258

Ancaster, the Earl of Carrington, and the Marquis of Cholmondeley are jointly seised in unequal shares, and which is executed by the first-named peer in accordance (as is understood) with a family arrangement for its execution by the respective heads of the several families alternately during successive reigns. The dignity of the Crown of England is (as Lord Coke observes) without all question descendible to the eldest daughter and her posterity; and this is an exception to the general rule of descent. An estate in coparcenary is destroyed by descent of the entirety to one of the coparceners, or by the alienation by one coparcener of his share to a stranger, which disunites the title to the alienated share, or by partition, which disunites the possession. Littleton enumerates (ss. 243 et seq.) four modes of voluntary partition, all of which (as well as some others mentioned by Lord Coke) are now practically obsolete, the Real Property Act, 1845, 8 & 9 Vict. c. 106, s. 3, having rendered a deed necessary in all cases of voluntary partition of tenements not being copyhold, though, of course, an agreement in writing within the Statute of Frauds, 29 Car. II. c. 3, to make partition will be effectual in equity. It is a mistake to suppose that the last-mentioned statute rendered a deed necessary in any case in which it was not necessary before. The modern practice upon a voluntary partition is, if the property be freehold, to vest the entirety in a grantee to uses, which are separately declared of the portions taken in severalty by each party, so as to make him a purchaser; if the property be copyhold, it is similarly dealt with by means of a covenant by all parties to surrender, followed by a surrender accordingly of the different tenements or portions of tenements to be held in severalty; and if it be leasehold, then the portions taken in severalty by each party are directly assigned to him by the others, such assignment operating by way of release, as before observed. When the lands are incapable of being equally divided, the practice alluded to by Littleton (ss. 251 et seq.) of reserving a rent for equality is no longer followed, but that result is obtained by an immediate money payment. The last method of partition mentioned by Littleton is that by writ de participatione facienda, the word participatione being, however (according to Lord Coke), a misprint for partitione. By this writ partition amongst coparceners might have been constrained at the instance of any one of them without the consent of the others, and as the ancient law did not so constrain any other kind of joint owners, Littleton found in the existence The writ was abolished of the writ an origin for the name parceners.

by the Real Property Limitation Act, 1833 (3 & 4 Will. Iv. c. 27), s. 36; and at the present day compulsory partition between coparceners is effected through the Court (by virtue of the original equitable jurisdiction for that purpose, as modified under the Partition Acts) in the same manner as between other joint owners. Partition by consent can also now be effected under the Inclosure Acts, 1845 to 1882, through the Board of Agriculture, to whom by the Board of Agriculture Act, 1899 (52 & 53 Vict. c. 30), have been transferred the powers of the Inclosure Commissioners. The foregoing observations apply generally, except where otherwise stated, to coparcenary by custom. It should be noticed that under the heading of "Parceners by Custome" Littleton mentions the Welsh gavelkind, which was confirmed by Statutum Wallie 12 Edw. 1., but taken away by 34 & 35 Hen. VIII.; and the Irish gavelkind custom, also long since abolished, is referred to by Lord Coke. Littleton under this head also mentions (somewhat inappropriately as it would seem) a species of coparcenary which arose where a father seised

of lands gave part to the husband of one of his daughters in frankmarriage. In this case, if the father died seised of the remnant, neither husband nor wife might share in such remnant without putting the lands given in frankmarriage into hotchpot. Gifts in frankmarriage, however, are now obsolete.

