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each House, and cannot be amended, but must be either
rejected or accepted altogether. 6

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 attain-
ders ; otherwise it is customary since the establishment
of parliamentary government for Parliament to refrain
from direct interference with this prerogative. 81

b Martin, Life P. Consort, v. 1, p. Stat. 12 Viet. c. 13.

141. f Macaulay, Hist, of Eng. v. 3. pp.

c Petersdorff, Abridg'. ed. 1864, v. 398, 575. Parl. Deb. v. 40, pp. 1423,

6, p. 43. Macknight's Life of Lord 1536; Ib. N.S. v. 11. pp. 815, 1318.

Bolingbroke, pp. 517, 558. Stephen, Com. Ed. 1868, v. 4, p.

d Com. Jour. v. 23, p. 56. 670. Kept, of precdts. in Lords' Jour.

e Ib. 17 June, 1747. See Canada v. 66, pp. 286, 425. See post, p. 56(5.



556 THE EOYAL PREEOGATIVE

is con- The exercise of the prerogative of pardon is strictly

criminal confined to criminal offences, wherein the crown is a
offences, prosecutor, and does not extend to cases of private
wrong. b 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 con-
tempt 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 un-
constitutional and arbitrary power, in violation of law
and order. 1 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^
Royal Formerly all royal pardons were granted under the

' ns ' 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 com-
mencement of the present reign, this practice has fallen
into desuetude, and the administration of the preroga-
tive 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. k



h Bowyer, Const. Law, p. 172. p. 94 ; Hans. D. v. 224, p. 1131 ; v.

Cox, Tnst. 615, n. 226, pp. 598, 691 ; 22 Viet. c. 32, 38,

1 Case of J. Thorogood, Mir. Parl. and 39 Viet. c. 80 ; and Art Unions

1840, pp. 4898, 4901, 4935, 5008. Acts, 9 & 10 Viet, c. 48. _ In Canada

Broom, Leg. Max. 4th ed. p. 65. the Gov.-Gen 1 . can exercise this pre-

Hans. D. v. 189, p. 1560; v. 194, p. rogative, pursuant to the terms of his

768 ; v. 223, p. 102. commission. Can. Sess. Pap. 1869,

J May, Const. Hist. v. 2, pp. 275- No. 16.

278. As to the right of the crown k Hans. D. v. 174, p. 1483. Ib. v.

to remit penalties and forfeitures im- 175, p. 252. Mr. Gladstone's letter

posed by law, and recoverable by par- to T. Sexton, M.P., of Sept. 6, 1882.

ties other than the crown; i.e. in See an article m the West. Rev. v. 25,

suits by action of debt, as well as in p. 398, on the Prerogative of Pardon,

criminal proceedings, see L. T. v. 69, See a disquisition on Executive Par-



IN PARDONING OFFENDERS. 657

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, counter-
signed by a secretary of state, without the necessity for
a more formal instrument. 1 Thus the Home Office,
which was originally employed as a medium of enquiry,
for the information of the sovereign, has gradually de-
veloped into a court of review in criminal cases, when-
ever 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 gene-
rally 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. 111

In the exercise of this prerogative, the secretary of Exercise
state is called upon to pay regard to the moral aspect of JJero^a-
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. 11 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 Sec y .. before Com" on Capital Punish',

of State Charities, Jan. 1871, pp. 46- Com.' Pap. 1866, v.' 21 ; Hans. D. v.

79. Stephen, Hist. Crim. Law of 196, p. 1616.

Eng. 1883, v. 1, c. 10. n Lord Chancellor and others on

1 Parl. D. N. S. v. 12, p. 1163. Hall's case, Hans. D. v. 174, pp. 862-

Evid. of Sir G. Grey, Home Sec- 866.
retary, and of Mr. Walpole, ex-H.



558 THE ROYAL PREROGATIVE

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 . p 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. q

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 govern-
ment introduced a Bill into Parliament to remove all doubts upon
the point, which became law. r

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. 8

' Where the judge has recommended the commutation of the



Hans. D. v. 184, p. 463. p. 148.

P Ld. Cairns, Hans. D. v. 194, p. r Hans. D. v. 106, p. 395; 12 & 13

1326. Viet. c. 27.

> Hawkins, P. C. bk. 2, c. 37, sec. ' Home Sec y . Hardy, Hans. D. v.

45. Forsvth, Const. Law, pp. 460, n. 190, p. 567.
403. Stephen, Com. Ed. 1874, v. 1,



IN PARDONING OFFENDERS. 559

sentence, there is no precedent for the home secretary standing in
the way.' 1 But, in remitting the sentences of certain Fenian con-
victs in 1869, the government, in conjunction with the lord lieu-
tenant, 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 cir-
cumstances 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. 1
The general principles which influence the home secre-
tary 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. w Hans. D. v. 199, p. 1629. Ib, v.

