CHAPTER THE THIRTY SECON D. OF EXECUTION. T HERE now remains nothing to speak of, but execution the completion of human punishment. And this, in all cafes, as well capital as otherwise, must be performed by the legal officer, the sheriff or his deputy; whose warrant for fo doing was antiently by precept under the hand and seal of the judge, as it is still practised in the court of the lord high steward, upon the execution of a peer: though, in the court of the peers in parliament, it is done by writ from the king. Afterwards it was established, that, in cafe of life, the judge may command execution to be done without any writ. And now the usage is, for the judge to fign the calendar, or list of all the prisoners' names, with their feparate judgments in the margin, which is left with the sheriff. As, for a capital felony, it is written oppofite to the prisoner's name, "hanged by the "neck;" formerly, in the days of Latin and abbreviation, "fuf. per coll." for "fufpendatur per collum." And this is the only warrant that the sheriff has, for fo material an act as taking away the life of another. It may certainly afford matter of fpeculation, that in civil caufes there should be such a variety of writs of execution to recover a trifling debt, issued in the king's a 2 Hal. P. C. 409. See appendix. §. 5. C Staundf. P. C. 182. name, name, and under the feal of the court, without which the sheriff cannot legally ftir one step; and yet that the execution of a man, the most important and terrible task of any, should depend upon a marginal note. THE fheriff, upon receipt of his warrant, is to do execution within a convenient time; which in the country is aifo left at large. In London indeed a more folemn and becoming exactness is used, both as to the warrant of execution, and the time of executing thereof: for the recorder, after reporting to the king in person the case of the several prisoners, and receiving his royal pleasure, that the law must take it's course, iffsues his warrant to the sheriffs; directing them to do execution on the day and at the place affigned. And, in the court of king's bench, if the prisoner be tried at the bar, or brought there by habeas corpus, a rule is made for his execution; either fpecifying the time and place, or leaving it to the difcretion of the sheriffh. And, throughout the kingdom, by ftatute 25 Geo. II. c. 37. it is enacted that, in cafe of murder, the judge fhall in his fentence direct execution to be performed on the next day but one after sentence passed. It has been well obferved, that it is of great importance, that the punishment should follow the crime as early as poffible; that the profpect of gratification or advantage, which tempts a man to commit the crime, should instantly awake the attendant idea of punishment. Delay of execution ferves only to separate these ideas; and then the execution itself affects the minds of the fpectators rather as a terrible fight, than as the neceffary confequence of tranfgreffion. THE fheriff cannot alter the manner of the execution by subftituting one death for another, without being guilty of felony himself, as has been formerly faid'. It is held alfo by fir Ed f See appendix, §. 4. St. Trials. VI. 332. Foft. 43 i See pag. 202. k Beccar. ch. 19. 1 See pag. 179. ward m Book IV. ward Coke and fir Matthew Hale", that even the king cannot change the punishment of the law, by altering the hanging or burning into beheading; though, when beheading is part of the fentence, the king may remit the reft. And, notwithstanding fome examples to the contrary, fir Edward Coke ftoutly maintains, that "judicandum eft legibus, non exemplis." But others have thought, and more justly, that this prerogative, being founded in mercy and immemorially exercised by the crown, is part of the common law. For hitherto, in every instance, all these exchanges have been for more merciful kinds of death; and how far this may also fall within the king's power of granting conditional pardons, (viz. by remitting a fevere kind of death, on condition that the criminal fubmits to a milder) is a matter that may bear confideration. It is obfervable, that when lord Stafford was executed for the popish plot in the reign of king Charles the second, the then fheriffs of London, having received the king's writ for beheading him, petitioned the house of lords, for a command or order from their lordships, how the said judgment should be executed: for, he being profecuted by impeachment, they entertained a notion (which is said to have been countenanced by lord Ruffel) that the king could not pardon any part of the sentence. The lords refolved, that the scruples of the sheriffs were unneceffary, and declared, that the king's writ ought to be obeyed. Difappointed of raifing a flame in that af sembly, they immediately fignified' to the house of commons by one of the members, that they were not fatisfied as to the power of the faid writ. That houfe took two days to confider of it; and then fullenly refolved, that the house was content that the sheriff do execute lord Stafford by fevering his head from his body. It is farther related, that when afterwards the fame lord Ruffel was condemned for high treason upon indictment, the king, while he remitted the ignominious part of the 66 fentence, obferved, "that his lordship would now find he was poffeffed of that prerogative, which in the cafe of lord Staf"ford he had denied him." One can hardly determine (at this distance from those turbulent times) which most to disapprove of, the indecent and fanguinary zeal of the subject, or the cool and cruel sarcasm of the fovereign. To conclude it is clear, that if, upon judgment to be hanged by the neck till he is dead, the criminal be not thoroughly killed, but revives, the sheriff must hang him again". For the former hanging was no execution of the fentence; and, if a false tenderness were to be indulged in such cases, a multitude of collufions might enfue. Nay, even while abjurations were in force", fuch a criminal, fo reviving, was not allowed to take fanctuary and abjure the realm; but his fleeing to fanctuary was held an escape in the officer *. AND, having thus arrived at the laft ftage of criminal proceedings, or execution, the end and completion of human punishment, which was the fixth and last head to be confidered under the division of public wrongs, the fourth and last object of the laws of England; it may now seem high time to put a period to these commentaries, which, the author is very fenfible, have already fwelled to too great a length. But he cannot dismiss the student, for whose use alone these rudiments were originally compiled, without endeavouring to recal to his memory fome principal outlines of the legal constitution of this country; by a short historical review of the moft confiderable revolutions, that have happened in the laws of England, from the earliest to the prefent times. And this task he will attempt to discharge, however imperfectly, in the next or concluding chapter. t 2 Hume. 360. 2 Hal. P. C. 412. 2 Hawk. P. C. 463. ▾ See pag. 326. * Fitzh, Abr.t.corone. 335. Finch. L.467. OF THE RISE, PROGRESS, AND GRADUAL B EFORE we enter on the subject of this chapter, in which I propose, by way of fupplement to the whole, to attempt an historical review of the most remarkable changes and alterations, that have happened in the laws of England, I must first of all remind the ftudent, that the rife and progress of many principal points and doctrines have been already pointed out in the course of these commentaries, under their respective divifions: these having therefore been particularly difcuffed already, it cannot be expected that I should re-examine them with any degree of minutenefs; which would be a moft tedious undertaking. What I therefore at present propose, is only to mark out some outlines of an English juridical history, by taking a chronological view of the state of our laws, and their fucceffive mutations at different periods of time. THE feveral periods, under which I shall confider the state of our legal polity, are the following fix: 1. From the earliest times to the Norman conqueft: 2. From the Norman conqueft to the reign of king Edward the first: 3. From thence to the refor |