to lay the petition before her majesty, the necessary conclusion being, that the petitioner is not a proper object of the royal mercy.

Fees due for Obtaining Pardons Regulated.]-The expenses attendant upon obtaining the royal pardon were till lately so considerable, as in some instances to have disabled, or at least to have deterred, necessitous convicts from applying for it, even though encouraged by the court so to do. Wherefore a statute was passed, (58 G. III. c. 29,) which enacts that "in future no fee, gratuity, or other dues paid or payable for or in respect of any grant of a pardon by his majesty, his heirs and successors, or for or in respect of any letters patent, charter, warrant, bill, docket, or other instrument appertaining thereto, or the transcript of any such instrument, shall be paid, or payable, by, or on behalf of, the person or persons, in whose favour, or to whom, such pardon shall be granted; but that all fees which are now paid and payable, for the granting and passing any such pardon or pardons, shall be paid by the lords commissioners of his majesty's treasury of the United Kingdom of Great Britain and Ireland, in the same manner and by the same persons, as other law expenses, on behalf of his majesty, are paid.

"And no such letters patent, charter, warrant, bill, docket, instrument, or transcript as aforesaid, shall be subject to, or liable to be charged with, any stamp duty, or duties whatever."

Effect of Transportation and subsequent Remission of Part of the Sentence].-It has been observed that pardons after convictions, before courts of session of the peace, may, like those before superior tribunals, be either absolute, or conditional. Some modern statutes give a power of unlimited transportation to the courts, and many of them for very long terms. A question therefore arose, with what evil consequences transportation, and a subsequent remission of a portion of such sentence by the governor of the country to which such convict was sent, (and which power of remission is entrusted to such governor by his majesty's commission, as a reward of good behaviour, subject however to considerable limitations by a late statute,) (u) would be attended. These points were fully discussed in the court of king's bench upon the pleadings in an action upon a bill of exchange, brought by the plaintiff as indorsee against the defendant as payee.

The plaintiff had been convicted of felony at the Old Bailey, and

(u) 2 & 3 W. IV. c. 62, s. 2. Ante.

received judgment of death, which was afterwards commuted for transportation to New South Wales for the term of his natural life, whither he was accordingly sent. The governor of New South Wales remitted the residue of the sentence, upon which the plaintiff returned to England.

The attainder of the plaintiff was pleaded in bar to the action, and the remission of the sentence by the governor of New South Wales was replied by him in a subsequent stage of the pleadings.

The case was argued upon demurrer, principally upon the two following points:—

First. Whether the transportation or actual conveyance of the person of the plaintiff to New South Wales operated as a present and immediate pardon, and an immediate restoration to all civil rights.

Secondly. Whether the attainder of the plaintiff was properly pleadable in bar, or ought to have been pleaded in disability only to the action, founded upon a personal demand arising after the attainder.

Upon the first question the court were unanimously of opinion that the transportation of the plaintiff did not operate as a present and immediate pardon; that the words of the statute 8 G. III. c. 15 were not satisfied by his being merely carried over, but only by his being carried over and remaining during the term for which he was ordered to be transported; that the remission of the governor of New South Wales had only the same effect as if his majesty had signified his intention of mercy under his sign manual, and his name was to be inserted in the next general pardon under the great seal.

Upon the second point, also, they were of opinion, that the attainder of the plaintiff was properly pleadable in bar, all personal property and rights of action arising to the party attainted vesting in the crown by its prerogative (v).

Effect of Pardons to Acquit of all Penalties and Forfeitures.]Subject to the interpretation which the foregoing case imposes on us respecting transportation and its consequences, it may be laid down in general terms, that the effect of pardon, like that of the allowance of clergy, is not merely to prevent the effect of the punishment denounced by the sentence, but to give the defendant a new character, credit, and capacity; in the words of Blackstone (vol. 4, p. 402), "to make the

(v) Bullock v. Dodds, 2 B. & Ald. 1 M. & W. 145, S. C. 258.

See R. v. Bridger, T. & Gr. 437;

offender a new man; to acquit him of all corporal penalties and forfeitures annexed to that offence for which he obtains such pardon; and not so much to restore his person, as to give him a new credit. But nothing can restore or purify the blood when once corrupted, if the pardon be not allowed till after attainder, but the high and transcendant power of parliament. Yet, if a person attainted receive 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."

Pardon now Grantable under the Sign Manual.]—In order to do away with the necessity of a pardon under the great seal, for the purpose of restoring the offender to his civil rights in ordinary cases, it is enacted (w)," that where the king's majesty shall be pleased to extend his royal mercy to any offender convicted of any felony punishable with death, or otherwise, and by warrant under his sign manual, countersigned by one of his principal secretaries of state, shall grant to such offender either a free or conditional pardon, the discharge of such offender out of custody in the case of a free pardon, and the performance of the condition in the case of a conditional pardon, shall have the effect of a pardon under the great seal, for such offender, as to the felony for which such pardon shall be so granted. Provided always, that no free pardon, nor any such discharge in consequence thereof, nor any conditional pardon, nor the performance of the condition thereof, in any of the cases aforesaid, shall prevent or mitigate the punishment to which the offender might otherwise be lawfully sentenced, on a subsequent conviction for any felony committed after the granting any such pardon."

