Imatges de pàgina
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it, (if a public act of parliament,) ex officio.-4 Bl. Com. 402.

The effect of a pardon by the king, is to acquit the offender of all corporal penalties and forfeitures annexed to that offence.--Ibid.

It seems to be settled at this day, that the pardon of treason or felony, even after a conviction or attainder, doth so far clear the party from the infamy, and all other consequences of his crime, that he may not only have an action for a scandal, in calling him traitor or felon, after the time of the pardon, but may also be a good witness, notwithstanding the attainder or conviction.—2 Hawk. c. 37, s. 48.

But it also seems to be a settled rule, that no pardon by the king, without express words of restitution, shall divest either from the king or subject an interest either in lands or goods vested in them by an attainder or conviction precedent.—Ibid. s. 54.

It seems agreed, however, that a pardon prior to conviction will prevent a forfeiture either of lands or goods.Ibid.

And in the case of pardon after attainder, issue born after the attainder, may inherit.-4 Bl. C. 402.

And under a pardon by act of parliament, after attainder, the blood may be restored as to all consequences whatever. -Ibid.

To enable a prisoner to avail himself of a reprieve or pardon, he is always asked, (when any time has elapsed between the attainder and the award of execution,) what he hath to allege why execution should not be awarded against him.-Ibid. 396; 2 Hale, P. C. 407.

And though not asked, he may plead the various matters above stated, in delay or bar of execution.

And there is another matter which he may plead in bar of execution, and which may therefore properly be noticed in this place, viz. diversity of person, i. e. that he is not

the person against whom sentence was given.-2 Hale, P. C. 407; 4 Bl. Com. 396.

To this there may be a replication that he is the same ; and a venire is awarded to try the issue thus joined, returnable instanter.-Ibid. ; 1 Chitty, Cr. Law, 771.

In these collateral issues the trial is always instanter, and no time is allowed the prisoner to prepare his defence or produce his witnesses, unless upon a plea of diversity of person he will make oath that he is not the person attainted.—4 BI. C. 396.

And he is not allowed a peremptory challenge on these trials.-Ibid.

CHAPTER XXX.

OF EXECUTION.

EXECUTION in all cases, as well capital as otherwise, must be performed by the sheriff or his deputy.-4 Bl. C. 403 ; See 2 Hale, P. C. 410.

The judge may command execution to be done without any writ.— Ibid.

The usage in country cases is for the clerk of assize to make out in writing 4 lists of all the prisoners with separate columns, containing their crimes, verdicts, and sentences, leaving a blank column, which the judge fills up opposite the names of the capital convicts, by writing “ to be executed” “reprieved,” “respited,” “ transported, &c.” These 4 calendars being first carefully compared together by the judge and the clerk of the assize, are signed by them, and one is given to the sheriff, and one to the gaoler, and the judge and clerk of assize each keep another. If the sheriff receives afterwards no special order from the judge, he executes the judgment of the law, in the usual manner, agreeably to the directions of his calendar.—4 Bl. C. 404, n. (1), by Chr; 1 Chitty, Cr. Law, 781.

The sheriff is to do execution within a convenient time: which is, in the country, left at large, except in the case of murder. (As to which vide sup. 143.)—Ibid. 404.

Except in case of murder, it is stated that the sheriff usually allows two Sundays to intervene between the receipt of the calendar and the execution.—1 Chitty, Cr. Law, 782.

In London the course is for the recorder to report to the king in person, the case of the several prisoners and on receiving the royal pleasure that the law is to take its course, he issues his warrant to the sheriffs, directing

them to do execution on the day and at the place therein assigned.-4 Bl. C. 404.

When the proceeding is in the Court of King's Bench, a rule is made for the execution, either specifying the time and place, or leaving it to the discretion of the sheriff.— 4 Bl. C. 404; See Fost. 43, 44.

The sheriff cannot alter the manner of the execution, by substituting one death for another, without being guilty of felony himself.-2 Hale P. C. 411; 4 Bl. C. 404.

If upon judgment to be hanged by the neck till dead the criminal be not thoroughly killed, but revives, the sheriff must hang him again.-2 Hale, P. C. 412; 4 BI. C. 405.

By 9 Geo. IV. c. 32, s. 3, every punishment for felony not capital, shall, after enduring the same, have the effect of a pardon under the great seal.-Vide sup. p. 328.

APPENDIX.

7 Geo. IV. c. 64. An Act for improving the Administration of Criminal Justice in

England.

[26 May, 1826.] WHEREAS it is expedient to define under what circumstances persons may be admitted to bail in cases of felony, and to make better provision for taking examinations, informations, bailments, and recognizances, and returning the same to the proper tribunals : and whereas the technical strictness of criminal proceedings might in many instances be relaxed, so as to ensure the punishment of the guilty, without depriving the accused of any just means of defence; and the administration of justice in that part of the United Kingdom called England might in other respects be rendered more effectual : Be it therefore enacted by the king's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons in this present Parliament assembled, and by the authority of the same, That where any person shall who may be be taken on a charge of felony or suspicion of felony, before admitted to bail one or more justice or justices of the peace, and the charge on a charge of shall be supported by positive and credible evidence of the

felony, and who

may not. (3 Ed. fact, or by such evidence as, if not explained or contradicted, 1.c. 15 shall, in the opinion of the justice or justices, raise a strong 6, c. 9.) presumption of the guilt of the person charged, such person shall be committed to prison by such justice or justices, in the manner hereinafter mentioned ; but if there shall be only one justice present, and the whole evidence given before him shall be such as neither to raise a strong presumption of guilt nor to warrant the dismissal of the charge, such justice shall order the person charged to be detained in custody until he or she shall be taken before two justices at the least; and where any person so taken, or any person in the first instance taken before two justices of the peace, shall be charged with felony or

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