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the several prisoners, and receiving his royal pleasure, that the law must take its course, issues his warrant to the sheriffs; directing them to do execution on the day and at the place assigned. 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 specifying the time and place," or leaving it to the discretion of the sheriff. And, throughout the kingdom, by statute 25 Geo. II. c. 37. it is enacted that, in case of murder, the judge shall in his sentence direct execution to be performed on the next day but one after sentence passed. But, otherwise, the time and place of execution are by law no part of the judgment. It has been well observed, that it is of great importance, that the punishment should follow the crime as early as possible; that the prospect of gratification or advantage, which tempts a man to commit the crime, should instantly awake the attendant idea of punishment. Delay of execution serves only to separate these ideas: and then the execution itself affects the minds of the spectators rather as a terrible sight, than as the necessary consequence of transgression.
The sheriff cannot alter the manner of the execution by substituting one death for another, without being guilty of felony himself, as has been formerly said." It is held also by sir Edward Coke" and sir 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 sentence, the king may remit the rest. And, notwithstanding some examples to the contrary, sir Edward Coke stoutly maintains, that "judicandum est 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
f See Append. § 4.
g St. Trials, VI. 332. Fost. 43.
h See Append. § 3.
i See pag. 185.
k So held bythe twelve judges, Mich. 10 Geo. III.
1 Beccar. ch. 19.
m See pag. 164.
o 2 Hal. P. C. 412.
P Fost. 270. F. N. B. 244. h.
19 Rym. Foed. 284.
kinds of death; and how far this may also fall within the king's power of granting conditional pardons, (viz. by remitting a severe kind of death, on condition that the criminal submits to a milder,) is a matter that may bear consideration. It is observable, that when lord Stafford was executed for the popish plot in the reign of king Charles the second, the then sheriffs 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 prosecuted by impeachment, they entertained a notion, which is said to have been countenanced by lord Russel, that the king could not pardon any part of the sentence. The lords resolved, that the scruples of the sheriffs were unnecessary, and declared, that the king's writ ought to be obeyed. Disappointed of raising a flame in that assembly, they immediately signified to the house of commons by one of the members, that they were not satisfied as to the power of the said writ. That house took two days to consider of it; and then sullenly resolved, that the house was content that the sheriff do execute lord Stafford by severing his head from his body. It is further related, that when afterwards the same lord Russel was condemned for high treason upon indictment, the king, while he remitted the ignominious part of the sentence, observed, “that his lordship would now find he was possessed of that prerogative, which in the case of lord Stafford he had denied him."." One can hardly determine, at this distance from those turbulent times, which most to disapprove of, the indecent and sanguinary zeal of the subject, or the cool and cruel sarcasm of the sovereign.
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 sentence; and, if a false tenderness were to be indulged in such cases, a multitude of collusions might ensue. Nay,
4 2 Hum. Hist. of G. B. 328. r Lords' Journ. 21 Dec. 1680. s Com. Journ. 21 Dec. 1680. tCom. Journ. 23 Dec, 1680. VOL. IV.-PART II.
u 2 Hume, 360.
w 2 Hal. P. C. 412. 2 Hawk. P. C. 463.
even while abjurations were in force, such a criminal, so reviving, was not allowed to take sanctuary and abjure the realm; but his fleeing to sanctuary was held an escape in the officer."
And, having thus arrived at the last stage of criminal proceedings, or execution, the end and completion of human punishment, which was the sixth and last head to be considered 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 sensible, have already swelled to too great a length. But he cannot dismiss the student, for whose use alone these rudiments were originally compiled, without endeavouring to recall to his memory some principal outlines of the legal constitution of this country; by a short historical review of the most considerable revolutions, that have happened in the laws of England, from the earliest to the present times. And this task he will attempt to discharge, however imperfectly, in the next or concluding chapter.
OF THE RISE, PROGRESS, AND GRADUAL IMPROVEMENTS, OF THE LAWS OF ENGLAND.
BEFORE We enter on the subject of this chapter, in which I propose, by way of supplement 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 student, that the rise and progress of many principal points and doctrines have been already pointed out in the course of these commentaries, under their respective divisions; these having therefore been particularly discussed already, it cannot be expected that I should re-examine them with any degree of minuteness; which would be a most tedious under
* See pag. 302. y Fitzh. Abr. t. corone. 33. Finch. L. 467.
taking. 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 successive mutations at different periods of time.
The several periods, under which I shall consider the state of our legal polity, are the following six: 1. From the earliest times to the Norman conquest: 2. From the Norman conquest to the reign of king Edward the first; 3. From thence to the reformation : 4. From the reformation to the restoration of king Charles the second: 5. From thence to the revolution in 1688: 6. From the revolution to the present time.
I. And, first, with regard to the ancient Britons, the aborigines of our island, we have so little handed down to us concerning them with any tolerable certainty, that our inquiries here must needs be very fruitless and defective, However, from Cæsar's account of the tenets and discipline of the ancient Druids in Gaul, in whom centered all the learning of these western parts, and who were, as he tells us, sent over to Britain, (that is, to the island of Mona or Anglesey,) to be instructed; we may collect a few points, which bear a great affinity and resemblance to some of the modern doctrines of our English law. Particularly, the very notion itself of an oral unwritten law, delivered down from age to age, by custom and tradition merely, seems derived from the practice of the Druids, who never committed any of their instructions to writing: possibly for want of letters; since it is remarkable that in all the antiquities, unquestionably British, which the industry of the moderns has discovered, there is not in any of them the least trace of any character or letter to be found. The partible quality also of lands, by the custom of gavel-kind, which still obtains in many parts of England, and did universally over Wales till the reign of Henry VIII., is undoubtedly of British original. So likewise is the ancient division of the goods of an intestate between his widow and children, or next of kin; which has since been revived by the statute of distributions. And we may also remember an instance of a slighter nature mentioned in the present volume, where the same custom has continued from Cæsar's time to the present; that of burn
ing a woman guilty of the crime of petit treason by killing her husband. (38)
The great variety of nations, that successively broke in upon and destroyed both the British inhabitants and constitution, the Romans, the Picts, and, after them, the various clans of Saxons and Danes, must necessarily have caused great confusion and uncertainty in the laws and antiquities of the kingdom; as they were very soon incorporated and blended together, and therefore, we may suppose, mutually communicated to each other their respective usages, in regard to the rights of property and the punishment of crimes. So that it is morally impossible to trace out with any degree of accuracy, when the several mutations of the common law were made, or what was the respective original of those several customs we at present use, by any chemical resolution of them to their first and component principles. We can seldom pronounce, that this custom was derived from the Britons; that was left behind by the Romans; this was a necessary precaution against the Picts; that was introduced by the Saxons; discontinued by the Danes, but afterwards restored by the Normans.
Wherever this can be done, it is matter of great curiosity, and some use: but this can very rarely be the case; not only from the reason above mentioned, but also from many others. First, from the nature of traditional laws in general; which, being accommodated to the exigencies of the times, suffer by degrees insensible variations in practice: b so that, though upon comparison we plainly discern the alteration of the law from what it was five hundred years ago, yet it is impossible to define the precise period in which that alteration accrued, any more than we can discern the changes of the bed of a river, which varies its shores by continual decreases and alluvions. Secondly, this becomes impracticable from the antiquity of the kingdom and its government: which alone, though it had been disturbed by no foreign invasions, would make it impossible to search out the original of its laws; unless b Ibid. 57.
a Hal. Hist. C. L. 62.
(38) This is now done away with. See ante, p 376, n. 35.