By what war

rant to be made.

that it is manifest that she is the person, yet execution is not to be awarded against her, till she be demanded what she can say why execution shall not be awarded; for she may alledge pregnancy, which though it be no cause to save herself, from pleading upon her arraignment, nor from having judgment pronounced against her, upon her conviction; yet it is a good cause to respite execution. 2 Hale's Hist. 407. 2 Hawk. c. 51. s. 10.

And this respite is not discretionary, but to be granted by the court quasi de jure. 1 Hale's Hist. 368.

And when the woman alleges pregnancy, the sheriff or marshal shall be commanded to take her into a private room, and to im panel a jury of matrons to try and examine whether she be quick with child or not; and if they find her quick with child, the execution shall be respited till her delivery. 2 Hawk. c. 51.

S. 9.

But a woman cannot demand such respite of execution, by reason of her being quick with child more than once. 2 Hawk, c. 51. s. 10.

Nor can a woman have advantage from being found with child, unless she be also found quick with child. 3 Inst. 17. Staund. P. C. 198. 2 Hawk. c. 51. s. 10.

2. Where the judgment was given at a former session, for in that interval, between this and the former session, he may have a pardon to plead. 2 Hale's Hist. 407.

3. Where a person attainted hath been at large after his attain. der, and afterwards is brought into court, it shall be demanded, why execution shall not be awarded against him; and if he deny that he is the same person, it shall be immediately tried by a jury returned for that purpose. 2 Hale's Hist. 407. 2 Hawk.

c. 51. s. 3.

4. If judgment were given in another court, or by other jus tices, as in the case where a record of an attainder comes from another court by certiorari into the King's Bench, or if a man be outlawed for felony, and the outlawry either removed or returned into the King's Bench, and the felon brought in by habeas corpus, or capias utlagatum, he shall be demanded what he can say, why execution should not be awarded against him; for in these cases, 1. He shall not be concluded by the return of the sheriff, from saying he is not the same person, that was outlawed, and upon that issue may be joined, and it shall be entered of record and tried, unless the attorney general confess it. 2. He may have the king's pardon to plead; or, 3. In the case of an outlawry, he may assign error. 2 Hale's Hist. 407.

The court of King's Bench may command execution to be done without any other writ or warrant but an award of the court upon the judgment. 2 Hale's Hist. 409.

But when an attainder of felony or treason is against a noble man in the court of the lord high steward, the judgment ir

pronounced by the lord high steward, and the warrant for execution is under his precept and seal in his own name, though in the court of the peers in parliament it is done by writ from the king. Co. P. C. 31. 2 Hale's Hist. 409. 4 Black. Com. 403.

And formerly, when judgment was given by commissioners of oyer and terminer, or justices of gaol delivery, it was required that a precept should issue to the sheriff in the names and under the hands and seals of such commissioners or justices, commanding execution to be done. Co. P. C. 31. 2 Hale's Hist. 409.

But it was afterwards established, that in case of life the judge may command execution to be done without any writ; and the usage is now 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; viz. for a capital felony let him be hanged by the neck; formerly in the days of Latin, and ab. breviation, 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. Finch 478. 4 Black. Com.

403.

be made.

Regularly, the officer that is to make the execution, is that Bywhat officer, officer in whose custody by law the prisoner is, at the time of execution is to the judgment given; for into his custody he is to be remanded, after judgment pronounced, and there to stay till judgment executed. 2 Hale's Hist. 410.

Therefore, where judgment is given at the sessions of gaol delivery, the execution is to be made by the sheriff, or his undersheriff or deputy, for he is in his custody ordinarily. 2 Hale's Hist. 410.

But if the prisoner be in the Tower of London (which is oftentimes the case in great treasons) and he be arraigned before justices of oyer and terminer, he is commonly brought before them by a precept to the constable of the Tower (which is an exempt prison from that of the sheriff); and if he be convict and attaint, he is commonly remitted thither, and the precept or warrant for execution, must go to the licutenant or constable of the Tower; but usually a command or precept is made to the sheriffs of London and Middlesex to be assisting to the lieutenant. 2 Hale's Hist. 410.

So if the prisoner be arraigned in the King's Bench either for treason or felony, he is or ought to be always first committed to the marshal, and by him is to be brought to the bar upon his trial and judgment, and to him he is to be remitted after judgment, till execution; and wheresoever the crime was committed, yet the marshal is to make execution, for he is in this case the immediate officer to the court, and the prisoner is not in the Custody of any sheriff, but of the marshal: only the court gives

The time of execution.

The manner of

the execution.

order to the sheriff of the county to be assisting to the marshal. 2 Hale's list. 411.

But when a prisoner has been at large after attainder, and is brought into the King's Bench by virtue of a writ of habeas corpus, the court, upon his identity being established, will award execution, and make a rule for its being done, and will also order a writ, to the officer in whose custody he is brought up, to deliver him to the sheriff, and another to the sheriff to receive him, and to cause execution to be done. Cro. Jac. 496. 3 State Tri. 101. Foster's Cr. L. 43.

