Prerogative of mercy. In early times the operation of the Royal Prerogative of Mercy was far wider than at the present day, as it was not only extended to some persons who in later ages would not be considered to have incurred any criminal respon-sibility, e.g., persons who had committed homicide by misadventure or in self-defence (Pollock and Maitland's Hist. Engl. Law, vol. ii., pp. 476 et seq.), but was even extended to jurors who had been attained for an oath that, though not false, was fatuous: ibid. p. 661. The power of pardoning offences is stated by Blackstone to be one of the great advantages of monarchy in general above every other form of government, and which cannot subsist in democracies. Its utility and necessity are defended by him on all those principles which do honour to human nature: see 4 Bl. Com. c. 31, p. 397. In early times, again, there were fewer offences that did not admit of being pardoned. In appeals (i.e., private accusations of felony) which were not the suit of the King, but of the party injured, the prosecutor might release, but the King could not pardon: 3 Inst. 237. Appeals by wager of battel (see that title) were abolished in 1819 by 56 Geo. 3, c. 46, in consequence of Ashford v. Thornton, (1818) 1 B&A 405. Blackstone observes that the King could not pardon a common nuisance while it remains unredressed, or so as to prevent an abatement of it; though afterwards he might remit the fine, because though the prosecution is vested in the King of avoid multiplicity of suits, yet (during its continuance) this offence savours more of the nature of a private injury to each individual in the neighbourhood than of a public wrong. The King cannot pardon some offences against a popular or penal statute, after information brought: 3 Inst. 238. By the passing of the Habeas Corpus Act, 1679 (31 Car. 2, c. 2), Chit. Stat. tit. 'Habeas Corpus,' the offence of sending a subject to a foreign prison against s. 12 of that enactment was made unpardonable by the King. The Prerogative of Mercy was frequently invoked to alter the sentence, either to obviate the necessity for the literal execution of the sentence in cases of high treason, or to change the sentence of death by hanging for felony into one of decapitation: cf. Advice given by the judge to James II. in Lady Lisle's case, 11 How St Tr 297 (378). In the eighteenth century conditional pardons for felony were regularly granted in order that the offender might transport himself for a term of years. formerly free pardons were only grantable under the Great Seal, but by s. 13 of the Criminal Law Act, 1827 (7 & 8 Geo. 4, c. 28) (see Chit. Stat. Tit. 'Criminal Law'), the King may grant a free pardon for felony by sign manual. The practice of obtaining a free pardon before 1848 was fully explained in a letter to the Home Secretary by the judges who formed the Special Commission before whom Frost and others were tried for high treason in 1839, see Queen v. Frost, (1839) 4 St Tr (NS) 85 (479, 480).
The anomaly of pardoning either an innocent or guilty man on the ground of his innocence, protested against by Lord Denman, L.C.J., and Parke and Alderson, BB., before a Select Committee of the House of Lords in 1848 (Parl. Pap. Session 1847-48, cd. 523), and by the Beck Commission in 1904 (Parl. Pap. 1904, cd. 2315, Rep.), may, if he thinks fit, be avoided under the provision in the Criminal Appeal Act, 1907, s. 19, by which the Home Secretary may, if he thinks fit, refer the case to the Court of Criminal Appeal (as upon an appeal) or ferer any point to that Court (see also s. 4, ibid.). This is the direct adoption of a suggestion made by Sir James Graham to Baron Parke more than sixty years before. Cf. Parl. Pap. 1847-48, cd. 523, p. 5. The Prerogative of Mercy is not affected by the Act (see s. 19). See PARDON.
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