It remains to explain in greater detail the mode of descent of an estate in coparcenary. Under the Inheritance Act, 1833 (3 & 4 Will. IV. c. 106), descent is now in every case traced from the purchaser, except on total failure of his heirs (an event which is provided for by the Law of Property Amendment Act, 1859, 22 & 23 Vict. c. 35, ss. 19, 20). And on failure of male issue of the purchaser, the inheritance descends to his female issue, who inherit together. Thus if A., the purchaser, die leaving two or more daughters and no son, the daughters inherit in equal shares as coparceners. So if A. die leaving a son and two or more daughters, and the son afterwards die without issue, the daughters inherit as coheirs of A. But if one of the daughters die leaving a son only, or daughters only, her share will descend, not to her son or daughters and her sister or sisters as coheirs of A., but to her son or daughters alone by right of representation (see Cooper v. France, 1850, 19 L. J. Ch. 313; In re Matson, [1897] 2 Ch. 509; Owen v. Gibbons, [1902] 1 Ch. 636). These rules apply alike in cases of remoter relationship, e.g. where the purchaser dies without issue, without father and without brother, and the descent is traced through his father to his sisters. Mutatis mutandis, they apply also to descents according to the custom of gavelkind, which in Kent extends to collaterals, however remote (Robinson on Gavelkind, 5th ed. by Elton, p. 92); but it must be borne in mind that many lands in Kent have been disgavelled by Act of Parliament, and as regards descents elsewhere it should be noticed that the existence and extent of a custom of descent have always to be strictly proved (In re Smart, 1881, 18 Ch. D. 165). With respect to the application of the Inheritance Act, 1833, to customary descents, Sugden, R. P. Statutes, 270, pl. 27; Wms. R. P., App. B.; and Shirt v. Shirt, 1879, W. N. 33, may be referred to.

As regards the historical origin of coparcenary, it seems to be generally admitted that partible descents are of great antiquity throughout Europe and elsewhere, and that in ancient times the custom of partible descent was very widely spread. In England the custom of primogeniture, for which the Normans had everywhere a strong preference, was in the end generally established by them, but doubtless socage lands were partible before the Conquest, and continued to be so for a considerable time afterwards. Apparently coparcenary is a relic of this ancient custom of partibility. The customary division of socage lands amongst males perished, except in Kent, and by the usage of various manors elsewhere, but its division amongst females continued. Both modes of division exist in the typical custom of Kentish gavelkind, and always have so existed, as appears from the Statute de Prerogativa Regis, 17 Edw. II. c. 16, which states the rule to be that omnes heredes masculi participant hereditatem similiter omnes fæminæ sed fæminæ non participant cum masculis. See upon this subject, Maine's Early History of Institutions and Robinson on Gavelkind, 5th ed. by Elton.

Parchment.-Skins of sheep dressed for writing. It is said to have been invented by Eumenes II., King of Pergamus (who reigned B.C. 197-159), in consequence of the prohibition of the export of papyrus from Egypt by Ptolemy Epiphanes. The probability is that some

improvement was made in the manufacture at Pergamus, but Heredotus. mentions writing on skins as common in his time. It is used for deeds; and before November 1, 1875, was also used for writs of summons.

Pardon. The power of pardoning offences is one of the prerogatives of the Crown, and cannot be delegated to any subject within the realm (see 27 Hen. VIII. c. 24, s. 1); it is, however, one of the powers usually entrusted to colonial governors in their commissions (see Re A Special Reference from the Bahama Islands, [1893] A. C. 138). In England it is exercised upon the advice of the Secretary for State (for the Home Department). Formerly all pardons were required to pass under the Great Seal, and this would still appear to be necessary in treason, murder, and misdemeanor (R. v. Boyes, 1861, 1 B. & S. 311). A sign-manual warrant or privy seal was, however, sufficient to justify the discharge of the prisoner (R. v. Miller), 1771, 1 Leach, 74; and it was formerly the practice to bail the prisoners on such signmanuals to appear and plead the next general pardon that should come out. By the Criminal Law Act, 1827, 7 & 8 Geo. IV. c. 28, s. 13, in the case of all felonies, whether capital or not, a free or conditional pardon may be granted by warrant under the sign-manual, countersigned by a Secretary of State. Discharge of the offender out of custody in the case of a free pardon, and performance of the condition in the case of a conditional pardon, have the effect of a pardon under the Great Seal. By 9 Geo. IV. c. 54, s. 33, a similar provision is made as to Ireland as to pardons, free or conditional, for felony by warrant in due form. Old statutes, still unrepealed, require that where a pardon is granted at anyone's suggestion, the fact of such suggestion, and the name of the person making it, should be embodied in the pardon (27 Edw. III. stat. 1, c. 2); and that no pardon for treason, murder, or rape should be granted unless the offence be specified in the pardon (13 Rich. II. stat. 2, c. 1; 16 Rich. II. c. 6; 2 Hawk. P. C. c. 37, s. 2). A pardon obtained by false suggestion may be avoided. A pardon may be granted absolutely, or subject to a condition either precedent or subsequent; if the condition on which a pardon is granted be void, the pardon itself is void (The Canadian Prisoners' Case, 1839, 3 St. Tri. N. S. 963, at p. 1034). A doubt whether the Crown had power to grant a conditional pardon for treason in Ireland against the will of the party, was removed by 12 & 13 Vict. c. 27.

