It is stated by Mr. Prendergast, in the work to which we have referred (p. 244), that a sentence of death pronounced by a court-martial does not operate as an absolute dismissal from the service; for if the offender should be pardoned, he 13 restored to his former position.
But though a pardon operates as a restoration to the service, the greater question still remains to be judicially decided, whether a restoration to the service operates as a pardon. This question is inseparably connected with the fate of the gallant but unfor tunate sir Walter Raleigh. He lied been condemned to death for alleged participation in a treasonable plot to raise Arabella Stuart to the throne; and, after undergoing 13 years' imprisonment, he received from James I., by a commission under the great seal, the command of a fleet and army fitted out against the Spanish possessions in South America, with power of life and death over the king's subjects serving in the expedition. The enterprise failed; and on sir Walter's return to England, James caused his head to be struck off, according to the sentence originally pronounced. On showing cause
against his execution, sir Walter pleaded that his commission was tantamount to a par don, and quoted a case of a man who had been condemned for felony, having been par doned on account of his subsequent service in the wars of Gascony. Lord chief-justice Montague, however, held that though an implied pardon of the kind cited might hold good in felony, that treason could only be pardoned by express words. There is the high legal authority of the late lord chancellor Campbell* for saying that the chief-justice declared and expounded the law soundly; and that in strictness sir Walter's attainder, under the former judgment, could only be done away with by letters-patent under the great seal, expressly reciting the treason, and granting a free pardon. See, on the sub ject of these two articles, ARTICLES oto WAn, and MuTucv ACT.
As to the mode of C. P. in the navy, the culprit, where he is an officer, is shot; where he is a common seaman, lie is usually hanged at the yard-arm.