A writ of error is not allowed as of course; but only on leave obtained under the king's sign manual, or from the attorney general. In case of misdemeanor, however, if there is probable ground, the attorney general is bound ex debito justitiæ to grant his fiat. In felony, it is said, that a writ of error is only allowed ex gratia.-4 Bl. C. 392.

The course at the present day is to send a copy of the record, or, at least, of the indictment (when that is defective), together with counsel's opinion as to the insufficiency, to the attorney general, that he may determine whether he will grant his fiat for a writ of error.-1 Chitty, Cr. Law, 749.

The writ is then lodged with the clerk of the peace (in cases at the sessions), or the clerk of assize (in cases at the assizes), who returns it with the proceedings into the Crown Office.-Ibid. 750.

An attainder may also be reversed by act of parliament. -Ibid.

If a judgment pronounced upon a conviction be falsified or reversed, all former proceedings are absolutely set aside, but the party convicted remains liable to be prosecuted another time for the same offence.-Ibid.

CHAPTER XXIX.

OF REPRIEVE AND PARDON.

1. Of Reprieve.

A REPRIEVE is the withdrawing of a sentence for an interval of time, whereby the execution is suspended.-4 Bl. C. 394.

A reprieve may be ex mandato regis, i.e. by the mere pleasure of the crown, expressed to the Court by which execution is to be awarded.-1 Hale, P. C. 368; 2 Hale, P. C. 412; 2 Hawk. c. 51, s. 8.

A reprieve may also be granted ex arbitrio judicis, and this 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 favourable circumstances to the prisoner's character appear, and it is wished to give him an opportunity for applying to the crown for pardon. -2 Hale, P. C. 412; 4 Bl. C. 394.

These 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.-Ibid.

When the judge thinks proper to recommend a capital convict for mercy, he reprieves him, and sends a memorial or certificate to the King, directed to the secretary of state's office, stating that from favourable circumstances appearing at the trial, &c. he recommends him to his Majesty's mercy and to a pardon, upon condition of transportation, or some slighter punishment.-4 Bl. C. 404, note by Chr.; sup. pp. 321, 322.

A reprieve may also be ex necessitate legis.

This may be, first, where a woman is capitally convicted,

334

and pleads her pregnancy, in delay of execution.-2 Hale, P. C. 413; 4 Bl. C. 394.

Pregnancy is no cause to stay the judgment, but it is to respite the execution till she be delivered.-Ibid.

And therefore execution should never be awarded against a woman without asking her what she can say why execution should not be awarded.-2 Hale, P. C. 407.

In case this plea be made in stay of execution, the judge must direct a jury of twelve matrons or discreet women to inquire of the fact; and if they bring in their verdict quick with child, execution shall be stayed generally till the next session, and so from session to session, till either she is delivered, or proves by the course of nature, not to have been with child at all.—Ibid.

Another cause of reprieve ex necessitate legis, is, if the offender become non compos mentis between judgment and the award of execution.-1 Hale, P. C. 370; 4 Bl. C. 395.

Where this is suggested, the judge may swear a jury to inquire whether the prisoner is really insane or not; and if they find that he is, he must be reprieved till the ensuing session.-Ibid.; vide sup. pp. 3, 4, 280.

2. Of Pardon.

The power of pardon is part of the prerogative of the

crown.

By 27 Hen. VIII. c. 24, it is declared that no other person but the king hath power to pardon or remit any treason or felony whatsoever.

The king may pardon all offences, except

1. The committing any man to prison out of the realm; which is by the Habeas Corpus Act, 31 Car. II. c. 2, a præmunire, unpardonable by the king.

2. A common nuisance while it remains unredressed; though he may afterwards remit the fine.

3. An offence against a penal statute, after a private informer has commenced the action.-4 Bl. C. 398.

By 12 & 13 Will. III. c. 2, the king's pardon cannot be

pleaded in bar to an impeachment by the commons in parliament.

But after the impeachment is determined, the offender may be pardoned.-Ibid. 400.

And in the case of an impeachment, after the lords, have delivered their sentence of guilty, the commons can in effect pardon the party, by declining to demand judgment against him, for no judgment can be pronounced by the lords, till demanded by the commons.-Ibid. note by Chr. The king cannot pardon an offence before it is committed; and such pardon is void.-2 Hawk. c. 37, s. 28.

"it

By 7 & 8 Geo. IV. c. 29, (the Larceny Act,) s. 69, shall be lawful for the king's majesty to extend. his royal mercy to any person imprisoned by virtue of this act, although he shall be imprisoned for on-payment of money to some party other than the crown,"

by the king is by Bl. Com. 405.

The formal manner of pardon letters patent under the great seal.If a pardon be granted to a defendant in prison, it is said that the proper mode of obtaining its benefit upon the circuits, and at the Old Bailey, is to procure the sign manual or privy seal, signifying his majesty's intention to pardon the offender, and directing the justices of gaol delivery to bail him on his entering into a recognizance to appear and plead the pardon at the next general session. This mandate is obeyed by the justices, who, if the pardon is conditional, take security also for the performance of the stipulations upon which it is granted, and then issue their warrant to the gaoler for the prisoner's discharge.-1 Chitty Cr. Law, 470.

By 7 & 8 Geo. IV. c. 28, s. 13, where the king's majesty shall be pleased to extend his royal mercy to any offender convicted of any felony punishable with death, or otherwise, and by warrant under his royal sign manual, countersigned by one of the principal secretaries of state, shall grant to such offender either a free or a 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 for such offender, as to the felony for which such pardon shall be so granted. Provided always that no free pardon, nor any such discharge in consequence thereof, nor any conditional pardon, nor the performance of the condition thereof in any of the cases aforesaid, 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 any such pardon.

And see 9 Geo. IV. c. 32, s. 3, cited sup. p. 328.

Any suppression of truth, or suggestion of falsehood in a charter of pardon, will vitiate the whole.-4 Bl. C. 400. A pardon of all felonies will not pardon a conviction or attainder of felony, but the conviction or attainder must be particularly mentioned. - Ibid.

A pardon of felonies will not include piracy; for that is not a felony punishable at the common law.-Ibid.

By 13 Ric. II. st. 2, c. 1, no pardon for treason, murder, or rape, shall be allowed, unless the offence be particularly specified therein; and particularly in murder it shall be expressed whether it was committed by lying in wait, assault, or malice prepense.

In general, however, it is a rule that a pardon shall be taken most beneficially for the subject, and most strongly against the king.—Ibid. 401.

A pardon may be conditional; as in the case where a felon is pardoned on condition of being confined to hard labour for a certain time, or being transported.-Ibid.

The king's pardon by letters patent must be specially pleaded, in order for the defendant to have the benefit of it on his trial, and that at a proper stage of the proceedings; and the Court have no discretionary power to notice it, unless it be pleaded.-1 Chitty, Cr. Law, 466.

As to the manner of pleading, it vide sup. p. 290.

A pardon may be by act of parliament.

This is more beneficial than by the king's charter; for a man is not bound to plead it, but the Court must notice