Hen. 8. c. 24. Eng. recites, that divers of the most any Hen.8.c.24. cient prerogatives and authorities of justice, appertain- s. 1. Eng. ing to the imperial crown of this realm, have been se- The king alone vered from the same by sundry gifts of the king's pro- to have the power of pargen tors, &c.; and enacts; that no person shall have doning. any power to pardon or remit any treasons, murders, man-slaughters, or any kinds of felony; nor any accessaries to any treasons, &c.; or any outlawries for such offences as aforesaid; but the king shall have the whole and sole power knit to the imperial crown of this realm. It was provided by the Ordin. pro stát. Hiberniæ, 17 Edw. 1. c. 6. Eng. that no pardon of the suit of the king's Eng. peace for death of a man, or other felony, shail be granted by the justice of Ireland, without special com- gted in mand of the king under his seals of England.. And by another ordinance for the state of Ireland, 31 Edw. 3. 4 Fdw.3. st.4. st. 4. c. 6. Eng. charters of pardon shall not be granted • 6. Eng. by the justice of Ireland, but in parliament, or in coun cil, by their assent; and there shall be no general par don, but the felonies or trespasses shall be specified. 17 Edw.1. c. 6. Poden hous land. s. 3. fr. lord lieutenant respite sen But the 6 Geo. 1. c. 12. Ir. and 12 Geo. 1. c. 8. Ir. post* * Vide p. 1249. seem to recognize the right of the lord lieutenant to grant pardons. The 28 Geo. 3. c. 24. Ir, enacts (s. 3.) 28 Geo.3.c.24. that whenever the office of chief governor of Ireland shall be avoided by his death, and until a justice or go- Where office of vernor shall have been elected according to the provi- vacant, lord sions of this act, the lord chancellor shall have power chancellor may to suspend, respite, or delay the execution of every tences, a sentence, punishment, or penalty, pronounced or adjudged at the suit of the king, until the pleasure of the king be known, or until 14 days from the day when the justice or governor so elected, or commissioned by the king, shall have taken the customary oath of office within this kingdom, as by law required. This prerogative of the king is restrained in respect to the offence of ille gal imprisonment in prisons beyond the seas by the Ha-.. beas Corpus Act, 31. Car. 2. c. 2. Eng. as already stated, 31 Car. 2. c. 2. vol. 1. chap. 1. And it is a provision of the Act of Set- 3. Eng. tlement 13 W. 3. c. 2. Eng. that no, pardon under the 13 w. 3. c. 2. great seal of England, shall be pleadable to an impeach- s. 3. Eng. ment Prerogative restrained by cer tain acts. 1 Ir. Edw.4 c.3. c. 2. E. & I. Form of charters of pardon. c. 1. E & I. 16 Ric. 2. c. 6. E. & I. How to be in murder, c. ment by the commons in parliament. The 7 Edw. 4. c. 3. Ir. ante p. 532. restrains the king's power of pardoning provisors: But no other Irish statute contains any provisions similar to those above mentioned. As to the form in which charters of pardon should be 27Fdw. 3. st.1. granted; the 27 Edw. 3. st. 1. c. 2. E. & I. provides, that in every charter of pardon of felony, which shall be granted at any man's suggestion, the said suggestion, and the name of him that maketh it, shall be comprised in such charter; and if upon inquiry by the justices before whom such charter shall be alleged, the suggestion be found untrue, the charter shall be disallowed. And 13 Ric. 2. st. 2. by the 13 Ric. 2. st. 2. c. 1. E. & I. as amended by the 16 Ric. 2. c. 6. E. & I. no charter of pardon shall be allowed before any justice for murder, or for the death of a man slain by lying in wait, assault, or malice prepensed, treason, or rape, unless the same be specified in such charter; And if any charter of the death of a man be alleged before any justices, in which it is not specified that he of whose death any such was arraigned was murdered or slain by lying in wait, assault, or malice prepensed, the justices shall inquire by a good inquest, of the visne where such person was slain, if he were murdered, &c. by lying in wait, &c. : and if they find that he was murdered, &c. by lying in wait. &c. the charter shall be disallowed. And with respect to the manner of allowing pardons: it was enacted by 10 Edw. 3.st 1. the 10 Edw. 3. st. 1. c. 3. E. & I. that in case the c. 3. E. & I. king shall grant any charters of pardon of manPersons par- slaughter, robbery, felony, or other trespass against doned, to find security for their the peace, they that shall have such charters shall, good behaviour. within 3 months after the making the same, come and find before the sheriffs and coroners of the counties where the felonies were done, 6 sufficient mainpernors, for whom the said sheriffs and coroners shall answer, that they from thenceforth shall bear themselves lawfully; and the mainprises shall be sealed with their seals, and returned into chancery within 3 weeks after the end of the said 3 months; and if they that have such charters would aid themselves thereby, and shall not 1 c. 1.3. Eng. tices may re find such mainpernors, or, after such such mainprise found, shall demean themselves otherwise against the Peace than they ought, their charters shall be holden for none. This statute was repealed in England by the 5 W. & M. c. 13. Eng. which however provides, that if 5 w. & M. any charter of pardon be pleaded by any person for any felony; the justices before whom such pardon shall be where pardon pleaded, may, at their discretion, remand or commit such pleaded, jusperson to prison, until he shall enter into a recogni- quire sureties for good bezance, with 2 sufficient sureties, for his being of the haviour. good behaviour for any time not exceeding 7 year. Provided that if any such charter of pardon be pleaded by a feme covert, or infant, such feme covert, &c. may find 2 sureties for him or her being of the good behaviour as aforesaid. The 10 Edw. 3. st. 1. c. 3. supra, has not been repealed or modified by any Irish statute similar to the 5 W. & M. c. 13. Eng. supra. condition of the judge who fender may portation. Eng. With respect to conditional pardons: The 8 Geo. 3. Where a pardon c. 15. Eng. provides, that where any offender shall be is granted on convicted of any crimes for which he is