The Effect of such Pardon in Re-capacitating a Felon Convict.]—And inasmuch as doubts were entertained, whether this provision extended to those cases in which, on the abolition of benefit of clergy, discretionary punishments were substituted by the direct sentence of the court, it was afterwards enacted, "that where any offender hath been or shall be convicted of any felony not punishable with death, and hath endured or shall endure the punishment to which such offender hath been or shall be adjudged for the same, the punishment so endured hath and shall have the like effects and consequences as a pardon under the

(w) 7 & 8 G. IV. c. 28, s. 13. See R. v. Haddenham, 15 East, 463.

great seal, as to the felony whereof the offender was so convicted: provided always, that nothing herein contained, nor the enduring of such punishment, shall prevent or mitigate any punishment to which the offender might otherwise be lawfully sentenced on a subsequent conviction for any other felony" (x).

Offenders receiving Pardons on condition of Imprisonment to be kept to Hard Labour.]—It is also enacted (y), that offenders sentenced to transportation, or pardoned on condition of imprisonment, may be confined in the Penitentiary, at Milbank, until they can be sent to the place of their destination, or even till the expiration of the term of their sentence. If any person ordered to be confined in the Penitentiary shall, during the term for which he shall be ordered to confinement, break prison, or escape from the place of confinement, or in his conveyance to such place of confinement, or from the person having the custody of such offender, he shall be punished by an addition of three years to the term for which he, at the time of his breach of prison, or escape, was subject to be confined; and if such person so punished by such addition to the term of confinement, shall afterwards be convicted of a second escape, or breach of prison, he shall be transported beyond the seas for life, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years (z), with or without hard labour, and with or without solitary imprisonment, not exceeding one month at any one time, and three months in any one year, at discretion of the court (a).

Voluntary Transportation.]-It sometimes happens, that a prisoner obtains a pardon after sentence of transportation, on condition of giving security by recognizance, that he will banish himself. If he fail in the condition, he will himself indeed be guilty of no crime cognizable by the law, but the recognizances will be forfeited, and of course estreated. But another case sometimes occurs, which calls for a single observation; viz. that of an offender of a higher station than ordinary, whose punishment would be imprisonment, if sentence were passed, and who, to avoid the ignominy, or inconvenience of imprisonment, solicits permission, after conviction, but before sentence, to exchange imprisonment by sentence, for a voluntary transportation. This gratuitous commutation also (though by an augmentation of

(x) 9 G. IV. c. 32, s. 3.

(y) 56 G. III. c. 63; 59 G. III. c. 136.

(z) 59 G. III. c. 136, s. 17, as amended by 7 W. IV. & 1 V. c. 91, s. 1. (a) 7 W. IV. & 1 V. c. 91, s. 2.

punishment in the eye of the law), is to be accomplished after the same manner; viz. by recognizance; which, being an engagement of record to the court, is considered sufficient security to warrant a sentence of a nominal fine, and a delivery of the offender to his sureties.

SECTION VII.

OF FORFEITED RECOGNIZANCES AND ESTREATS.

Estreats of Recognizances.]—What has been just advanced respecting these recognizances in open court (operating to a certain degree, like conditional pardons, as commutations of punishment), brings us, by a sort of consecutive transition, to a brief consideration of the estreats of recognizances, being one of the matters of which this chapter professes to treat, as arising out of the termination of the court's authority.

Recognizances, as has been more than once observed, being only the means pointed out by the law to secure the performance of certain conditions imposed by it (b), the estreat of these recognizances is the consequence of the failure of those conditions. And breach, therefore, of them, while the court continues sitting, can only be considered, as it were, incipient; to be completed and confirmed by a continuance of default, or to be superseded and avoided by compliance before the expiration of the session. So that, though the moment a recognizance is taken it becomes a record, yet it had always been the practice, that, upon the party bound by recognizance appearing in court, or doing any other act imposed by the conditions, exhibiting a satisfactory affidavit of any sufficient reason for his non-compliance with the terms, for the court, on motion being made for that purpose, to take off (as it is termed) the estreat in that particular instance. Supposing the authority of the court to have been thus exercised, what is to follow must depend on the circumstances of each particular case. If appearance in court were the only object to be obtained, that appearance may be attended with all the consequences in contemplation; or a respite of the question to be discussed may be granted by the same authority which has superseded the estreat; or a new recognizance may be required in open court; or, lastly, if the affidavit be insufficient to procure these consequences, the estreat will be confirmed.

(b) See R. v. Dover (Mayor, &c.), 5 Tyr. 279; 1 Cromp. & M. 726.