CHA P. XLII:

Concerning the taking away of the life of man, by the courfe of law, or in execution of justice.

HIS kind of occifion of a man according to the laws of the

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kingdom and in execution thereof ought not to be numbered in the rank of crimes, for it is the execution of justice, without which there were no living, and murders, burglaries, and all capital crimes would be as frequent and common, as petit trefpaffes and batteries.

The taking away of the life, therefore, of a malefactor according to law by fentence of the judge, and by the sheriff or other minister of justice pursuant to fuch fentence, is not only an act of neceffity, but of duty, not only excufable, but commendable, where the law requires it.

But because there are fome cautions and confiderations in this matter, I have added it to the close of this title of homicide.

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Regularly it is not lawful for any man to take away the life of another, tho a great malefactor, without evident neceffity, (whereof before,) or without due procefs of law, for the deliberate, uncompelled extrajudicial killing of a person attaint of treason, felony, or murder, or in a præmunire, tho upon the score of their being fuch, is murder. (a)

Therefore it is neceffary, 1. That he, that gives fentence of death against a malefactor, be authorized by lawful commiffion or charter, or by prescription to have cognizance of the caufe. 2. That he tha executes fuch sentence be authorized to make fuch execution, otherwise it will be murder or manslaughter, or at least a great misprision n the judge that sentenceth, or in the minifter that executeth.

I. As touching the authority of the judge, I fhall not at large difcourse the jurifdiction of the judges or courts in this place; it will be more proper hereafter; but shall mention only fome things, that may be feasonable for this place.

If he that gives judgment of death against a perfon, hath no commiffi on at all, if fentence of death be commanded to be executed by

fuch perfon, and it is executed accordingly, it is murder in him that commands it to be executed, for it was coram non judice.

If a commiffion of the peace iffue, this extends not to treason, neither can juftices of peace hear and determine all treafons by force of this commiffion, for it extends only to felonies, (tho fome treafons are by act of parliament limited to their cognizance, as hath been before obferved) if they take an indictment of treason, and try and give judgment upon the party, this is moft certainly erroneous, and poffibly avoidable by plea, but I do not think it makes the juftices guilty of murder in commanding the execution of such sentence, for they were not without fome colour of proceeding therein, because all treafon is felony, tho it be more, and the king may, if he pleases, proceed against a traitor for felony; and antiently a pardon

[498] of all felonies difcharged fome treafons. 1 E 3. Charter de Pardon 13. 22 Affiz. 49. Co. P. C. p. 15. but it is a great mifprifion in fuch juftices.

The juftices of the common pleas cannot hold plea upon an indictment or appeal in capital causes, it will be at least erroneous, if not voidable by plea; but if they hold plea in appeal of death by writ, and give judgment therein for the party to be hanged, which is executed accordingly, I think it is an error, and a great mifprifion in them, but not felony, because they had colour to hold plea thereof by an original writ out of the chancery under the great feal.

Upon the fame reason I take it, that if there be a writ fent to the fheriff, efchetor, or A. B. and C. to hear and determine felonies, whereas it ought to be a commiffion, 42 Affiz. 12, 13. and they proceed thereupon to a judgment and execution in cafe of felony, it is a great mifprifion, but I think it makes not the judge nor executioner guilty of murder; the fame law I take to be in Lacie's cafe, quod vide Co. P. C. p. 48. 5 Co. Rep. 106. a Constable's cafe. The commiffioners upon the ftatute of 28 H. 8. had given judgment of death against him that ftruck at fea, and the party died at land; and the fame law I take to be, where he that hath the franchise of Infangthief, gives judgment of death against a felon not within his jurifdiction. 2 R. 3. 10. b. the cafe of the abbot of Crowland; it might be a caufe of a feizure of the liberty, but makes not the steward guilty of murder. And what I have faid of a proceeding in capitals without the strict extent of their commiffion may be faid of the like proceeding, where, in ftrictness of law, the commiffion happens to be determined.

A commiffion

A commiffion of gaol-delivery iffues to A. B. &c. they fit one day, and forget to adjourn their commiffion, or the clerk forgets to enter the adjournment, a felony is committed the next day, and they proceed in feffions, and take an indictment, and give judgment of death against the malefactor, this judgment is erroneous, and the clerk of affizes fhall never be permitted to amend the record, and enter an adjournment, this judgment is erroneous, and shall be reversed; but it makes not the judges guilty of murder or homicide, tho in [499] strictness of law their commiffion was determined by the first day's feffion without adjournment.

King James iffued out feveral commiffions of gaol-delivery, &c. the justices went their circuit, the king died, yet they proceeded, and before notice of the king's death condemned and executed many prifoners; it is held these proceedings were good, and the commiffions ftood till notice of the king's death, M. 3 Car. C. B. Sir Randolph Grew's cafe (b), tho, in strictness of law, their coinmiffions were determined by the king's death; but fuppofe they were both in law and fact determined, the judgments that happened upon feffions begun after the king's death would be erroneous, but the judges had not been criminal in commanding the execution of their fentence before notice; for if ignorantia juris doth in fome cafes excuse a judge, much more doth ignorantia falli.

