changes, introduced by the statute of 33 & 34 Vict. c. 23, whereby the law of forfeiture has been superseded by more lenient and merciful provisions.'

'Attainder, corruption of blood, forfeiture, and escheat in cases of treason or felony are abolished; but the forfeiture consequent upon outlawry still remains. The crown may appoint an administrator of the convict's property, who may deal with it by lease, sale, mortgage, or transfer during the time the convict is undergoing his sentence, pay his debts and liabilities, compensate persons who have sustained injury by his crime, and make allowances to his family and relatives dependent on him for support. Upon his death, bankruptcy, or having undergone his punishment or received a pardon, his property is to revert to him or his representatives, or other person entitled.'

The forfeiture consequent on outlawry still remains, for an offender cannot be allowed to set the laws of his country at defiance and refuse to submit himself to them, and yet remain in the enjoyment of his property. There are some other offences to which the statute apparently does not extend; such as striking in the queen's courts, and præmunire, which are not felonies; and it may be doubted whether misprision of treason, which is not mentioned in the act, is within its operation.'

399

CHAPTER XXIX.

OF REVERSAL OF JUDGMENT.

WE are next to consider how judgments may be set aside. There are two ways of doing this: either by falsifying or reversing the judgment, or else by reprieve or pardon.

A judgment may be falsified, reversed, or avoided, in the first place, without a writ of error, for matters foreign to or dehors the record, that is, not apparent upon the face of it; so that they cannot be assigned for error in the superior court, which can only judge from what appears in the record itself; and therefore, if the whole record be not certified, or not truly certified, by the inferior court, the party injured thereby, in both civil and criminal cases, may allege a diminution of the record, and cause it to be rectified. Thus, if any judgment whatever be given by persons who had no good commission to proceed against the person comdemned, it is void; and may be falsified by showing the special matter without writ of error. As, where a commission issues to A. and B., and twelve others, or any two of them, of which A. or B. shall be one, to take and try indictments; and any of the other twelve proceed without the interposition or presence of either A. or B.; in this case all proceedings, trials, convictions, and judgments are void for want of a proper authority in the commissioners, and may be falsified upon bare inspection without the trouble of a writ of error; it being a high misdemeanor in the judges so proceeding, and little, if anything, short of murder in them all, in case the person so convicted be executed and suffer death.

Secondly, a judgment may be reversed by writ of error: which lies from all inferior criminal jurisdictions" to the 'High Court of Justice,' and from the

High Court to the Court of ceeding according to the course of the common law, Com. Dig. Pleader, 3 B. 7. No writ of error lies upon a summary conviction, per Holt, C. J., Lord Raym. 469.'

Appeal; and from the Court of Appeal' to the House of Peers; and may be brought for notorious mistakes in the indictment, as when the offence is improperly or insufficiently described therein, or in the judgment or other parts of the record; as where a man is found guilty of perjury and receives the judgment of felony. 6 Error might formerly have been brought' for other less palpable errors; such as any irregularity, omission, or want of form in the process of outlawry, or proclamations; the want of a proper aldition to the defendant's name, according to the statute of additions; for not properly naming the sheriff or other officer of the court, or not duly describing where his county court was held; for laying an offence committed in the time of the late sovereign, to be done against the peace of the present; and for many other similar causes, which, though allowed out of tenderness to life and liberty, were not much to the credit or advancement of the national justice, and have been accordingly, as has been more than once observed, taken away by statute.'

These writs of error, to reverse judgments in case of misdemeanors, are not to be allowed of course, but on sufficient probable cause shown to the attorney-general; and then they are understood to be grantable of common right, and ex debito justitiæ. But even then, execution on the judgment shall not be stayed, nor shall the defendant be discharged from execution, unless and until he become bound by recognizance to prosecute the writ of error with effect; to appear personally in court on the day whereon judgment shall be given, and, if so ordered, not to depart without leave; and forthwith to render himself to prison, in case the judgment be affirmed. In default, the writ of error may be quashed, and the defendant will then be liable to execution on the original judgment. For in this event the defendant, if present, may forthwith be committed by the court; while, if from his absence the writ be quashed, or the recognizance estreated, a warrant may be issued for his apprehension, the costs of which must be paid by him before he can be released from prison.'s

Writs of error to reverse judgment in cases of felony are only

allowed ex gratiâ; and not without express warrant under the royal sign manual, or at least by the consent of the attorneygeneral. These therefore 'could, and should occasion arise can, rarely be brought by the party himself, especially where he has been convicted of' an offence against the state; but they might have been, and, should it be necessary, may still' be brought by his heir, or executor, after his death, in more favourable times.1 The easier, and more effectual way, therefore, in this case, 'was, and if it be again necessary to reverse an attainder, as sometimes still occurs in the case of a succession to a peerage, will be '—

Thirdly and lastly, by act of parliament. This has been frequently done, upon motives of compassion, or perhaps from the zeal of the times, after a sudden revolution in the government, without examining too closely into the truth or validity of the errors assigned. And sometimes, though the crime was universally acknowledged and confessed, yet the merits of the criminal's family have after his death obtained a restitution in blood, honours, and estate, or some, or one of them, by act of parliament; which, so far as it extends, has all the effect of reversing the attainder, without casting any reflections upon the justice of the preceding

sentence.

The effect of falsifying, or reversing, an outlawry, is that the party shall be in the same plight as if he had appeared upon the capias; and, if it be before plea pleaded, he shall be put to plead to the indictment; if after conviction, he shall receive the sentence of the law; for all the other proceedings, except only the process of outlawry for his non-appearance, remain good and effectual as before. But when judgment, pronounced upon conviction, is falsified or reversed, all former proceedings are absolutely set aside, and the party stands as if he had never been at all accused. Yet he still remains liable to another prosecution for the same offence; for the first being erroneous, he never was in jeopardy thereby.

1 Vern. 170, 175; 2 Salk. 503. 'As in Tynte v. Reginam, 7 Q. B. 216,

where judgment of outlawry was reversed after the lapse of 116 years.'

VOL. IV.

2 D

CHAPTER ΧΧΧ.

OF REPRIEVE AND PARDON.

THE 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 reprieve, 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 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 reprieve, secondly, may be ex mandato regis, or from the mere pleasure of the crown, expressed in any way to the court by whom the execution is to be awarded. This is the mode in which reprieves are generally granted, through the intervention of one of the secretaries of state.'

Reprieves, thirdly, may 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 dictated by the law of nature, in favorem prolis; and therefore no part of the bloody proceedings, in the reign of Queen Mary, has 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