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CHAPTER THE THIRTY-SECOND.

OF EXECUTION.

HERE now remains nothing to fpeak of, but execu

THE

tion: the completion of human punishment. And this, in all cases, as well capital as otherwise, must be performed by the legal officer, the fheriff or his deputy; whofe warrant for fo doing was antiently by precept under the hand and feal of the judge, as it is ftill practifed 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 case of life, the judge may command execution to be done without any writ. And now the ufage is, for the judge to fign the calendar, or lift of all the prisoners' names, with their separate judgments in the margin, which is left with the 'fheriff, As, for a capital felony, it is written opposite to the prisoner's name "let him be 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 fheriff has, for fo material an act as taking away the life of another. It may certainly afford matter of fpeculation, that in civil causes there should be such a variety of writs of execution to recover a trifling debt, iffued in the king's name, and under the feal of the court, without which the fheriff [404] cannot legally ftir one ftep; and yet that the execution of a

a 2 Hal P. C. 409.

See Append. §a 50

e Finch. L. 478.

d'Staundf. P. C. 182,

• 5 Mod. 22.

man,

man, the most important and terrible task of any, fhould depend upon a marginal note (1).

THE fheriff, upon receipt of his warrant, is to do execution within a convenient time; which in the country is alfo 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 perfon the cafe of the several prifoners, and receiving his royal pleasure, that the law must take it's course, iffues his warrant to the fheriffs; 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 specifying the time and place, or leaving it to the difcretion of the fheriff. And, throughout the kingdom, by ftatute 25 Geo. II. c. 37. it is enacted that, in cafe of murder, the judge fhall in his sentence direct execution to be performed on the next day but one after fentence paffed. But, otherwise, the time and place of execuh See Append. §. 3. i See pag. 202.

f See Append. §. 4,

g St. Trials. VI. 332. Foft. 43.

(1) Though it be true that a marginal note of a calendar, figned by the judge, is the only warrant that the fheriff has for the execution of a convict, yet it is made with more caution and folemnity than is reprefented by the learned commentator. At the end of the affizes the clerk of affize makes out in writing four lifts of all the prifoners, with feparate columns, containing their crimes, verdicts, and fentences, leaving a blank column, which the judge fills up oppofite the names of the capital convicts by writing, to be executed, refpited, or reprieved. These four calendars, being firft carefully compared together by the judge and the clerk of affize, are figned by them, and one is given to the sheriff, one to the gaoler, and the judge and the clerk of affize each keep another. If the sheriff receives afterwards no fpecial order from the judge, be executes the judgment of the law in the ufual manner, agreeably to the directions of his calendar.

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tion are by law no part of the judgment. It has been well obferved', that it is of great importance, that the punishment fhould follow the crime as early as poffible; that the profpect of gratification or advantage, which tempts a man to commit the crime, fhould inftantly awake the attendant idea of punishment. Delay of execution ferves only to feparate thefe 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 fubftituting one death for another, without being guilty of felony himself, as has been formerly faidm. It is held alfo [405] by fir Edward 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 rest. And, notwithstanding fome examples to the contrary, fir Edward Coke ftoutly maintains, that "judicandum eft legi"bus, 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 inftance, all thefe exchanges have been for more merciful kinds of death; and how far this may alfo 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 houfe of lords, for a command or order from their lordships, how the faid judgment fhould be executed: for, he being profecuted by impeachment, they entertained a notion

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3 Inft. 52.

o 2 Hal. P. C. 412.

p Foft. 270. F. N. B. 244. h. 19 Rym. Foed. 284.

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405 (which is faid to have been countenanced by lord Ruffel) that the king could not pardon any part of the sentence. The lords refolved', that the fcruples of the fheriffs were unneceffary, and declared, that the king's writ ought to be obeyed. Difappointed of raising a flame in that affembly, they immediately signified to the house of commons by one of the members, that they were not satisfied 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 further related, that when afterwards the fame lord Ruffel was condemned for high treafon upon indictment, the king while he remitted the ignominious part of the fentence, obferved, "that his lordship would now find [ 406 ] " he was poffeffed of that prerogative, which in the cafe of "lord Stafford he had denied him "." One can hardly determine (at this distance from those turbulent times) which moft to disapprove of, the indecent and fanguinary 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 muft 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 collufions might enfue. Nay, even while abjurations were in force*, fuch a criminal, so 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 last stage of criminal proceedings, or execution, the end and completion of human punishment, which was the fixth and last head to be confider

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Book IV. ed under the divifion 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 difmifs the ftudent, for whofe ufe alone thefe rudiments were originally compiled, without endeavouring to recall to his memory fame principal outlines of the legal conftitution of this country; by a fhort historical review of the most 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 imperfe&tly, in the next or concluding chapter.

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