power of forgiving. But this, like every other prerogative of the British crown, is held in trust for the welfare of the people, and is exercised only upon the advice of responsible ministers. It is, moreover, subject to the control of Parliament, which has more than once interfered by statute to limit and restrain the effects of a royal pardon. Inasmuch as the corruption of blood, and the consequent disability of the heirs of an attainted person to inherit property, which results from an attainder, can only be removed by Parliament, it has been sometimes necessary for the sovereign to invoke the assistance of Parliament to give effect to the royal clemency towards political offenders, or their descendants; or to sanction the introduction of particular Bills into either House for that purpose. But a general act of grace and pardon for political offences originates with the sovereign, by whom it is first transmitted to the House of Lords. It is received with peculiar marks of respect by the Houses of Parliament. It is only read once by each House, and cannot be amended, but must be either rejected or accepted altogether." A Bill of indemnity, or of general pardon and oblivion for political offences, may by invitation of the crown be initiated in either House of Parliament, proceeded upon as an ordinary Bill, and afterwards submitted for the royal sanction. The sanction of Parliament is necessary to remove the effects of attainders; otherwise it is customary since the establishment of parliamentary government for Parliament to refrain from direct interference with this prerogative.o Martin, Life P. Consort, v. 1, p. 141. d Com. Jour. v. 23, p. 56. 1b. 17 June, 1747. See Canada Stat. 12 Vict. c. 13. Macaulay, Hist. of Eng. v. 3. pp. 398, 575. Parl. Deb. v. 40, pp. 1423, 1536; Ib. N.S. v. 11. pp. 815, 1318. Stephen, Com. Ed. 1868, v. 4, p. 570. Rept. of precdts. in Lords' Jour. v. 56, pp. 286, 425. See post, p. 566. Is confined to criminal offences. Royal pardons. The exercise of the prerogative of pardon is strictly confined to criminal offences, wherein the crown is a prosecutor, and does not extend to cases of private wrong. Hence Parliament has no right to address the crown for the release of a prisoner confined in gaol on a civil suit, or for non-payment of damages, or for contempt of court, as it is beyond the power of the crown to discharge such persons. Any such application by Parliament would be invoking the exercise of an unconstitutional and arbitrary power, in violation of law and order. Undue severity in such cases, if not capable of being redressed by the ordinary legal tribunals, can only be remedied by a special Act of Parliament.j Formerly all royal pardons were granted under the great seal, upon the advice of the Privy Council. In compliance, generally, with the recommendation of the judge who presided at the trial, the Privy Council assembled to deliberate upon the case. Occasionally discussions arose on the question whether the crown should be advised to remit the sentence or not, in which the king himself took part. But since the commencement of the present reign, this practice has fallen into desuetude, and the administration of the prerogative of mercy has devolved upon the secretary of state for the Home Department, who is considered as being directly and exclusively responsible for the same in Great Britain; and the Lord Lieutenant in Ireland.* h Bowyer, Const. Law, p. 172. Cox, Inst. 615, n. Case of J. Thorogood, Mir. Parl. 1840, pp. 4898, 4901, 4935, 5008. Broom, Leg. Max. 4th ed. p. 65. Hans. D. v. 189, p. 1560; v. 194, p. 768; v. 223, p. 102. May, Const. Hist. v. 2, pp. 275278. As to the right of the crown to remit penalties and forfeitures imposed by law, and recoverable by parties other than the crown; i.e. in suits by action of debt, as well as in criminal proceedings, see L. T. v. 59, p. 94; Hans. D. v. 224, p. 1131; v. 226, pp. 598, 691; 22 Vict. c. 32, 38, and 39 Vict. c. 80; and Art Unions Acts, 9 & 10 Vict. c. 48. In Canada the Gov.-Gen'. can exercise this prerogative, pursuant to the terms of his commission. Can. Sess. Pap. 1869, No. 16. * Hans. D. v. 174, p. 1483. Ib. v. 175, p. 252. Mr. Gladstone's letter to T. Sexton, M.P., of Sept. 6, 1882. See an article in the West. Rev. v. 25, p. 398, on the Prerogative of Pardon. See a disquisition on Executive Par The agreement of the Privy Council having become unnecessary, this body is no longer consulted; but the practice is now regulated by the Act 6 Geo. IV. c. 25, under which pardons, whether free or conditional, may be granted by a warrant under the sign-manual, countersigned by a secretary of state, without the necessity for a more formal instrument. Thus the Home Office, which was originally employed as a medium of enquiry, for the information of the sovereign, has gradually developed into a court of review in criminal cases, whenever a formal application is made for the remission of a sentence. But the office acts rather as a court of mercy than as a court of appeal, because the cases wherein the secretary of state sits as a court of review to re-try the prisoner, and to set aside verdicts, are exceedingly rare. For the most part