in criminal law, is the remitting or forgiving an offence committed against the king.

Laws (says an able writer), cannot be framed on principles of compassion to guilt; yet justice, by the constitution of England, is bound to be administered in mercy: this is promised by the king in his coronation oath; and it is that act of his government which is the most personal and most entirely his own. The king condemns no man; that rugged task he leaves to his courts of justice: the great operation of his sceptre is mercy. His power of pardoning was said by our Saxon ancestors to be derived à lege fæce dignitatis; and it is declared in parliament, by stat. 27 Hen.VIII. c. 24. that no other person hath power to pardon or remit any treason or felonies whatsoever; but that the king hath the whole and sole power thereof, united and knit to the imperial crown of this realm.

This is indeed one of the great advantages of monarchy in general above any other form of government, that there is a magistrate who has it in his power to extend mercy wherever he thinks it is deserved; holding a court of equity in his own breast, to soften the rigour of the general law, in such criminal cases as merit an exemption from punishment. Pardons (according to some theorists) should be excluded in a perfect legislation, where punishments are mild, but certain; for that the clemency of the prince seems a tacit disapprobation of the laws. But the exclusion of pardons must necessarily introduce a very dangerous power in the judge or jury; that of construing the criminal law by the spirit instead of the letter: or else it must be helden, what no man will seriously avow, that the situation and circumstances of the offender (though they alter not the essence of the crime) ought to make no distinction in the punishment. In democracies, however, this power of pardon can never subsist; for there nothing higher is acknowledged than the magistrate who administers the laws: and it would be impolitic for the power of judging and of pardoning to centre in one and the same person. This (as the president Montesquieu observes) would oblige him very often to contradict himself, to make and to unmake his decisions: it would tend to confound all ideas of right among the mass of people; as they would find it difficult to tell, whether a prisoner were discharged by his innocence, or obtained a pardon through favour. In Holland therefore, if there be no stadtholder, there is no power of pardoning lodged in any other member of the state. But in monarchies the king acts in a superior sphere; and though he regulates the whole government as the first mover, yet he does not appear in any of the disagreeable or invidious parts of it. Whenever the nation see him personally engaged, it is only in works of legislature, magnificence, or compassion. To him therefore the people look up as the fountain of nothing but bounty and grace; and these repeated acts of goodness, coming immediately from his own hand, endear the sovereign to his subjects, and contribute more than anything to root in their hearts that filial affection and personal loyalty which are the sure establishment of a prince.

The king may pardon all offences merely against the crown or the public; excepting, 1. That, to preserve the liberty of the subject, the committing any man to prison out of the realm, is by the habeas corpus act, 37 Car. II. c. 2. made a premunire, unpardonable even by the king. Nor, 2. can the king pardon, where private justice is principally concerned in the prosecution of offenders: Non potest rex gratiam facere cum injuria et damno aliorum. Therefore, in appeals of all kinds, (which are the suit, not of the king, but of the party injured,) the prosecutor may release; but the king cannot pardon. Neither can he pardon a common nuisance, while it remains unredeemed, or so as to prevent an abatement of it; though afterwards he may remit the fine: because though the prosecution is vested in the king to avoid the multiplicity of suits, yet (during its continuance) this offence favours more of the nature of a private injury to each individual in the neighbourhood, than of a public wrong. Neither, lastly, can the king pardon an offence against a popular or penal statute, after information brought; for thereby the informer hath acquired a private property in his part of the penalty.

There is also a restriction of a peculiar nature, that affects the prerogative of pardoning, in case of parliamentary impeachments, viz. that the king's pardon cannot be pleaded to any such impeachment, so as to impede the inquiry, and stop the prosecution of great PAREGORIES and notorious offenders. Therefore when, in the reign of Charles the second, the earl of Danby was impeached by the house of commons of high treason and other misdemeanors, and pleaded the king's pardon in bar of the same, the commons alleged, "That there was no precedent that ever any pardon was granted to any person impeached by the commons of high treason, or other high crimes, depending the impeachment;" and thereupon resolved, "That the pardon so pleaded was illegal and void, and ought not to be allowed in bar of the impeachment of the commons of England:" for which resolution they assigned this reason to the house of lords, "That the setting up a pardon to be a bar of an impeachment defeats the whole use and effect of impeachments: for should this point be admitted, or fland doubted, it would totally discourage the exhibiting any for the future; whereby the chief institution for the preservation of the government would be destroyed." Soon after the Revolution, the commons renewed the same claim, and voted, "That a pardon is not pleadable in bar of an impeachment." And at length, it was enacted by the act of settlement, 12 & 13 W. III. c. 2. "That no pardon under the great seal of England shall be pleadable to an impeachment by the commons in parliament." But, after the impeachment has been 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 most gracious pardon.

The effect of such pardon by the king, is to make the offender a new man; to acquit him of all corporal penalties and forfeitures annexed to that offence for which he obtains his pardon; and not so much to restore his former, as to give him a new credit and capacity. But nothing can restore or purify the blood when once corrupted, if the pardon be not allowed till after attainder, but the high and transcendent power of parliament. Yet if a person attained receives the king's pardon, and afterwards hath a son, that son may be heir to his father; because the father being made a new man, might transmit new inheritable blood; though, had he been born before the pardon, he could never have inherited at all.