A pardon may in law be granted either before or after trial and conviction. If granted before trial, unless it be by Act of Parliament, the pardon must be pleaded in answer to the indictment, or it is held to be waived.

There are certain restrictions on the power of pardoning. It is provided by the Act of Settlement, 12 & 13 Will. III. c. 2, that no pardon under the Great Seal shall be pleadable in bar of an impeachment by the Commons of England. The precise effect of this section is discussed in R. v. Boyes, 1861, 1 B. & S. 311, where a somewhat narrow construction was suggested by Blackburn, J. It was there held that a witness, who had received a pardon for corrupt practices at elections, could not refuse to answer on the ground that his answers might expose him to impeachment, without showing that there was some probability of an impeachment.

The Crown cannot remit the punishment of premunire, imposed by the Habeas Corpus Act, 1679, for the offence of illegally sending in

habitants or residents of the realm as prisoners to places out of the realm (31 Car. II. c. 2, s. 11).

Nor can the Crown make restitution of blood where the blood has been corrupted by ATTAINDER (q.v.), for that must be done by Act of Parliament, 3 Co. Inst. 233.

Another restriction on the power of pardon arises from the operation of the legal maxim, Non potest rex gratiam facere cum damno et injuria aliorum. The Crown, it is laid down, cannot at common law pardon an offence against a penal statute after information brought, for thereby the informer has acquired a property in his part of the penalty; but there is now statutory power in certain cases to remit penalties, even though not payable to the Crown. It is also laid down that the Crown cannot pardon a common nuisance while it remains unredressed, or so as to prevent an abatement of it, nor can the Crown discharge a recognisance to keep the peace towards an individual (Hawk. 2 P. C. c. 37, s. 33).

The power of the Crown to pardon extends to sentences of a purely punitive character inflicted for contempt of Court (Re Bahama Islands, [1893] A. C. 138). And it is not the practice to interfere with a committal for contempt when the contempt consists in refusal to do what is right to a party litigant (Seaward v. Paterson, [1897] 1 Ch. 545, 559).

As to the effect of a pardon, it is said by Hawkins, 2 P. C. c. 37, s. 45, that it does so far clear the party from the infamy and all other consequences of his crime, that he may not only have an action for a scandal in calling him a traitor or felon after the time of pardon, but may also be a good witness notwithstanding the attainder or conviction; because the pardon makes him, as it were, a new man, and gives him a new capacity and credit. And see Cuddington v. Wilkins, Hob. 681; 80 E. R. 216, 231; Leyman v. Latimer, 1877, 3 Ex. D. 15, 352; Monson v. Tussauds, Ltd., 1894, 1 Q. B. 671, 687. Hawkins also says (s. 37) that a pardon to a simonist coming into his church contrary to 31 Eliz. c. 6, or to an officer coming into his office by a corrupt bargain, may relieve from criminal prosecution but will not enable the clerk to hold the church, or the officer to retain the office, because they are absolutely disabled by statute. However, in Hay v. Justices of Tower, etc., 1890, 24 Q. B. D. 561, Pollock, B., and Hawkins, J., held that a pardon removed the disqualification to hold a spirit licence imposed by 33 & 34 Vict. c. 29, s. 14, on every person convicted of felony. An earlier case (R. v. Vine, 1875, L. R. 10 Q. B. 195) had decided that this disqualification was not removable under the provision of 9 Geo. IV. c. 32, s. 3, that serving a sentence for a felony not capital shall have "the like effects and consequences as a pardon under the Great Seal."