If a commiffion of gaol-delivery iffue to A. B. and C. in the county of D. and afterward a fecond commiffion of gaol-delivery in the fame county iffue to E. F. and G. and there is notice given to the former commiffioners, but no feffion by virtue of the fecond commiffion, whereupon the former proceed notwithstanding that notice in pays, (as conceiving it infufficient, unless either a writ of Superfedeas had been fent them, or at least a feffion by the fecond commiffion) and they proceed in cafes capital, this makes them not guilty of felony, 34 Aiz. 8. becaufe tho the fecond commiffion be effectual for them to proceed without any actual revocation by Superfedeas, or otherwife of the former, yet the former is not actually determined, till a Superfedeas or a feffion by virtue of the fecond commiffion, upon an extrajudicial notice, or a notice in pays, the first commiffioners may, if they please, forbear any further feffion, but they are not bound to take notice of rumours and reports; the like in case of a sheriff, M. 26 Eliz. Moore 333. 5 E. 4.

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b) Cro. Car. 98.

Ff

If

If in the time of peace a commiffion iffue to exercise martial law, and fuch commiffioners condemn any of the king's fubjects (not being lifted under the military power), this is without all question [500] a great mifprifion, and an erroneous proceeding, and accordingly adjudged in parliament in the cafe of the earl of Lancaster, Parl. 1 E. 3. part 1. de quo fupra, p. 344.

And in that cafe the exercise of martial law in point of death in time of peace is declared murder. Co. P. C. p. 52.

But fuppofe they be lifted under a general or lieutenant of the king's appointment under the great feal, and modelled into the form and difcipline of an army, either in garrifon or without, yet as long as it is tempus pacis in this kingdom, they cannot be proceeded against as to lofs of life by martial law; and the fame for mariners that are within the body of the kingdom, but their misdemeanors, at least if capital, are to be punished according to the fettled laws of the kingdom, 3 Car. cap. 1. the petition of right; yea, and it seems as to mariners and foldiers at fea, when in actual fervice in the king's ihips, they ought not to be put to death by martial law, unless it be actually in time of hoftility; and this appears by the statute of 28 H. 8. that fettled a commiffion to proceed criminally in cafes of treafon and felony, and by the late act of 13 Car. 2. cap. 9. fettling special orders under pain of death by act of parliament (c); but indeed, for crimes committed upon the high fea, the admiral had at common law a jurifdiction even unto death, fecundum leges maritimas; but this was a different thing from martial law.

And this appears alfo by the ftatute of 13 R. 2. cap. 2. the conftable and marshal, who are the judices ordinarii in cafes belonging to the martial law, are yet thereby declared to have no jurifdiction within the realm, but of things that touch war, which cannot be difcuffed nor determined by the common law.

It must therefore be a time of war, that muft give exercise to their jurifdictions, at leaft in cafes of life.

And thus far concerning the judicial fentence of death, where and when it is homicide criminally, and when not.

II. Now a few words concerning the officer executing fuch fentence, and where and when he is culpable in fo doing.

(c) And this appears alfo from the an- fertion, 3 Geo. 1. cap. 2, 5 multos alios. nual ftatutes for punishing mutiny or do

Wherefoever

Wherefoever the Judge hath jurifdiction of the caufe, the officer executing his fentence is not culpable, tho the judge err in his judgment, but if the judge have no manner of jurifdiction in the cause, the officer is not altogether excufable, if he execute the sentence.

In the great courts of justice, as of oyer and terminer, gaol-delivery, and of the peace, regularly, the theriff of the county, or those that he substitutes, as under-fheriff, gaoler, or executioner, are the ordi nary minifters in execution of malefactors, and they are to purfue the fentence of the court, and therefore, 1. If he vary from the judg ment, as where the judgment is to be hanged, if he behead the party, it is held murder (d). 2. It must be done by the proper officer, viz. the fheriff or his fubftitute, if another doth it of his own head, it is held murder: vide Co. P. C. p. 52.

The ufe heretofore was, and regularly should be fo ftill, that if fentence of death be given by the lord high steward. a warrant under the feal of the lord steward, and in his name fhould iffue for the execution, and the like by three at least of the commiffioners of oyer and terminer, where fentence of death is given by them. Co. P. C. p. 31.

But ufe hath obtaind otherwife before commiffioners of goal-delivery, for there is no warrant under the feal of the juftices for execu tion, but only a brief abftract or calendar left with the fheriff or gaoler; and I remember Mr Justice Rolle would never subscribe a calendar, but after judgment given would command the theriff in court to do execution, and for not doing it, he fined Varney the fhe riff of Warwickshire 2000 l.

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If a prisoner be removed into the king's bench by Habeas Corpus, or taken upon an indictment of felony in Middlefex, and be committed to the marshal, and upon his arraignment be found guilty, and hath judgment to die, the court may fend the perfon to Newgate, and command the sheriff of Middiefex to do execution, but

(d) Of this opinion was alfo lord Coke, Co. P. C. p. 52. 211. notwithstanding it had been practifed otherwife in fome inftances, as in the cafe of queen Ann Boleyn, and queen Katherine Howard, in the time of Henry VIII. the duke of Somerset in the time of Edward VI. and the lord Audley in the time of Charles I. upon the authority of which cafes the lady Alice Lifle was beheaded for treafon 1 Jac. 11. See State Tr. Vol. IV. p. 129.

So in the cafes of Ashton, 19 Jan. 1690. at the Old Baily, (State Tr. Vol. IV. p. 483.) and Matthews the printer, Octob. 30, 1719.

at the Old-Baily, who were both fentenced for high treason, and were hanged till they were dead, without any quartering or be heading, altho this was not only different from, but contrary to the fentence in high treafon, which orders, that they shall be hanged, but not till they are dead: but as lord Coke fays in the place above-mentioned, Judicandum eft legibus non exemplis; and indeed, fince the judgment is the warrant for the execution, is fhould feem that every execution, which is not pursuant to the judgment, is unwarrantable.