[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 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 (h). 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. Or, the party may plead in bar of execution; which plea may be either pregnancy, the royal pardon, an act of grace, or diversity of person; viz. that he is not the same that was attainted, and the like. In the last case a jury shall be impanelled to try this collateral issue, -as 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 (i), 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 (k); neither shall any peremptory challenges of the jury be allowed the prisoner (1); though formerly such challenges were held to be allowable, wherever a man's life was in question (m). 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 sovereign'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 (h) Vide sup. p. 111. (i) R. v. Corbet, 1 Sid. 72. (k) Fost. 42. (1) R. v. Okey, 1 Lev. 61; Fost. 42, 46. (m) Staundf. P. C. 163; Co. Litt. 157; Hal. Sum. 259. [England, is bound to be administered in mercy: this is promised by the sovereign in his coronation oath; and it is that act of his government; which is the most personal, and most entirely his own (n). The king himself condemns no man; that rugged task he leaves to his courts of justice the great operation of his sceptre is mercy. His power of pardoning was said, by our Saxon ancestors, to be derived a lege suæ dignitatis(o); and it is declared in parliament, by statute 27 Henry 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 (p). 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,) should be excluded in a perfect legislation, where punishments are mild but certain: for the clemency of the prince seems a tacit disapprobation of the laws (q). 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 (r); 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 power of pardon can never subsist; for there, nothing higher is acknowledged than the (n) Law of Forfeit. 99. (0) Wilk. Leg. Ang. Sax. LL. Edw. Conf. c. 18. (p) It is observable that this power belongs only to a king de facto, and not to a king de jure [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, 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 (s). But, in monarchies, the sovereign 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 him to his subjects; and contribute more than anything 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 considerFirst, the subject of pardon. Secondly, the manner of pardoning. Thirdly, the method of allowing a pardon. Fourthly, the effect of such pardon when allowed. And, first, the sovereign 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 injuriâ et damno aliorum" (t)]. Upon this principle [he cannot pardon a common nuisance, while it remains unredressed, or so as to prevent an abatement of it; though afterwards he may (s) Sp. L. b. 6, c. 5. (t) 3 Inst. 236. [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 injury to each individual in the neighbourhood, than of a public wrong (u).] It may be noticed, that by 22 Vict. c. 32, her Majesty is now expressly enabled to remit, wholly or in part, any sum of money which under any Act may be imposed upon a convicted offender, although such money may be wholly or in part payable to some party other than the Crown; and, if such offender has been imprisoned in default of payment, may nevertheless extend to him the royal mercy (x). [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 misdemeanors, 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 person impeached by the commons of high treason, or other high crimes, depending the impeachment (y);" 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 com"mons of England (z);" 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 66 66 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 (u) Hawk. P. C. b. 2, c. 37, s. 33. (x) See also 24 & 25 Vict. c. 96, s. 109, c. 97, s. 67, as to the remission of penalties imposed on a summary conviction, for offences made so punishable under those Acts. (y) Com. Journ. 28 April, 1679. (z) Ibid. 5 May, 1679. 66 ["institution for the preservation of the government would "be destroyed (a)." And soon after the revolution, the commons renewed the same claim, and voted "that a par"don is not pleadable in bar of an impeachment (b):” and at length it was enacted by the Act of Settlement, 12 & 13 Will. 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 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 (c). (a) Com. Journ. 26 May, 1679. (b) Ibid. 6 June, 1689. (c) The following remarkable record, in which it is both acknowledged by the commons and asserted by the sovereign,-proves that the king's prerogative to pardon delinquents convicted in impeachments is as antient 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 este de son counseil et serementez, et sont empeschez en cest present parlement de vie ne de membre, fyn ne de raunceon, de forfaiture des terres, tenemenz, biens, ou chateux, lesqueux sont ou serront trovez en aucun 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 oustes de la courte le roi et de conseil as touz jours. Et sur ceo soit en present parlement fait estatut s'il plest au roi, et de touz autres en temps a venir en cas semblables, pur profit du roi et de roialme. "Responsio: Le roi ent fra sa vo lente, come mieltz lui semblera."-Rot. Parl. 50 Edw. 3, n. 188. 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 demand 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. (Comm. Journ. 27 May, 1725; 6 H. St. Tr. 762.) In the impeachment of Warren Hastings 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 |