The English works of Thomas Hobbes of Malmesbury, Volume 06 (of 11)
Thomas Hobbes · en
_P._ But for our understanding of one another, you ought to have said so
at first. I understand now, that to pardon murder or felony is
thoroughly to save the offender from all the punishment due unto him by
the law for his offence.
_L._ Not so; for Sir Edward Coke in the same chapter, p. 238, saith
thus: “a man commits felony, and is attainted thereof, or is abjured;
the King pardoneth the felony without any mention of the attainder or
abjuration: the pardon is void.”
_P._ What is it to be attainted?
_L._ To be attainted is, that his blood be held in law as stained and
corrupted; so that no inheritance can descend from him to his children,
or to any that make claim by him.
_P._ Is this attaint a part of the crime or of the punishment?
_L._ It cannot be a part of the crime, because it is none of his own
act; it is therefore a part of the punishment, viz. a disherison of the
offender.
_P._ If it be a part of the punishment due, and yet not pardoned
together with the rest, then a pardon is not a thorough remitting of the
punishment, as Sir Edward Coke says it is. And what is abjuration?
_L._ When a clerk heretofore was convicted of felony, he might have
saved his life by abjuring the realm; that is, by departing the realm
within a certain time appointed, and taking an oath never to return. But
at this day all statutes for abjuration are repealed.
_P._ That also is a punishment, and by a pardon of the felony pardoned,
unless a statute be in force to the contrary. There is also somewhat in
the statute of 13 _Rich. II_, _c._ 1, concerning the allowance of
charters of pardons, which I understand not well. The words are these:
“No charter of pardon for henceforth shall be allowed before our
justices for murder, or for the death of a man by await, or malice
prepensed, treason, or rape of a woman, unless the same be specified in
the same charter.” For I think it follows thence, that if the King say
in his charter that he pardoneth the murder, then he breaketh not the
statute, because he specifies the offence: or if he saith he pardoneth
the killing by await or of malice prepensed, he breaketh not the
statute, he specifies the offence. Also if he say so much as that the
judge cannot doubt of the King’s meaning to pardon him, I think the
judge ought to allow it, because the statute saveth the King’s liberty
and regality in that point; that is to say, the power to pardon him,
such as are these words, “notwithstanding any statute to the contrary,”
are sufficient to cause the charter to be allowed; for these words make
it manifest that the charter was not granted upon surprise, but to
maintain and claim the King’s liberty and power to show mercy when he
seeth cause. The like meaning have these words, _perdonavimus omnimodam
interfectionem_; that is to say, we have pardoned the killing, in what
manner soever it was done. But here we must remember that the King
cannot pardon, without sin, any damage thereby done to another man,