[bable cause shown to the attorney-general](ƒ): though, supposing such probable cause to appear, the writ is [understood to be grantable of common right, and ex debito justitiæ (g).] And by 8 & 9 Vict. c. 68-amended by 9 & 10 Vict. c. 24, and 16 & 17 Vict. c. 32 (h),-where judgment shall have been given for a misdemeanor, and the defendant shall have obtained a writ of error to reverse it, execution thereon shall be stayed, and the defendant discharged from imprisonment until such writ of error shall be finally determined; subject, however, to a proviso, that no execution shall be stayed, nor discharge take place, until the defendant shall be bound by recognizance, (with two sufficient sureties,) to prosecute the writ of error with effect, and personally to appear in court on the day on which judgment thereon shall be given; and, in case the judgment be affirmed, forthwith to render himself to prison according to the judgment. As for writs of error to reverse judgment in capital cases, they are [only allowed ex gratiâ, and not without express warrant under the king's sign manual, or at least by the consent of the attorney-general (i). These therefore can rarely be brought by the party himself (k), especially where he is attainted for an offence against the state; but they may be brought by his heir or executor after his death, in more favourable times; which may be some consolation to his family.] In this case, however, the more effectual way, is [to reverse the attainder by Act of Parliament; which may be and hath 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 (f) See Ex parte Lees, 1 Ell. Bl. & Ell. 828. (g) See Ex parte Newton, 4 Ell. & Bl. 869; 16 C. B. 97. (h) As to the recognizance required in error, see Dugdale v. The Queen, 1 Dearsley's C. C. R. 254. (k) There occurred one recently, in the case of Mansell v. The Queen, 8 Ell. & Bl. 54. [into the truth or validity of the errors assigned. And sometimes, though the crime be universally acknowledged and confessed, yet the merits of the criminal's family shall after his death obtain 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.] When the judgment is reversed upon a writ of error in any criminal case, the statute 11 & 12 Vict. c. 78, provides that is shall be competent to the court of error either to pronounce the proper judgment itself, or to remit the record to the court below, in order that that court may pronounce the proper judgment (1). And if the judgment be affirmed, or the writ quashed, then, by 16 & 17 Vict. c. 32, s. 4, the court of error may forthwith commit the defendant, if present, to the Queen's Prison (m): and by sect. 5 of the same Act, on its being made to appear to any one of the judges that the recognizances have been estreated, the judgment affirmed, or the writ quashed,and that default has been made for the space of four days in rendering the defendant to prison,- such judge may issue his warrant for the apprehension of the defendant. [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 nonappearance, 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; restored in his credit, his capacity, his blood, and (1) As to the construction of this statute, see per Lord Campbell, in the case of Holloway v. The Queen, 17 Q. B. 327. (m) Vide sup. vol. 1 p. 239. [his estates; with regard to which last, though they be granted away by the Crown, yet the owner may enter upon the grantee with as little ceremony as he might enter upon a disseisor (n). But he still remains liable to another prosecution for the same offence; for the first being erroneous, he never was in jeopardy thereby.] (n) Hawk. P. C. b. 2, c. 50, s. 20. = CHAPTER XXV. OF REPRIEVE AND PARDON. [THE only other remaining ways of avoiding the execution of the judgment are by a reprieve, or a pardon (a); whereof the former is temporary only, the latter per manent. 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, in the first place, [ex mandato regis, that is, the mere pleasure of the Crown, expressed to the court by which execution is to be awarded (b).] Again, there may be a reprieve [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 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 (c). Reprieves may also be ex necessitate legis; as, where a woman is capitally convicted, and pleads her pregnancy : (a) Vide sup. p. 424. It may deserve remark, that Blackstone, in this and the following chapter, is speaking chiefly of a judgment of death,-in his time (as observed in a former place) of far more frequent occurrence than at the present day. (Vide sup. p. 105.) (b) 1 Hale, P. C. 368; 2 Hale, P. C. 412; Hawk. P. C. b. 2, c. 51, s. 8. (c) 2 Hale, P. C. 412. [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, hath 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 stake, and was preserved by the by-standers, after some deliberation of the priests who assisted at the sacrifice, they cast it again into the fire as a young heretic (d). A barbarity which they never learned from the laws of antient Rome; which direct, with the same humanity as our own, "quod prægnantis mulieris damnatæ pœna differatur, quoad pariat (e):" which doctrine has also prevailed in England, as early as the first memorials of our law will reach (ƒ). In case this plea be made in stay of execution, the judge must direct a jury of twelve matrons or discreet women to inquire the fact; and if they bring in their verdict quick with child, (for, barely with child, unless it be alive in the womb, is not sufficient,) 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. But if she once hath had the benefit of this reprieve, and been delivered, and afterwards becomes pregnant again, she shall not be entitled to the benefit of a further respite for that cause (g). For she may now be executed before the child is quick in the womb; and shall not, by her own incontinence, evade the sentence of justice. Another cause of regular reprieve is, if the offender become non compos, between the judgment and the award of execution (h):] for by the common law, on which, as formerly shown, some new provisions have now been engrafted by Act of Parliament, [though a man be compos (d) Fox, Acts and Mon. (e) Ff. 48, 19, 3. (f) Flet. I. 1, c. 38. (g) 1 Hale, P. C. 369. |