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held is impliedly surrendered or vacated, by the acceptance of the new situation (a).
3. An office may be lost by the destruction of the thing to which it is incident (b): as if a person grant the office of Parker, and afterwards destroy his park, the office, together with all casual fees annexed to it, is gone (c). For the office, being only an accessary, must follow the fate of the principal. For although the grantor of the office could not appoint another person as long as the Park continued, yet when the Park itself was determined and disparked, the office which was appendant thereto, should also be determined. And it was said that if one grant the office of Steward of a Manor, with all profits of courts, and the Manor is afterwards destroyed, the office of Steward, together with the casual profits annexed to "it, is determined.
As to Pardons, Reprieves, Sfc.
1st. In general. 2dly. When and haw far the King may Pardon, and of Dispensations, Non Obstantes, and Reprieves, idly. Manner of Pardoning. Uhly. l'ffect of a Pardon.
1st. In general.
The policy of pardoning public offenders in any case has been questioned by Beccaria (d), who contended that clemency should shine forth in the laws, and not in the execution of them. It would certainly be impolitic to remit the punishment attached to an offence very frequently or indiscriminately. Few measures would tend more strongly to embolden offenders; and nothing could more effectually introduce a contemptuous disregard of those laws which were intended to protect society. It should however be remembered that human institutions are fallible, and must in many respects be imperfect. No human faculties can anticipate the various temptations
(a) 3 Burr. 1616. « T. R. 87, 88. 00 See Beccaria on Crimes and Pu
(:.) 3 Cruise Dig. 169. nishments, eh, 46.
(r) Howard's Case, Cro. Car. 59.
which which may urge a man to the commission of an offence; or foresee all the shades in the circumstances of a case which may extenuate the guilt of the accused. An offence may be within the letter, but foreign to the general scope and spirit of the law. "If we consider accurately the nature of human punishment, we shall find it attended with unavoidable imperfections. How short is our discernment! The surface of things and actions is alone exposed to our view: the inward thoughts, the habitual temper, which form the greater part of moral conduct, are entirely concealed from us. It is for this reason that laws assign the same name, nature, and penalty to all offences, which bear a conformity in outward resemblance, though intrinsically varying from one another, by the thousand circumstances, known only to the Searcher of hearts (a)."
As, therefore, society cannot sufficiently provide for every possible transgression of its ordinances, and measure by anticipation the degree of guilt which may attach to the offender, it has entrusted the King with the power of extending mercy to him. The coronation oath requires the King to temper justice with mercy; and it was the expression of the unfortunate Lord Strafford, that " the King condemns no man : the great operation of his sceptre is mercy"—a generous principle, which seems to have been sometimes acted upon in this country, even in the worst and more dreary periods of our history.
The King is, in legal contemplation, injured by the commission of public offences; his peace is said to be violated thereby, and the right to pardon cannot be vested more properly than in the Sovereign, who is, from his situation, more likely than any other person to exercise it with impartiality, and to whom good policy requires that the people should look, with submissive respect, as the head of the nation, and supreme guardian of the laws. It seems, that anciently the right of pardoning offences, within certain districts, was claimed by the lords of marches and others, who posscssed./Mra regalia (b); but the statute 27 Hen. 8. c. 24. s. 1. vests the sole right of pardoning in the King. This right, or rather prerogative, belongs to a King de facto, and not to the King dejure, during
(a) Considerations on the Law of For- (A) Co. Lit. 114. 3 Inst. 235. Bac.
feiture for High Treason, 1748, by the Ab. Pardon, A. Honourable Mr. York.
. . the the usurpation of the former (a). It is an incommunicable prerogative (6); except, perhaps, in the colonies, where, by grant from the Crown, it may be exercised by the governor, &c . (c). And, by statute SO Geo. 3. c. 47. the King may, by commission under the great seal, authorize the Governor, &c. of New South Wales, &c. to remit the whole or any part of the term for which offenders may have been transported (d).
2dly. When and haw far the King may pardon; and of Dispensations, Non-obstantes, and Reprieves.
The King's right to pardon and remit the consequences of a violation of the law, is confined to cases in which the prosecution is carried on in his Majesty's name, for the commission of some offence affecting the public, and which demands public satisfaction, or for the recovery of a fine or forfeiture, to which his Majesty is entitled. Nonpotest rex gratiamfacere cum injurii et damno aliorum (e). Hence, his Majesty has no legal right to pardon a person found guilty on an appeal of murder, &c. it being a proceeding instituted at the suit, and in the name of a private individual (f); though, it seems, that his Majesty may pardon the burning of the hand, which is inflicted by statute on a conviction of manslaughter, on an appeal, such punishment being collateral to the object of the appeal, and intended as a satisfaction to public justice (g). Nor can the King's pardon be considered a legal discharge of an attachment for non-payment of costs, or non-performance of an award, &c. (h). for though such attachment is carried on in the shape of a criminal process, for a contempt of the court, yet it is in effect, and substantially a civil remedy, or execution for a private injury (i). So, where any legal right or benefit is vested in a
(a) Uro. Ab. tit. Charter de Pardon, s. 33. 4 Bla. Com. 398. 1 Chitty's
S2. Crim. Law, 762, 3, 4. See the late Act.
(i) Jenk. 171, pl. 36. Hob. 183. (g) 5 Co. Rep. 50, a. 2 Hawk. P.