" Ib. v. 194, p. 311 . 200, p. 1430.

T See summary of evid. in Rpt. of * Ib, v. 190, p. 566.
Com" on Capital Punish 1 , Com. Pap.



560 THE ROYAL PEEROGATIVE

term of years, were explained to the House of Commons
by Mr. Secretary Walpole, on March 15, 1867. y

, Lord Brougham, in his treatise on the ' British Con-

Brougham &

on this stitution,' dwells at considerable length, and with great
sagacity, upon the principles which should influence
the executive government in the exercise of the prero-
gative of pardoning or commuting the sentences of crimi-
nals. He sums up his observations with the following
weighty words : ' It seems hardly necessary to add that no
interference of parties interested, politically or personally,
should ever be permitted with the exercising of this
eminent function of the executive government. Absolute
monarchies offer to our view no more hideous features
than this gross perversion of justice. Nor do popular
governments present a less hateful aspect when they
suffer the interference of the multitude, either by violence,
or through the press, or the debate, or any other channel
in which clamour can operate, to defeat the provisions
of the law.' z

The issue of a proclamation of amnesty, or oblivion
for past offences against the crown and government of
the realm, is within the acknowledged prerogative of
the crown, and an amnesty or pardon may thus be
granted by the crown either before or after attainder
or conviction,* and also by a colonial governor acting
under royal instructions. b Although, ordinarily, the
exercise of the power of pardon is limited to the case of
individual criminals, after conviction. But in Upper
Canada, after the insurrection of 1837, an Act of the
provincial parliament was passed, which empowered the



y Hans. D. v. 185, p. 1929; v. 174, Australian Governors in 1871, Com.

p. 1270. And in regard to capital Pap. 1875. v. 63, p. 027.

punish', see Ib. v. 186, p. 734 ; v. 198, b Ex. gra. Sir G. Grey in N. Zea-

p. 869. land, in 1865 ; Ld. Durham in L.

z Brougham,Brit.Const. p. .330-332. Canada, in 1838 ; SirG. F. Bowen in

1 Inst. 120 a, note 4. 3 Inst. N. Zealand, in 1871 ; Ld. Dulferin in

233. Bishop, Crim. Law, c. 59, < Par- Canada, in 1875.

don.' But see Colonial practice in c Jls.N. Zealand, H. of Rep. 1872.

Ld. Kimberley's circular despatch to App. v. 1, A. No. 1, a, p. 10.



IN PARDONING OFFENDERS. 5GL

lieutenant-governor, upon the petition of any person
charged with high treason, before his arraignment,
praying to be pardoned, to grant him (by and with the
advice of the Executive Council) a conditional pardon,
which pardon should, nevertheless, have the effect of an
attainder for high treason, so far as forfeiture of property
is concerned. 3 But since confederation, the exercise of
the prerogative of mercy has been withdrawn from
the lieutenant-governors of the Canadian provinces,
because they are no longer appointed by the crown,
and is resident only in the governor-general of Canada
in virtue of his commission. 6

No interference by either House of Parliament with when
the exercise of this prerogative is justifiable, except m^ntTmay
under extraordinary circumstances. It was said by interpose.
Macaulay, that ' he would rather entrust it to the hands
of the very worst ministry that ever held office than
allow it to be exercised under the direction of the very
best House of Comnions ;' f and by Sir Robert Peel, that
he would leave this prerogative in the hands of the
executive, considering that it was the right and duty of
-the House to interfere only ' if there be a suspicion that
justice is perverted for corrupt purposes. >g

But while direct interference with the discretion of the
crown in the exercise of the pardoning power is only
warranted in extreme cases of manifest injustice, it is
competent for Parliament to receive petitions from or on
behalf of criminals under sentence, and, if sufficient cause
is shown to justify enquiry, to appoint committees for that
purpose. A Mr. Palmer, who was condemned for seditious



d Stat. Can. 1 Viet. c. 10. And 2, p. 625. As to powers of colonial

see Lt.-Gov. Arthur's despatch of governors in exercise of this prerog.

20 Aug. 1838, in relation to this sta- see Forsyth, Cases and Op. pp 76-

tute, commenting on apparently con- 82, 460.

flicting claims of the Gov. Gen. of ' Can. Sess. Pap. 1869, No. 16.

Canada, and Lieut.-Gov. of U. C., in ' Hans. D. v. 84, p. 892.

the exercise of prerog. of mercy. * Mir. of Parl. 1835, p. 1581.
Jls. Ass^. U. C. 1839. App. v. 2, pt.

