transports.' 66 The By the statute 5 Geo. IV. c. 84 (amended by 11 Geo. IV, and 1 Will. IV. c. 39), consolidating the laws on the subject of transportation, the king in council was empowered to appoint places beyond the seas, either within or without his dominions, to which persons under sentence or order of transportation or banishment should be conveyed, the governor of the colony, or other person to whom they were delivered, or his assignee, having the property in the service of the convicts. The sovereign was also empowered by warrant to appoint places of confinement at home, either on land or on board vessels in the Thames, or other rivers or harbours, for the removal and confinement of male offenders (recently extended by the stat. 16 & 17 Vict. to females) under sentence of death, but reprieved or respited, or under sentence of transportation, there to remain under order of the secretary of state until entitled to their liberty, or removed, or otherwise dealt with. The capital punishment for offenders found unduly at large before the expiration of their sentence was still retained, but was subsequently abolished by the stat. 4 & 5 Will. IV. c. 67, which substituted transportation for life, with previous imprisonment not exceeding four years.' 'New South Wales, Van Diemen's Land, and Norfolk Island became, under the above-mentioned statute, the principal receptacles for convicts, while other Acts of Parliament were passed for regulating and enforcing the discipline of convicts while under sentence (see 6 Geo. IV. c. 69; 4 & 5 Will. IV. c. 65). The power of the colonial governors to remit sentences was next restrained by the stat. 2 & 3 Will. IV. c. 62, they being only empowered to pardon or remit labour after the convicts had undergone a certain portion of their sentence; but this statute was repealed by the Act 6 & 7 Vict. c. 7, which provides that, instead of go vernors of colonies remitting either absolutely or conditionally the period of transportation, the governors shall recommend felons to government at home for pardon, and they are to be allowing pardon. [ 402 ] 3. With regard to the manner of allowing pardons, we may 3. Manner of observe that a pardon by Act of Parliament is more beneficial than by the royal charter; for a man is not bound to plead it, but the court must ex officio take notice of it; neither can he lose the benefit of it by his own laches or negligence,, as he may of the royal charter of pardon. The sovereign'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.' 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 pardoned according to the instructions received thereupon, such pardons having the same effect as a pardon under the great seal.' 'Although, as already stated, the property in the services of convicts was vested in the colonial governor or his assigns, a practice prevailed in those places to which offenders were transported of granting them, in certain cases and on certain conditions, permission to employ themselves for their own benefit. These permissions were usually called by the name of "tickets of leave." By the last-mentioned statute, 6 & 7 Vict. c. 7, the legislature, thinking just that ticketof-leave convicts should be protected in their persons and in the possession of such property as they might acquire by their industry, empowered them to hold personal property, and to maintain actions in respect thereof while such tickets remained unrevoked.' 'The reception of convicts having, however, become distasteful to the inhabitants of the colonies, the stat. 10 & 11 Vict. c. 67, was passed, permitting offenders under sentence of transportation to be removed to any prison or penitentiary in Great Britain; directors of the principal convict prisons being appointed afterwards under the stat. 13 & 14 Vict c. 39. The difficulty attending the reception by the colonies of transported convicts having increased, the stat. 16 & 17 Vict. c. 99, finally abolished the punishment of transportation for less than fourteen 'Before this last statute was passed, Fost, 43. 2 Hawk. P. C. 397. 12 Hawk. P. C. 396. Lastly, the effect of a pardon. arrest of judgment, or in the present stage of proceedings, in bar of execution. Anciently, by statute 10 Edw. III. c. 2, no pardon of felony could be allowed, unless the party found sureties for his good behaviour before the sheriff and coroners of the county." But that statute 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 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 Crown 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. True it is that formerly' nothing could restore or purify the blood when once corrupted, if the pardon were not allowed till after attainder, but the high and transcendent power of parliament. Yet if a person attainted received the king's pardon, and afterwards had a son," that son might 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. 'But the effect of the alteration in the law, already noticed, is to do away altogether with corruption of blood.' m Salk. 499. n A son born after the attainder 'might have' inherited if he had no elder brother living born before the attainder; otherwise the land 'would' escheat pro defectu hæredis. (1 Hale, P. C. 358. [CHRISTIAN.] • See ante, p. 459. CHAPTER XXXII. OF EXECUTION. THERE now remains nothing to speak of but execution, the [ 403 ] completion of human punishment. And this, in all cases, as well capital as otherwise, must be performed by the legal officer, the sheriff or his deputy; whose warrant for so doing was anciently by precept under the hand and seal of the judge, as it is still practised in the court of the lord high steward, upon the execution of a peer; though in the court of the peers in parliament, it is done by writ from the Crown. Afterwards it was established," that in case of life, the judge may command execution to be done without any writ. And now the usage is, for the judge to sign the calendar, or list of all the prisoners' names, with their separate 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, 66 sus. per coll." for "suspendatur per collum.” And this is the only warrant that the sheriff has for so material an act as taking away the life of another. It may certainly afford matter of speculation, that in civil causes there should be such a variety of writs of execution to recover a trifling debt, issued in the name of the sovereign, and under the seal 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, should depend upon a marginal note.R C a 2 Hal. P. C. 409. b Finch, L. 478. e Staundf. P. C. 182. d 5 Mod. 22. e Though it be true that a marginal note of a calendar, signed 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 solemnity [ 404 ] The sheriff, upon receipt of his warrant, is to do execution within a convenient time; which in the country is also left at large. But in the Court of Queen'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 discretion of the sheriff. It was enacted by the statute 25 Geo. II. c. 37, that in case of murder, the judge should in his sentence direct execution to be performed on the next day but one after sentence passed; but this provision was subsequently repealed, and now' the time and place of execution are by law no part of the judgment, whether for murder or any other offence." It has been well observed, that it is of great importance that the punishment should follow the crime as early as possible; that the prospect of gratifica tion or advantage, which tempts a man to commit the crime, should instantly awake the attendant idea of punishment. Delay of execution serves only to separate these ideas; and then the execution itself affects the minds of the spectators rather as a terrible sight than as the necessary consequence of transgression. reason to vary the course of the law, St. Trials, VI. 332; Fost. 43. In London, indeed, a more solemn and becoming exactness' was formerly' used, both as to the warrant of execution, and the time of executing thereof; for the recorder, after reporting to the Now, So held by the twelve judges, Mich. 10 Geo. III. In all capital cases, except high treason, the court is, nevertheless, authorized, whenever it shall be of opinion that, under the particular circumstances of the case, the offender is a fit object to be recommended to the royal mercy, to abstain from pronouncing judgment of death, and instead thereof to order such judgment to be recorded. (4 Geo. IV. c. 48, s. 1; 6 & 7 Will. IV. c. 30; Reg. v. Hogg, 2 Mood. & Rob. 380.') Beccar. ch. 19. |