the facts of the trial are not re-opened, there being seldom any doubt of the correctness of the verdict. The question generally is, whether it is a fit case for the interposition of the prerogative of mercy as a matter of grace. This is a question that no mere legal tribunal could decide, and it is one that suitably belongs to the crown, acting upon the advice of a responsible minister to determine.m peroga In the exercise of this prerogative, the secretary of Exercise state is called upon to pay regard to the moral aspect of of this the case, as contrasted with the legal; and he is also tive. obliged to consider, to some extent, the popular feeling in the community at large." The royal prerogative may be exercised more than once in reference to the same case; thus, where a person has been sentenced to death for a capital crime, and the punishment has been com dons in Rpt. of Massachusetts Board of State Charities, Jan. 1871, pp. 4679. Stephen, Hist. Crim. Law of Eng. 1883, v. 1, c. 10. Parl. D. N. S. v. 12, p. 1163. m Evid. of Sir G. Grey, Home Secretary, and of Mr. Walpole, ex-H. Sec., before Com" on Capital Punish*. n Lord Chancellor and others on muted to one of penal servitude for life, the prerogative may be subsequently interposed for the mitigation of the sentence. But this is only done in cases of an exceptional character. And the crown can only deal with the whole punishment; it has no power to remit a portion of the sentence merely." But the crown may extend its mercy on what terms it pleases, and consequently may annex to its pardon any condition that it thinks fit, whether precedent or subsequent, on the performance whereof the validity of the pardon will depend. But the consent of the felon must be given to a change of punishment; for the crown cannot compel a man, against his will, to submit to a different punishment from that which has been awarded against him in due course of law. In 1849, after W. Smith O'Brien, and others concerned in the rising in Ireland, in 1848, had been convicted of high treason, the Queen was pleased to commute their sentence to transportation for life. But the prisoners refused this act of mercy, and insisted that their own assent was required to the commutation of the sentence. They based their claim, not upon general principles, but upon the wording of certain statutes affecting Ireland. The law officers of the crown protested against this argument; nevertheless, the government introduced a Bill into Parliament to remove all doubts upon the point, which became law." Whenever the crown is memorialised, through the home secretary, for the remission of a capital sentence, if any circumstances are stated in the memorial which ought to have an influence upon the decision, or any new facts alleged, apparently in favour of the prisoner, it is invariably sent to the judge, unaccompanied by any expression of opinion, for his report thereon." 'Where the judge has recommended the commutation of the • Hans. D. v. 184, p. 463. P Ld. Cairns, Hans. D. v. 194, p. 1326. Hawkins, P. C. bk. 2, c. 37, sec. 45. Forsyth, Const Law, pp. 460, n. 463. Stephen, Com. Ed. 1874, v. 1, p. 148. Hans. D. v. 106, p. 395; 12 & 13 Vict. c. 27. Home Sec. Hardy, Hans. D. v. 190, p. 567. sentence, there is no precedent for the home secretary standing in the way.' But, in remitting the sentences of certain Fenian convicts in 1869, the government, in conjunction with the lord lieutenant, acted upon their own responsibility, and without consulting the judges." Frequently the home secretary and the judge confer together upon the case. Besides which the secretary has always the benefit of the ability and experience of the permanent under-secretary of state, in addition to the depositions, the judge's notes at the trial, and any other information he may require to assist him in finally adjudicating upon the case. With this aid he is in a position to assume full and sole responsibility for the advice he may tender to the sovereign in every such instance; and although dissatisfaction is occasionally expressed in regard to the decisions of the Home Office when the prerogative of mercy is invoked, the current of enlightened opinion is decidedly opposed to any change in the present practice. And here it should be observed that criminal cases only come under the notice of the home secretary upon an application for a remission or mitigation of sentence by the mercy of the crown, and are never submitted to his consideration on the ground that the sentence was too lenient. The conduct of a judge under such circumstances can only be reviewed by Parliament." It is estimated that not less than one thousand memorials in relation to sentences of penal servitude and capital punishment are annually presented to the Home Office.* The general principles which influence the home secretary in advising the remission of sentences of penal servitude, whether such sentences were for life or for a Hans. D. v. 189, p. 1514; v. 199, 1866, v. 21, pp. xvii-xix. p. 856; v. 229, p. 35. u 1b. v. 194, p. 311. See summary of evid. in Rpt. of Com" on Capital Punish', Com. Pap. Hans. D. v. 199, p. 1629. Ib. v. 200, p. 1430. * İb. v. 190, p. 566. |