by law to be transportation, excluded the benefit of clergy, and the judge, or justice reprieved of of oyer and terminer, or gaol-delivery, in any county, make an order &c. before whom such offender shall be convicted, shall for his transgrant a reprieve for the staying of execution of such 8 Geo, 3. c. 15. offender, and recommend him to his majesty as a proper object of mercy; if the king shall extend mercy to such offender upon condition of transportation to any part of America, and such intention of mercy shall be signified by one of the principal secretaries of state to the judge so recommending, it shall be lawful for such judge, &c. to make an order for the immediate transportation of such offender, as if such intention had been signified during the continuance of the assizes at which such offender was condemned; and such order shall be consi- Effect of such dered as an order made at such assizes or place, &c.: and such offender shall be transferred, conveyed, and made over to any person who will contract for the performance of such transportation, and to his assigns, for 14 years, in case such condition of transportation be general; or else for such other term as shall be made part order. of Reward for dis Covering, c. persons being at large after transportation. of such condition, if any particular time be specified by the king; and such person so contracting, or his assigns, Ffect of such shall have a property in the service of such offender for hansportation. such term as aforesaid; and such transportation shall have the effect of a pardon under the great seal for such offender, as to the crime for which he was so convicted; but if any such offender so ordered for transportation, shall be afterwards at large within Great Britain, without some lawful cause, before the expiration of the term for which such offender shall have been ordered to be transported, such offender being thereof convicted, shall suffer death as in cases of felony without benefit of clergy; and shall be tried before such judges, and in such manner, and the same evidence made use of for his conviction, as directed by the laws now in being for the trial of other felons found at large within this kingdom before the expiration of the term for which they were ordered to be transported: and whoever shall discover, apprehend, and prosecute to conviction of felony with out benefit of clergy, any such offender so found at large, he shall be entitled to the like reward of £20. and certificate, and in the same manner, as any person may be entitled to for discovering, &é. any person ordered to be transported, and found at large within this kingdom before the expiration of the term for which such person was ordered to be transported. And the 24 Geo. 3.st. 2. 24 Geo. 3. st. 2. c. 56. Eng. further enacts (s. 1.) that when the king shall extend mercy to any offender, con¬ victed of any crime for which he is by law excluded from the benefit of clergy, upon condition of transportation beyond the seas, either for life or years, and such intention shall be signified by one of the principal secretaries of state; it shall be lawful for any court, having proper authority, to allow such offender the benefit of a conditional pardon, and (except in cases where such offender shall be authorized by his majesty to transport himself) to order the transfer of such offender to any person who shall contract for the due performance of such transportation, and his assigns, for such term of years, for which such offender shall have been ordered c.56, s. 1. Eng. Where person pardoned on condition of transportation, hing may trans fer convict to any person. to in the service portation to be transported, or for such term of life or years as shall be specified in such condition of transportation; and such person so contracting, or his assigns, shall have Contractor to a property in the service of such offender, for such terms have a property respectively; and when any offender shall be convicted of convict, of any crime for which he is by law excluded the benefit of clergy, the judge before whom he shall be convicted, or any justice of K. B. or C. B. or baron of Exc. of the degree of the coif, (in case the offender shall have been tried at any court of oyer and terminer, or gaol delivery, in England, or any justice of Chester or Wales, in case Judge who tried the offender shall be convicted within their jurisdictions) ke an order offender may may, on such intention of mercy being signified to him for his transby one of the principal secretaries of state, make an order for the immediate transportation of such offender, in the same manner as if such intention of mercy had been signified during the continuance of the assizes or sessions at which such offender was condemned; and such order shall be considered as an order made at such assizes or sessions, &c. The other clauses of this statute ante p. 1223-4. are to be here also referred to. The 6 Gẹo. 1. c. 12. Ir. also enacts, (s. 1.) that where any person shall be convicted of any crime for which he is s. 1. Ir. by law excluded the benefit of clergy, and the king, or chief governor of Ireland, shall extend merey to such granted on conoffender on condition of transportation to America, it portation, who shall be lawful for the judges of assize, judges of the may allow such pardon, c. king's bench, commissioners of oyer and terminer, and justices at the sessions to be holden for the city and county of the city of Dublin, to allow such offender the benefit of a pardon on condition of transportation; and such judges, &c. shall direct a warrant of transportation for such offender.* And the 12 Geo. 1. c. 8. Ir. further enacts, (s, 10.) that when the king, or lord lieutenant, s. 10. Ir. shali The remainder of this clause of the 6 Geo. 1. c. 12. which relates to the transmission of such offenders, their maintenance till transportation, and to the presenting money to defray such expenses, appears to be repealed by the 26 Geo. 3. c. 24. §. 71. Ir. ante p. 1230. And Mr. Ball makes it à query Whether the 12 Geo. 1. e. B. s. 10. post, is not also repealed by the same statute, 6 Geo. 1. c. 12. Where Pardon dition of trans 12 Geo. 1. c. §. |