155. 7 Co. 36. Mo. 764. 27 Hen. 8. C.c. 37. s. 59. See Cro. El. 682 5 bat
c.24. S.1. see Moor. 571. 1 Stra. 529, 30, pet
(e) Ante, ch. 3. Eyre, J.
(rf) See 2 B. and Aid. 258. (A) 4 Bla. Com. €85.
(e) 3 Inst. 236. (i). Ibid. 2 Willes, R. 292, note b
(J) Ibid. 237. Hawk. bk. 2. c. 37. 16 East, 500, I.
subject, the King cannot affect it; and, consequently, where a statute gives a right of action to a party grieved, by the commission of an offence, though it be of a public description, his Majesty has no power, by law, to prevent the party aggrieved from bringing his action, even by pardoning the offender before it is commenced (a), nor can his Majesty discharge a recognizance to keep the peace towards an individual before it is forfeited, private security being the object of the instrument (6). And, though the Crown may legally pardon an offence against a statute, which gives a right of action to a common informer, before the action is begun, and may consequently defeat it (c); yet, when the informer has commenced the action, his right to the penalty is, ipsojacto, irreversibly vested in him, if he succeed, and the King cannot deprive him of it (d). In short, the general principle is clear, that the King cannot pardon in cases where no interest is, either in point of fact, or by implication of law, vested in him (c).
The right to pardon obtains, however gross and criminal the offence may be, as in the case of a murder, rape, &c.; though certain peculiar forms must in such instances be observed, as will be noticed hereafter.
It is generally laid down in the books, that the Crown cannot pardon a common nuisance while it remains unredressed, and is continuing; so as to prevent an abatement of it, or a prosecution against the offender: though his Majesty might afterwards remit the fine (f). As the continuation of a nuisance is, of itself, a fresh offence in point of law (g); this doctrine may be supported on the ground that the King cannot, as we shall presently see, dispense with the laws by any previous licence. Besides a prosecution for a nuisance, though technically criminal, is in substance and effect a civil remedy; and the King cannot subject the public to inconvenience by bestowing a favour on an individual or a few persons. There seems, however, to be some reason for the assertion (h), that
(o) 3 Inst . 238. Plowd. 487. 2 Rol. (/ ) 12 Co. 30. 2 Hawk. b. 2. c . 37.
Ab. 178. Cro. Car. 199. Keilw. 134. s.33. 4 Bla. Com. 398. Bac . Ab.
Stra. 529,30; 1272. 2 Term Rep. Pardon, B. But now the fiie does not
569. belong to the Crown, on indictment for
(A) 3 Inst. 233. 12 Co. 30. Hawk. suffering a highway to continue in bad
I). 2. c. 37. s. 34. Dick. Seas. 422. repair, 13 G. 3. a 78. a. 47. 1 Bla.
(c) See Ibid. R, 602.
(rf) Ibid. 3 Inst. 338. 4 Bla. Com. (g) See Ld. Raym. 370. 713.
398, 9. 2 Stra. 1272. (h) 3 Inst. 237. Vaugh. 333. 5 Bac.
(«) See also Stra. 1272. Ab. 286.
such the pardon will save the party from any fine to the time when such pardon was granted: in this case the objection that the King cannot by previous licence dispense with or suspend the operation of the laws, does not apply. The Crown may pardon mala praxis (a).
The King's prerogative right to pardon violations of the law is not confined to offences punishable at common law by indictment. His Majesty may by a charter of pardon discharge not only a suit in the spiritual court ex officio,- but also any suit in such court ad instantiam partis pro reformatione raorum or salute animec; as for defamation, or laying violent hands on a clerk, &c. (b). But the King cannot, by pardoning, discharge any suit in a spiritual (or other) court in which the plaintiff seeks to recover any property; or in which an interest is vested in him: as in the case of a suit for tithes or legacies (c).
The King's right to pardon is also taken from him by statute in certain cases, in favour of public liberty. Thus to commit a subject to prison beyond the realm is by the Habeas Corpus Act made a praemunire which the King cannot pardon (d).
So the King's pardon under the great seal is not pleadable if in bar of an impeachment by the House of Commons (e). Yet, as remarked by Sir Wm. Blackstone (./), " after the impeachment is solemnly heard and determined, it is not understood that the King's royal grace is farther 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 pardon."
It seems agreed that notwithstanding the King's pardon to a simonist coming into Church contrary to the purport of 31 Eliz. c . 6.; or to an officer coming into his office by a corrupt bargain contrary to the purport of 5 and 6 E. 6. c. 1 &.; may save such clerk or officer from any criminal prosecution
(a) Ld. Raym. 214. (rf) 31 Car. 2.c. 2. s. 12.
(i) 2 Hawk. P. C. c. 23. I. 41. 5 («) Sec 12 and 13 Wm. 3. c. 2. ■. 3.
Co. 51. Latch. 190. (/) 4 Com. 399,0. And in Fortes
(05 Co, Rep. 51. Cro. Car. 46, 47. cue R. 385, 397, the judges agreed that
Latch. 100. When the pardon dis- the King might pardon a party attainted
charges the costs awarded in these cases. of high treason, by a bill of attainder
Sec 5 Buc. Ab. 288. 2 lfawk. c. 37. in Parliament, s. 41. SRoLAb. 304.