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could have inherited at all, and the land will escheat pro defectu hæredis. Yet if an attainted person receives the king's pardon, and afterwards has a son, that son may be heir to his father, because the father being made a new man, might transmit new inheritable blood.
EXECUTION. We are now called on to witness a most affecting scene ; the humiliating and terrible completion of a capital offender's punishment. Execution, in all cases, as well capital as otherwise, must be performed by the legal officer, the sheriff, or his deputy: whose warrant was anciently by precept, under the judge's hand and seal, as it is still practised in the court of the lord high steward on the execution of a peer; though in the court of the peers in parliament, it is done by writ from the king. It was afterwards established, that in case of life, the judge may command execution to be done without any writ. And the usage now is for the judge to sign the calendar or list of all the prisoner's names, with their separate judgments in the margin, which is left with the sheriff. As for a capitai 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, the writing was sus per coll," for "suspendatur per collum." And these words are the sheriff's only warrant for so important an act as to deprive a fellow creature of life. It may 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 should depend on a marginal note. In a note on this place, professor Christian says, though it be true that a marginal note of a calendar signed by the judge, is the only warrant that the sheriff has for the execution of a convict; yet it is made with more caution and solemnity than is represented by the learned commentator. At the end of the assizes, the clerk of the assize makes out four lists of all the prisoners, with separate columns, containing their crimes, verdicts, and sentences, leaving a blank column, in which, if the judge has reason to vary the course of the law, he writes op posite the names of the capital convicts, to be reprieved, respited, transported, &c. These four calendars, being first carefully compared together by the judge and the clerk of assize, are signed by them, and one is given to the sheriff, one to the gaoler, and the judge and clerk of assize each keep another. If the sheriff does not afterwards receive a special order from the judge, he executes the judgment of the law in the usual manner, agreeably to the directions of his calendar. In every county this important subject is settled with great deliberation by the judge and the clerk of assize, before the judge leaves the assize town; but probably in different counties with some slight variation: as in Lancashire, where no calendar is left with the gaoler, but one is sent to the secretary of state. If the judge thinks it proper to reprieve a capital convict, he sends a memorial
or certificate to the king's most excellent majesty, directed to the secretary of state's office, stating that from favourable circumstances appearing at the trial, he recommends him to his majesty's mercy, and to a pardon on condition of transportation or some other punishment: which recommendation is always attended to.
On receipt of this warrant, the sheriff is to do execution on the criminal within a convenient time; which in the country is also left at large. A more becoming and solemn exactness is, however, used in London, both as to the warrant itself and its execution; 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 of which the following is a copy :
London and Middlesex.
Warrant of execution on judgment of death, at the general gaol-delivery, in London and Middlesex.
To the sheriff of London, and to the sheriff of the county of Middlesex, and to the keeper of his majesty's gaol of Newgate.
WHEREAS, at the session of gaol-delivery of Newgate, for the city of London and county of Middlesex, holden at Justice-Hall, in the Old Bailey, on the nineteenth day of October last, Patrick Mahony, Roger Jones, Charles King, and Mary Smith, received sentence of death, for the respective offences in their several indictments mentioned: Now, IT IS HEREBY ORDERED, that execution of the said sentence be made and done upon them, the said Patrick Mahony and Roger Jones, on Wednesday, the ninth day of this instant month of November, at the usual place of execution. AND it is his majesty's command, that execution of the said sentence upon them, the said Charles King and Mary Smith, be respited, until his majesty's pleasure touching them be farther known.
GIVEN under my hand and seal this fourth day of November, one thousand eight hundred and thirty three,
JAMES EYRE, Recorder, L. S.
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 sheriff's discretion. And throughout the kingdom, in cases of murder, the judge in his sentence shall direct execution to be done on the next day but one after sentence passed. It has been held, however, by a majority of the judges, that the statute* enacting this course is merely directory as to the time of execution; and that notwithstanding the statute, the judge may order a prisoner convicted of murder to be executed immediately, or at any other time within forty-eight hours, as in other cases of capital convictions. The time and place of execution are not part of the judgment by any law, as has been held by the twelve judges. It has been well observed, that it is
great importance that the punishment should follow the crime as early as possible, that the prospect of gratification or advantage which tempted
