Narrationes modernæ, or, Modern reports begun in the now upper bench court at VVestminster in the beginning of Hillary term 21 Caroli, and continued to the end of Michaelmas term 1655 as well on the criminall, as on the pleas side : most of which time the late Lord Chief Justice Roll gave the rule there : with necessary tables for the ready finding out and making use of the matters contained in the whole book : and an addition of the number rolls to most of the remarkable cases / by William Style ...

Custodes and Rickabye.

Mich. &c. 1652. Banc. sup.

VPon an old rule of this Court, made in the beginning of King Charls,* 1.1 The Court was moved to deliver their opinion in the Case of Rickaby that had been endicted for murther, and had obtained his pardon, whether the pardon was good and to be allowed, or that he should be tryed notwith∣standing his pardon. Roll chief Iustice answered, This Case was argu∣ed often at the Bar 8 Caroli, which was long agoe, and before our times, therefore let us have books, and argue it again, for we have yet heard no Ar∣guments in the Case. At another day by rule of Court the Case was again moved, and argued by Wadham Windham for the Keepers, that the par∣don was not good, nor ought to be allowed, because by the pardon murther was not pardoned, and in his argument he made these questions, viz. 1. Whether the King could pardon murther by the Common Law. 2. Whe∣ther he might do it by the Law of God. 3. Whether he might do it by the Statute. 4. Whether the pardon be made good by the non obstante inclu∣ded in it. For the first, the King ex Officio may pardon Man-slaughter by the Common Law, and in some cases he might pardon murther, viz. Where there is but only malice implyed in the Murtherer, but wilfull mur∣ther he could not pardon, because it is against the Law of God, and he cited 12 H. 8. f. 5. Brudenell. By the Law delivered to Noah,* 1.2 shedding of blood was made unpardonable, and that is a perpetual Law, Stat. 13. R. 2. C. 1. The King may delegate administration of Iustice to his Ministers, but not dispensation of mercy. By the Statute of 13 R. 2. c. 1. The King was ad∣monished not to pardon murther so generally as he used, but enacted, That if in his pardons he did not expresse the word Murther, the pardon should not be good, and the word Murther is not expressed in this pardon, and therefore it is not good, nor to be allowed, 3 Instit. 236. 8 H. 6. 20. 9 H. 6. 8. Kel. 9 Nor doth the King in this pardon recite the Endictment it self, for then it may be it might have altered the Case, but only recites the fact generally, and though the words in the pardon be general, and seem to in∣clude murther, yet they cannot make the pardon good, because it wants the express word it self, viz. Murther, and although the Charter be not void, yet it cannot be allowed for want of that word, nor can the general non obstante in the pardon dispence with the Statute of 13 R. 2. for all non obstantes are good only where the King takes notice of the Law wherewith he dispenseth. And as to the Statute of 13 R. 2. First, By it the just power of the King is made certain, and ought to be strictly pursued. 2ly. That Statute was made of grace, and as a boone, to the people, in which they have a special interest, and is not to be abridged. 3ly. It was made for the more free administration of Iustice, with which the King may not dispence, Hob. f. 214. Here & Lyliars case 11 Rep. f. 88. And although the party here be prosecuted at the sute of the King, yet the prosecution is for the benefit of the people, and therefore the King cannot pardon him, 3 Inst. f. 337 and so he prayed the pardon might not be allowed. Hales appoint∣ed by the Iudges to argue ad informandum conscientiam, as Windham also was, argued for Rickaby, that the pardon was to be allowed, for the que∣stion

now is not whether the pardon be to be granted or no. And 2ly he held that here is a good non obstan••e in the pardon to dispence with the Sta∣tute, and he argued that murther at the Common Law was pardonable by other words, as well as by the word murther, viz. by the word Felony, and by the word Death of a man, for murther is but Felony in a high de∣grée, and majus et minus non variant spe••iem, 4. rep. Holfords case, and the Statute of 13 R. 2. makes this cleer, and that Statute is dispensed with by the non obstante. For that Statute was not made to disa∣ble the King from pardoning murther, but to direct and enform the King, and with that the King may dispence by a non ob∣stante, 16 R. 3. Tit. graunts, 34. & 5 Iac. in this Court, Bakers case. And here is a dispensation by the Statute of R. 2. that this may be said a par∣don at the Common Law, for it appears by the words of the pardon, that the King intended thereby to break through the Statute, and to pardon the party what ever his offence was, for although the non obstante do not ex∣pess the word murther, yet it is good, for there are equivalent words to murther in the pardon, for the non obstante to dispence withall. As if the King grants a pardon notwithstanding the Statute of Rich. 2. It is ne∣cessary to be referred to that clause in the Statute, which is to be dispensed withall, and so is it here, for there is no other end for the King to dispence with the Statute of R. 2. C. 13. but for this clause, and besides here is a spe∣cial non obstante, and not a general, and for authorityes he cited Stamford 101. pleas of the Crown, 236. and for presidents 31 Eliz. 4 Iac. 5 Iac. 6. Iac. and many others, and said, that he found none against them. Roll chief Iustice, Were it not for the presidents I hold there would be but little question in the case; but some of these questions have been debated in some times, although we cannot question the King for granting such pardons, yet it is questiona∣ble whether he may grant them by the Law of God; but the King may do it in some cases,* 1.3 but here is a Statute that sayes he shall not do it, if he do not take notice of the fact in his pardon by the name of murther, and here is no such expression, but the words are general; if the King pardon malum ••se with an non obstante it is not good; But let us see Presidents, and we will advise till the next Term. The next Term Roll chief Iustice in the be∣half of himself, and the other Iudges, delivered the opinion of the Court in this case to this effect. We are all of one opinion, and my brothers have desired me to deliver the reasons of th••irs, and my opinion. First I will open the Record, which in effect is this, Rickaby was endicted at Durham for murther, and the endictment was removed into this Court by a certio∣rari, and Rickaby brought hither by a habeas corpus, and being demanded what he could say for himself, why he should not be adjudged to die, he plea∣ded the pardon of the late King, which pardons the death of Curtine in very general words; but the pardon doth not expresse the word murther, and in his plea he mentions not the Statute of 10 Ed. 3, by a non obstante, and this is set forth for confirmation of his plea, and the Statute of 13 R. 2. is alleged with a non obstante. The case in brief is, Rickaby and others endicted for killing George Curtine, and brought bither pleads his pardon, as is before expressed. The question is, whether the pardon is to be allowed or not: This case hath been well argued, and the like case with this was never called into question, or argued before this, and therefore if we shall not allow this pardon now, we have better reason to move us to it than others have had to do the contrary, and therefore we shall send him in∣to the Country to receive Iustice there for his offence, for we are all of one opinion, that the pardon is not to be allowed, and that for these reasons, the question here is not whether the King will pardon murther; but Cook saith, the King will not pardon it, if he know it to be murther; but the first questi∣on