A free pardon in certain cases removes the disqualifications for holding certain offices created by conviction of felony under 33 & 34 Vict. c. 23, s. 2, and in respect of the clergy by the convictions referred to in 55 & 56 Vict. c. 32, s. 1 (see subs. 2).

General pardons in the nature of amnesties were formerly granted at coronations and on similar occasions, either by the Crown alone or by Act of Parliament, see 7 Geo. I. c. 29. Further information on this subject will be found in Hawkins, 2 P. C. c. 37.

Since 1817 (58 Geo. III. c. 29) no fees have been payable by or on behalf of a person pardoned in respect of the grant of the pardon or the preparation of the necessary documents.

The prerogative of mercy or the power to pardon is specially preserved in certain Acts relating to criminal law, e.g. Criminal Appeal Act, 1907, 7 Edw. vII. c. 47, s. 19.

A conditional pardon under 7 & 8 Geo. IV. c. 28, s. 13, when the condition has been performed, has the effect of a pardon, under the Great Seal.

By 11 Geo. IV. & 1 Will. iv. c. 39, s. 7, where the King extends mercy to a convict sentenced to death on condition of imprisonment, with or without hard labour, and the intention is signified to the Court by a Secretary of State, the Court is to allow the offender the benefit of a conditional pardon, and make an order for imprisonment accordingly.

By 16 & 17 Vict. c. 99, s. 5, pardon to a convict sentenced to death, on condition of his being kept to penal servitude for life or years, has the same effect as a pardon conditional on transportation beyond the seas, i.e. the accused must serve the term of penal servitude substituted for the capital sentence (see 5 Geo. IV. c. 84, s. 2).

I. THE RELATION OF PARENT AND CHILD.

The legal relationship between a father and his legitimate infant children (see LEGITIMACY) includes that of guardian and ward. He has been called their guardian by nature and nurture, or in more popular language, their natural guardian (Wellesley v. Duke of Beaufort, 1827, 2 Russ. 21; In re Agar-Ellis, 1883, 24 Ch. D. 317, 335; Co. Litt. 886, Hargrave's note (12)). After the father's death the mother is the natural guardian of her infant children, though at law she had no right to their custody against a testamentary guardian appointed by the father (Eyre v. Countess of Shaftesbury, 1722, 2 P. Wms. 103, 115; 24 E. R. 659; Villareal v. Mellish, 1737, 2 Swans. 533, 536; Talbot v. Shrewsbury, 1840, 4 Myl. & Cr. 672, 683; 41 E. R. 259; 48 R. R. 203). By the Guardianship of Infants Act, 1886, 49 & 50 Vict. c. 27, s. 2, she is now, however, on the death of the father, the guardian of her infant children, either alone or jointly with any guardian appointed by the father. For Guardianship, see the article on INFANTS, VII.

The bond of parent and child is not simply that of guardian and ward. The law acknowledges it to be one of a higher nature (see per Esher, M.R., In re Agar-Ellis, supra, at p. 327), and a parent has rights and duties which do not appertain to an ordinary guardian. Thus a father, unlike a guardian, has the right to say in which religion the children of the marriage shall be educated. It is the duty of a parent under the Poor Law to support the children while they are too young to maintain themselves; but no such duty has been imposed on a guardian.

A bastard is in law nullius filius. There is, strictly speaking, no legal relationship between him and his parents, neither of whom has the same right of guardianship which a father has in the case of his lawful children (see post, Custody of Illegitimate Children).