CHAPTER XXVI.

OF EXECUTION.

[THERE now remains nothing to speak of but executionthe completion of human punishment (a). 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 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(b): 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 (c). And now the usage is, for the judge,] in the case of all trials at the assizes, [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 his warrant or authority; and if the sheriff receives afterwards no special order to the contrary, he executes the judgment of the law accordingly (d).

(a) Vide sup. pp. 424, 552, n.(a).
(b) 2 Hale, P. C. 409.
(c) Finch, L. 478.

(d) See R. v. Bethel, 5 Mod. 22; Christian's Blackstone, vol. iv. p. 401, in notis, where it is said that" at the "end of the assizes the clerk of the "assize makes out in writing four "lists of all the prisoners, with "separate columns, containing their "crimes, verdicts and sentences,

[The sheriff, upon receipt of his warrant, is to do execution within a convenient time; which is left at large (e). But in the court of queen's bench, if the prisoner be tried at the bar, or brought there by habeas corpus, a rule is made for the execution; either specifying the time and place (ƒ), or leaving it to the discretion of the sheriff (g).] And though in general the law has established no rule as to the time of execution, [it has been well observed, that it is of great importance that the punishment should follow the crime as early as possible; and that the prospect of gratification or advantage which tempts a man to commit the crime, should instantly awake the attendant idea of punishment (h). 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 (i). It is held

"the directions of his calendar. In

44

'every county this important sub"ject is settled with great delibera"tion by the judge and the clerk of "assize before the judge leaves the "assize town; but probably in dif "ferent counties, with some slight "variations."

(e) The time and place of the execution are by law no part of the judgment (see 4 Bl. Com. 404, where this is said to have been held by the twelve judges, Mich. 10 Geo. 3.) Formerly, indeed, the law required that a person convicted of murder should be executed on the day next but one after the sentence, unless that day fell on a Sunday, and in that case on the Monday following. (25 Geo. 2, c. 37; 9 Geo. 4, c. 31, s. 4.) But this was repealed by 6 & 7 Will.

4, c. 30.

(ƒ) St. Trials, vi. 332; Fost. 43, See Atkinson v. Reg. (in error), 3 Bro. P. C. 517.

(g) In London the course as to execution on convicts formerly was, that the recorder reported to the king, in person, their several cases; and if he received the royal pleasure that the law must take its course, issued his warrant to the sheriffs, directing them to do execution at a specified time and place (4 Bl. Com. 404). But now by 7 Will. 4 & 1 Vict. c. 77, the practice of the Central Criminal Court, as to the award of execution in capital cases, is assimilated to that of other courts. (h) Beccar. c. 19. (i) Vide sup. p. 133.

[also by Sir Edward Coke (j) and Sir Matthew Hale (k), 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 (1). 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 (m). The lords resolved, that the scruples of the sheriffs were unnecessary, and declared that the king's writ ought to be obeyed (n). 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 (o). That house took two days to consider of it: and then sullenly resolved, that the house was content that the

(j) 3 Inst. 52.

(k) 2 Hale, P. C. 412.

(1) Fost. 270; F. N. B. 144, h; 19 Rym. Fœd. 284.

(m) 2 Hume, 328.

(n) Lords' Journ. 21 Dec. 1680. (0) Com. Journ. 21 Dec. 1680.

[sheriff do execute Lord Stafford, by severing his head from his body (p). 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 pre"rogative which, in the case of Lord Stafford, he had "denied him (g)." 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 (r). 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, such a criminal, so reviving, was not allowed to take sanctuary and abjure the realm (s); but his fleeing to sanctuary was held an escape in the officer (t).

And, having thus arrived at the last stage of criminal proceedings, or execution,] which terminates our inquiry into the law of crimes, the subject of our sixth Book, we have also reached the end, properly speaking, of these Commentaries; yet it may be useful to endeavour to recal to the memory of the student 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 shall be now attemped by way of conclusion.

(p) Com. Journ. 23 Dec. 1680. (q) 2 Hume, 360.

(r) 2 Hale, P. C. 412; Hawk. P. C. b. 2, c. 51, s. 7.

(s) Vide sup. p. 482, n. (c). (t) Fitzh. Abr. tit. "Corone," 335; Finch, L. 467. As to an escape, vide sup. p. 307.

CONCLUSION.

OF THE RISE, PROGRESS, AND GRADUAL IMPROVEMENT, OF THE LAWS OF ENGLAND.

[BEFORE we enter on our present subject, in which it is proposed, by way of supplement to the whole work, to attempt an historical review of the most remarkable changes and alterations that have happened in the laws of England,--it must be observed, 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 they should be re-examined with any degree of minuteness; which would be a most tedious undertaking. What, therefore, is at present proposed, is only to mark out some outlines of our 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 we shall consider the state of our legal polity,] are the following seven: [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 publication of Blackstone's Commentaries on the Laws of England: 7. From the era last mentioned to the present time. .