VOL. 1. O O



662 THE ROYAL PREROGATIVE

practices, by the High Court of Justiciary, in Scotland, in
1794, petitioned the House of Commons complaining of
the illegality and undue severity of his sentence. The
reception of his petition was at first opposed by Mr. Pitt,
as being irregular and unjustifiable, but, after an ad-
journed debate on the question, it was agreed to with-
out a division. 11 Since then no objection has been offered
to the reception of petitions from or on behalf of pri-
soners complaining of their sentences, of their treatment
by the court, or in prison, and praying relief, or for the
remission of their sentences. 1 And every facility is
allowed to prisoners to memorialise Parliament, or the
Home Office for redress of grievances. j

Enquiries It has not been unusual for enquiries to be made of
tcrs. the administration in Parliament as to the circumstances
attending the imposition or remission of sentences im-
posed either at the assizes or by local criminal courts
having summary jurisdiction, so as to afford the minis-
try an opportunity of explaining erroneous impressions
in the public mind. k The government exercise their
own discretion as to whether they deem it expedient to
reply to such questions or not. But it has been stated
by ministers, in both Houses, in reply to questions on
the subject, that, ' as a general principle, it would be
inconvenient and unusual to lay before the House the
grounds on which that discretion proceeds which dic-
tates leniency or severity on the part of the responsible
advisers of the crown.' 1

On March 28, 1862, enquiry was made in the House of Lords in
the case of Watson and others, convicted for a criminal offence, as



" Parl. Hist. v. 30, pp. 1449-1461. 1840, p. 3534.

1 See Index, to Pub. Pets. II. of 0. J Hans. I), v. 180, p. 1217.

and see proceed, on motion for an k Mir. of Parl. 1835, p. 2511. Ib.

address to the crown for removal of 1837-8, p. 239. Hans. I), v. 163, pp.

a state prisoner from one place of con- 1324, 1325; v. 164, pp. 1734, 1824.

linement to another, ' where he may ' Mir. of Parl. 1840, p. 1702. Hans,

not be subjected to the treatment D. v. 168, p. 1187. Ib. v. 200, p.

which ho now endures.' Mir. of Parl. 421.



IN PARDONING OFFENDERS. 568

to whether, under the peculiar circumstances attending it, the home
secretary was disposed to recommend the prisoners to the royal
clemency. It was replied that the newspaper report of the trial was
not strictly correct, and that ' up to that time no petition on behalf
of those men had been received by the secretary of state.' m

For the same reason, it is not usual to communicate
to Parliament memorials or other papers on the subject
of the exercise of this prerogative in particular cases. 11

On April 24, 1863, a debate arose in the House of Commons on
a motion for papers touching the remission of the sentence of Jessie
Maclauchlan for the Glasgow murder. The home secretary, Sir
George Grey, was willing to produce the papers, but feared that
thereby ' a dangerous precedent might be established.' He added,
that it would ' be highly inconvenient for the public interest, if this
House is to become a court of appeal in criminal cases.' The
motion was withdrawn, but afterwards the government laid the
papers on the table.?

The following additional precedents illustrate the ? ce -

& . . r , . dents.

doctrine and practice on this subject.

In 1794, upon the conviction of Muir, Palmer, and others, for Muir, Pal-
seditious practices in Scotland, under a law peculiar to that kingdom, "Jf r ' am *
and which was more stringent than the English law on the same
subject, they were sentenced to transportation for fourteen years.
Their case was warmly espoused by the Whig party, and Lord
Stanhope, in the House of Lords, moved for an address to the
king, representing that it was the intention of the House to proceed
at once to examine into the circumstances of the condemnation and
sentence, and praying that meanwhile execution of the sentence
might be stayed. This motion was characterised by the lord
chancellor and other law lords as being unprecedented and un-
warrantable, an improper interference with the course of criminal
justice, and a departure from the constitutional course which per-
mitted persons aggrieved by a sentence themselves to petition the



m Hans. D. v. 166, p. 231. But on 189, pp. 871-876. Ib. v. 234, p.

March 26, 1867, Mr. Sec y . Walpole 1441. In Hall's case, in 1812, papers

explained his reasons for advising the were granted by government, but no

commutation of punishment of Wager, further proceedings took place. Parl.

who had been sentenced to death for Deb. v. 23, pp. 467, 934.

murder, Ib. v. 186, p. 567. Debates Hang. I), v. 170, p. 695.

on Toomer's case, Ib. p. 1203, and P Com. Pap. 1863, v. 49, pp. 265,

on Scott's case, Ib. v. 189, p. 1509. 271 , 403.

n Case of Greenland. Hans. D. v.



o o 2



504



THE ROYAL PREROGATIVE



Prece-
dents.