25 Geo. II., c. 37.
the commission of the crime, should instantly awake the attendant idea of punishment. Delay of execution only serves 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 mode of death for another, without being himself guilty of felony. But the king can change one mode of death for another; because this prerogative being founded in mercy, and immemoriably exercised by the crown, is part of the common law. For in every instance, these exchanges have been for more merciful kinds of death. It is observable that when lord Stafford was executed for the popish plot in the reign of Charles II., the three 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 having been prosecuted by impeachment, they entertained a notion, (which is said to have been countenanced by lord Russell,) that the king could not pardon any part of the sentence. The lords resolved that the sheriff's scruples 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's do execute lord Stafford, by severing his head from his body. It is further related, that when the same lord Russell was himself afterwards condemned for high treason upon indictment, the king, while he remitted the ignoaninious part of the sentence, sarcastically observed, that "his lordship would now find that he was possessed of that prerogative, which in the case of lord Stafford he had denied him."
A common opinion prevails, that if after hanging the usual time, a person should be cut down, and revive by any means, the law has no longer any demand on him, but this is a great mistake: for as he was sentenced to be hanged by the neck till he was dead, the former was not an execution of the sentence: and, therefore, the sheriff at his peril must hang him again till the law's extent be fulfilled; for if a false tenderness were indulged in such cases, a multitude of collusions might ensue.
We have now attended the unhappy criminal, from his first apprehension by the constable, through all the stages of his trial to his final execution. How happily might not the felon have lived in society, had he not broken God's holy laws and commandments, and wilfully violated those wise and equitable human laws which are grounded on the ten commandments, and which merely required his obedience, in return for the constant protection which they afforded him against the oppressions of others. We have seen how surely and closely punishment treads on the heels of transgres
sion; we have seen that the English code of criminal justice is not a system of relentless cruelty, but of wisdom and compassion; we have ob served with what care and jealousy the laws watch over the life, the liberty, and the property even of the meanest subject; we have seen that the guilty often escape the vengeance of the law through the most trifling circumstance; and that the wise institution of a grand as well as a petit jury, almost to a certainty secures an innocent man from punishment; we have admired that clemency of the law which even after judgment creates a peradventure that the criminal may yet escape with his life; we have beheld how the royal prerogative of pardon is calculated to soften the rigour of the law, when its strict execution would be too severe and we contemplate with satisfaction and gratitude, that it cannot fail to be exercised upon all suitable occasions, whilst God himself keeps the hearts of kings in his own hand.*
THE RISE, PROGRESS, AND GRADUAL IMPROVEMENT OF THE LAWS OF ENGLAND.
WHAT is at present proposed is only to mark out some outlines of English juridical history, by taking a chronological view of the state of the laws, and their successive mutations at different periods of time; and the several periods under which they will be considered are the following
I. From the earliest times to the Norman conquest.
II. From the Norman conquest to the reign of Edward I.
III. From thence to the Reformation.
IV. From the Reformation to the Restoration of king Charles II.
V. From thence to the Revolution, 1688.
VI. From thence to the present times.
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 must necessarily be both fruitless and defective. However, from the account which Cæsar has handed down in his commentaries of the tenets and ancient 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
* Blackstone's Commentaries, with professor Christian's Notes-Custance on the Conatitution Statutes at large.
the English law. Particularly, the very notion itself of an oral unwritten law, delivered down from age to age by custom and tradition merely, seems to have been derived from Druidical practice, who never committed any of their instructions to writing, unquestionably from the want of letters, since it is remarkable that in all the antiquities (unquestionably British) which modern industry has discovered, there is not the least trace of any character or letter in any of them to be found. The partible quality, also, of lands, by the custom of gravel-kind, which still obtains in many parts of England, and universally prevailed all 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 mention an instance of a slighter nature, mentioned under the head of treason, where the same custom has continued since Cæsar's time, although it has now been altered by statute, 30 Geo. III., that of burning a woman guilty of the crime of petty treason by killing her husband. The law now determines by the above statute that women guilty of petit treason shall no longer be sentenced to be burnt, but that in all such cases they shall be subject besides to the same judg ment with regard to dissection and the time of execution, as is customary in cases of murder.
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 materially 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 with certainty, that this custom was derived from the Britons; that that was left behind by the Romans; that this was a necessary precaution against the Picts; or that that was introduced by the Saxons, discontinued by the Danes, and afterwards restored by the Normans.
Wherever this can be done, it is matter of great curiosity, and perhaps of some use; but this can very rarely be the case, not only from the rea son above mentioned, but also from many others. First, from the nature of traditional laws in general, which being accommodated to the exigencies
* Hallam's Hist. c. L. 62