is, whether the King can pardon murder without a non obstante: 2ly. Whether he can do it with a special non obstante. 3ly. Whether he can pardon it by this non obstante in this Charter of pardon. 4ly. Whether Rickaby hath pleaded this non obstante, so that he may take advantage of it. For the first point we do not absolutely disallow the pardon; but we are to enquire whether here be murther or not, it there be murther, that it may be disallowed, otherwise that it may be allowed.* 1.4 The Statute laws were made for preservation of the publique peace, and to restrain pardons for murther, so that after the making of the Statutes, murther could not be pardoned without a non obstante in the pardon, though before it might have been pardoned in general words. And the Parliament hath made divers Statutes to restrain pardons, and that murther should not be so generally pardoned as before. 2 E. 3. 4 E. 3. 14 E. 3. 27 E. 3. C. by which Statutes it may appear, that the opinion was, that the King could not dispence with the Sta∣tutes with a non obstante, and the end of all these Statutes was to enform the King to examine whether the fact he intended to pardon was murther, and that he should not grant a pardon for murther, without expressing the word murther in the pardon, and with a non obstante also,* 1.5 22 H. 7. 91. Kelway. 8 H. 6. f. 20. 9 E. 4. f. 26. Cook, Pleas of the Crown 236. and so the Law is, without a non obstante. 2ly. Whether the King can pardon murther with a non obstante, where the word murther is not expressed. To that I say, that if it had been so, yet the pardon would not have been good, for the Statute cannot be dispensed with by a non obstante, because the Sta∣tute was made to reform publique abuses, for the benefit of the Common-Wealth, 11. rep. Cooks Pleas of the Crown, 237. the King cannot pardon a common nusance. 2ly. The King hath bound himself by expresse words in the Statute, and he cannot dispence with them with a non obstante, for then such Statutes made for the advancement of justice would be void, and the King cannot pardon a recognisance for the peace before it is broken, and the King may bind himself in such manner by expresse words, as my Lord Bark∣leyes case is, with the Statute of 1 Iac. concerning Bishops the King cannot dispence, but with the Statute of 1 & 13 Eliz. he may. Doctor Hutchin∣sons case, Mich. 10. Iac. C. B. Hob. 103. the King cannot dispence with this Statute, because it was made for the advancement of Iustice. For the third point, though the King might dispence with the Statute by a non ob∣stante, yet not with this non obstante in this pardon, for the King doth not take notice of the offence in the non obstante, and the King is deceived here, which the Law will not suffer, and here is a hiding of the offence from the King, which is against the meaning of the Statute. 2ly. This manner of pardoning is against all manner of practise for two hundred years, and was never used till 2 Iac. but only in Spencers case, which was carryed with a strong hand, and allowed only pro hac vice, 21 Eliz. by Popham the At∣torney general by the special command of the Queen, & untill 2 Iac. for 200. years no non obstante used of the Statute of 13 R. 2. but this is grown up of late years, and a Iudge of our own times hath told me that he hath disal∣lowed it. 3. Inst. 105. it hath been used of late times to make a lease of the parties life. viz. to respite execution untill the time of 2 Iac. and that al∣lowance I formerly mentioned pro hac vice, may be questioned whether it were good or no. For the fourth point the pleading of the pardon is not good, for he hath not pleaded a non obstante for the pardon of the murther, but only to dispence with the binding to the good behaviour, and the pardon is only recited to prove the plea, and therefore it is not to be allowed. Therefore let the Prisoner ire sine die, and let the matter be inquired in the County where the fact was done. Yet we will consider whether he shall be

tryed in the Country or here, in the mean time, Marshall cake care at your pe∣rill that you keep him in salva custodia.

Notes

• * 1.1

  Arguments and Iudge∣ment whether a pardon for murther was well pleaded.
• * 1.2

  Gen. ver. 6.
• * 1.3

  Pardon.
• * 1.4

  Murther.
• * 1.5

  Non obstante. Dispensation.