Frost,
Williams,
and
Junes.



crown for redress. The motion was negatived on division, the
mover alone voting for it.i Soon afterwards, the question was
submitted to the House of Commons, by Mr. Adam, a learned
Scotch advocate, who, in a most elaborate speech, attempted to
prove the illegality of the trials, and contended that the sentences
imposed had been unjustifiable and excessively severe. He moved
for various documents in support of his allegations, and also for an
address to the king, in which he recapitulated his reasons for
regarding the sentences as illegal and oppressive, and prayed that,
in consideration thereof, his Majesty would be graciously pleased to
exercise the royal prerogative of mercy on behalf of the prisoners.
This was opposed by the ministry, who maintained the legality and
propriety of the sentences, and defended the conduct of the judges.
On division the motions were negatived by large majorities. 1 "

In 1840 a similar case occurred. Messrs. Frost, Williams, and
Jones, having been convicted of treason, were sentenced to trans-
portation. It was contended by some that the law had been strained
against the prisoners, and that they were entitled to pardon, as an
act of right and justice. Accordingly on this ground, and irrespec-
tive of any reference to the prerogative of mercy, the House of
Commons was moved to address the crown to grant them a free
pardon. This view was declared, on the part of the government,
to be wholly unfounded, and proof was adduced of the legality of
the sentence ; whereupon the motion was negatived by a large
majority. 8

On December 3, 1867, the House of Commons was moved to
address the crown to furnish, periodically, to Parliament, copies of
memorials for remission of penal sentences, and received at the
Home Office, and of the replies thereto ; with a view to enable
Parliament to judge of the operation of the criminal law, and of the
general practice in the exercise of the prerogative of mercy. The
home secretary (Mr. Hardy) opposed the motion, on the ground
that such a return must be necessarily partial, unfair, and a great
impediment in the exercise of the prerogative. The motion was
withdrawn. 1 But in 1869 Mr. Bruce (home secretary), in answer
to a question, explained his reasons for recommending remissions
of sentences during his tenure of office."

On March 22, 1870, a private member introduced into the
House of Commons a Bill to alter and amend the law in regard to



i Parl. Hist. v. 30, p. 1298.

r Ib. pp. 1486-1576. Com. Jour.
v. 49, pp. 31 3-31 5. Arnould, Life of
Deninan, v. 2, p. 76.

Mir. of rarl. 1*40, pp. 1687-
1697.



1 Hans. D. v. 190, pp. 551-572 ; v.
227, p. 1712.

" Ib. v. 195, p. 1358; v. 200, pp.
1148, 2104. And the complaint of
the release of the Whitehaven Rioters.
Ib. v. 2 11, pp. 949, 1725.



IN PARDONING OFFENDERS. 565

the revision and commutation of capital sentences. But the Bill Prece-
was thrown out at its second reading/ dents,

On April 4, 1870, a motion, in the House of Lords, for a return
of cases of the exercise of the prerogative of mercy within the
past three years being opposed by ministers, as contrary to practice
and a dangerous precedent, was withdrawn.

On July 8, 1873, an amendment was proposed to the Supreme
Court of Judicature Bill, to empower the crown to refer petitions
for the remission or alteration of sentences, in cases of persons con-
victed of treason or felony, to the new Court of Appeal, for
consideration and advice : but after a short debate the motion was
withdrawn. w

In 1881 a return was made to an address from the House of
Commons, of the cases since 1860 in which appeal had been made
to the home secretary from England and Wales, for the remission
or commutation of capital sentences, with the result of the same. x

On July 11, 1820, Lord John Russell moved an address to the Sir M
king, for the liberation of Sir Manasseh Lopez, then in prison under L P ez -
sentence of the Court of King's Bench, for bribery and corruption,
at the suit of the House of Commons.? The home secretary (Lord
Castlereagh) opposed the motion, saying that ' whether the law
should have its execution was the peculiar prerogative of the crown,
and the responsible servants of the crown could not be justified in
recommending the interposition of the royal mercy upon the mere
suggestion of that House (he spoke it with perfect respect) any
more than upon the application of the humblest individual of the
land.' z After some discussion the motion was withdrawn. Never-
theless, the strong expression of feeling in the House in favour
of Lopez, on account of his advanced age, and the extenuating
circumstances attending his case, led to the mitigation of his sen-
tence, and he was shortly afterwards released, having been in cus^
tody only eight months, instead of the two years for which he was
condemned.*

On April 13, 1829, the Earl of Clancarty moved, in the House of Lord
Lords, for certain documents in the case of Mr. Macdonnell, who had : .

been sentenced to imprisonment for libel, but had been pardoned, in j re an( j.
the king's name, by the lord lieutenant of Ireland, under circum-
stances which, it was currently reported, did not warrant any
abridgment of his term of imprisonment. The papers asked for



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