CHAPTER THE THIRTY SECOND.

OF EXECUTION.

THERE now remains nothing to fpeak of, but execution; the completion of human punifhment. And this, in all cafes, as well capital as otherwife, muft 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 fteward, upon the execution of a peer ^a: though, in the court of the peers in parliament, it is done by writ from the king ^b. Afterwards it was eftablifhed ^c, that, in cafe 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 prifoners' names, with their feparate judgments in the margin, which is left with the fheriff. As, for a capital felony, it is written oppofite to the prifoner's name, “hanged by the “neck;” formerly, in the days of Latin and abbreviation ^d, “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 ^e. It may certainly afford matter of fpeculation, that in civil caufes there fhould be fuch a variety of writs of execution to recover a trifling debt, iffued in the king's

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^a2 Hawk. P. C. 409.
^b See appendix. §. 5.
^c Finch. L. 478.
^d Staundf. P. C. 182.
^e 5 Mod. 22.
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name, and under the feal of the court, without which the fheriff cannot legally ftir one ftep; and yet that the execution of a man, the moft important and terrible tafk of any, fhould 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 alfo left at large. In London indeed a more folemn and becoming exactnefs is ufed, 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 feveral prifoners, and receiving his royal pleafure, that the law muft take it's courfe, iffues his warrant to the fheriffs; directing them to do execution on the day and at the place affigned ^f. And, in the court of king's bench, if the prifoner be tried at the bar, or brought there by habeas corpus, a rule is made for his execution; either fpecifying the time and place ^g, or leaving it to the difcretion of the fheriff ^h. 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 fentence paffed ⁱ. It has been well obferved ^k, that it is of great importance, that the punifhment 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 punifhment. Delay of execution ferves only to feparate thefe ideas; and then the execution itfelf 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 himfelf, as has been formerly faid ^l. It is held alfo by fir Ed-

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^f See appendix, §. 4.
^g St. Trials. VI. 332. Foft. 43.
^h See appendix, §. 3.
i See pag. 202.
^k Beccar. ch. 19.
^l See pag. 179.
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ward Coke ^m and fir. Matthew Hale ⁿ, that even the king cannot change the punifhment 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, notwithftanding fome examples to the contrary, fir Edward Coke ftoutly maintains, that “judicandum eft legibus, non exemplis.” But others have thought ^o, and more juftly, that this prerogative, being founded in mercy and immemorially exercifed 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 popifh plot in the reign of king Charles the fecond, 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 lordfhips, how the faid judgment fhould be executed: for, he being profecuted by impeachment, they entertained a notion (which is faid to have been countenanced by lord Ruffel) that the king could not pardon any part of the fentence ^p. The lords refolved ^q, that the fcruples of the fheriffs were unneceffary, and declared, that the king's writ ought to be obeyed. Difappointed of raifing a flame in that affembly, they immediately fignified ^r to the houfe 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 ^s fullenly refolved, that the houfe was content that the fheriff 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 treafon upon indictment, the king, while he remitted the ignominious part of the

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^m 3 Inft. 52.
ⁿ 2 Hal. P. C. 412,
^o Foft. 270.
^p 2 Hume Hift. of G. B. 328.
^q Lords Journ. 21. Dec. 1680.
^r Com. Journ. 21 Dec. 1680.
^s Ibid. 23 Dec. 1680.
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fentence, obferved, “that his lordfhip would now find he was “poffeffed of that prerogative, which in the cafe of lord Stafford he had denied him ^t.” One can hardly determine (at this diftance from thofe turbulent times) which moft to difapprove of, the indecent and fanguinary zeal of the fubject, or the cool and cruel farcafm 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 fheriff muft hang him again ^u. For the former hanging was no execution of the fentence; and, if a falfe tendernefs were to be indulged in fuch cafes, a multitude of collufions might enfue. Nay, even while abjurations were in force ^w, fuch a criminal, fo reviving, was not allowed to take fanctuary and abjure the realm; but his fleeing to fanctuary was held an efcape in the officer ^x.

AND, having thus arrived at the laft ftage of criminal proceedings, or execution, the end and completion of human punifhment, which was the fixth and laft head to be confidered under the divifion of public wrongs, the fourth and laft object of the laws of England; it may now feem high time to put a period to thefe commentaries, which, the author is very fenfible, have already fwelled to too great a length. But he cannot difmifs the ftudent, for whofe ufe alone thefe rudiments were originally compiled, without endeavouring to recal to his memory fome principal outlines of the legal conftitution of this country; by a fhort hiftorical review of the moft confiderable revolutions, that have happened in the laws of England, from the earlieft to the prefent times. And this tafk he will attempt to difcharge, however imperfectly, in the next or concluding chapter.

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^t 2 Hume. 360.
^u 2 Hal. P. C. 412. 2 Hawk. P. C. 463.
^w See pag. 326.
^x Fitzh. Abr. t. coront. 335. Finch. L. 467.
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