BOOK 4, CHAPTER 32 Of Execution

formado por un único campo de gules en que aparecen tres leones pasantes y

contorneados de oro, lampasados y armados o uñados de azur.

THERE now remains nothing to speak of, but execution; the completion of human punishment. And this, in all cases, as well capital as otherwise, must be performed by the legal officer, the sheriff or his deputy; whose warrant for so doing was anciently by precept under the hand and seal of the judge, as it is still practiced in the court of the lord high steward, upon the execution of a peer:1 though, in the court of the peers in parliament, it is done by writ from the king.2 Afterwards it was established,3 that, in case of life, the judge may command execution to be done without any writ. And now the usage is, for the judge to sign the calendar, or list of all the prisoners’ names, with their separate judgments in the margin, which is left with the sheriff. As, for a capital felony, it is written opposite to the prisoner’s name, “hanged by the neck;” formerly, in the days of Latin and abbreviation,4 “sus. per coll.” for “suspendatur per collum.” And this is the only warrant that the sheriff has, for so material an act as taking away the life of another.5 It may certainly afford matter of speculation, that in civil causes there should be such a variety of writs of execution to recover a trifling debt, issued in the king’s name, and under the seal of the court, without which the sheriff cannot legally stir 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 sheriff, upon receipt of his warrant, is to do execution within a convenient time; which in the country is also left at large. In London indeed a more solemn 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 its course, issues his warrant to the sheriffs; directing them to do execution on the day and at the place assigned.6 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,7 or leaving it to the discretion of the sheriff.8 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.9 It has been well observed,10 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 fight, 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.11 It is held also by Sir Edward Coke12 and Sir Matthew Hale,13 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.” [“We must judge by the laws, not by examples.”] But others have thought,14 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 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.15 The lords resolved,16 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 signified17 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 then18 sullenly resolved, that the house was content that the sheriff do execute lord Stafford by severing his head from his body. It is farther 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.”19 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.20 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, even while abjurations were in force,21 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.22

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 endeavoring 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.

NOTES

     1.    2 Hawk. P. C. 409.

     2.    See appendix. § 5.

     3.    Finch. L. 478.

     4.    Staundf. P. C. 182.

     5.    5 Mod. 22.

     6.    See appendix, § 4.

     7.    St. Trials. VI. 332. Fost. 43.

     8.    See appendix, § 3.

     9.    See pag. 202.

   10.    Beccar. ch. 19.

   11.    See pag. 179.

   12.    3 Inst. 52.

   13.    2 Hal. P. C. 412,

   14.    Fost. 270.

   15.    2 Hume Hist. of G. B. 328.

   16.    Lords Journ. 21. Dec. 1680.

   17.    Com. Journ. 21 Dec. 1680.

   18.    Ibid. 23 Dec. 1680.

   19.    2 Hume. 360.

   20.    2 Hal. P. C. 412. 2 Hawk. P. C. 463.

   21.    See pag. 326.

   22.    Fitzh. Abr. t. coront. 335. Finch. L. 467.

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