Or if the sheriff of the county by whom execution is to be done is in court, the court will by the same rule commit the prisoner to the custody of such sheriff instanter, and therein order that such sheriff do execution in pursuance of the judg ment +. 3 Burrow's 1812.

But in the case of murder, it is enacted by 25 Geo. 2. c. 37, That all persons found guilty of wilful murder shall be executed on the day next but one after sentence passed, unless the same be a Sunday, and in that case on the Monday following, and that the sentence shall express not only the usual judgment of death, but also the time appointed thereby for the execution.

s. 1.

And a peer indicted of felony and murder, and tried and convicted thereof before the lords in parliament, ought to receive judgment for the same according to the provisions of this act. The Earl of Ferrers's case. Foster 139. 10 State Tri. 478.

It was determined by the twelve judges, in Mic. Ter. 10 Geo. 3. that, except in the case of murder, the time and place of execution are by law no part of the judgment. 4 Black. Com.

404.

Therefore the sheriff, upon receipt of his warrant, is to do execution within a convenient time ‡. 4 Black. Com. 404. 3 Burrows 1812.

As to the manner of the execution, as it is to be done by the proper officer, so it is to be done pursuant to the judgment, 2 Hale's Hist. 411.

* When the prisoner is in the custody of the marshal, the usual place of execution is at St. Thomas' à Waterings, in the county of Surry. 4 Burr.

2086.

And it is in the discretion of the court, whether they will in such rule appoint the time and place, or leave it to the sheriff.

In London indeed a more solemn and becoming exactness is used, both as to the warrant of execution, and the time of executing thereot: 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. 4 Black. Com. 404.

And the judgment in case of felony is, that he be hanged by the neck, until he be dead. 2 Hale's Hist. 411.

Therefore if the party be hanged, and cut down and revive again, yet he must be hanged again, for the judgment is not executed till he be dead. 2 Hale's Hist. 412. 2 Hawk. c. 51. s. 7. But the sheriff may not alter the execution; if he doth it is felony, and some say murder. 2 Hale's Hist. 411.

That is, if the officer of his own head, and without warrant or the colour of authority, varieth from the judgment, he may be criminal to that degree; for there he wilfully and deliberately acteth in defiance of law, and in so doing sheddeth the blood of a man, whose person, till execution is done upon him in a duc course of justice, is equally under the protection of the law with every other subject. Foster's Cr. L. 267.

And it is held by Sir Ed. Coke and Sir Math. IIale †, notwithstanding some examples to the contrary, that even the king cannot change the punishment of the law, by altering the hanging into beheading (although it is agreed that where beheading is part of the judgment, as it is in the case of high treason, the king may pardon all but the beheading‡). But others have thought, and, as Mr. justice Blackstone conceives more justly, that this prerogative, being founded in mercy, and immemorially exercised by the crown, is part of the common law. 4 Black. 405.

For although it is true that the king cannot by his prerogative vary the execution, so as to aggravate the punishment beyond the intention of the law; yet it doth not follow from thence that he who can wholly pardon the offender, cannot mitigate his punishment with regard to the pain or infamy of it. Foster's Cr. L. 269.

And in every instance this exchange has been for a more merciful kind of death, and esteemed as a matter of royal grace, and granted at the prayer of the party or his friends. 4 Black. Com. 405. Foster's Cr. L. 269.

Therefore it will not, according to the opinion of Foster, be criminal in the officer, who obeys a warrant from the crown, for beheading a person, who is under sentence of death for a felony. Foster's Cr. L. 268.

It seems agreed, that every court which has power to award Reprieve. an execution, has also of common right a discretionary power of granting a reprieve; as where a person pleads a pardon defective in point of form, but sufficiently shewing the king's

* 3 Inst. 52, 211, 212, 217. 1? Co Rep. 130.

+1 Hale's Hist. 301. 2 Hale's list 411.

For, according to Coke and Hole, the beheading is part of the judgment, and the judgment is not altered, but part of it remitted. 3 Inst. 52. 2 Hate's Hist. 412.

intention of mercy; or where it is doubtful whether the offence be not included in a general statute pardon; or whether as it is laid in the indictment, it amounts to so high a crime as that with which the prisoner was charged *. 2 Hawk. c. 51. s. 8.

And from common usage it seems settled, that these re prieves may be granted or taken off by the judges, although their session be adjourned or finished. 2 Hale's Hist. 412. Dyer 205.

So if the party after conviction become non compos, he shall not be executed. 1 Hawk. e. 1. s. 3.

Or if an infant within the years of discretion be convicted of a capital of. fence, the judges will in prudence respite the execution in order to get a pardon. 1 Hawk. c. 1. s. 8.

What it is.

EXTORTION

EXTORTION.

TORTION is said by my lord Coke to signify any op pression + by colour or pretence of right § and in this respect it is said to be more heinous than robbery itself; as also, that it is usually attended with the aggravating sin of perjury. Co. Lit. 368. b. 10 Co. 102. a.

But in a strict sen e, it is, the taking of money, by any offi cer, by colour of his office*, either when none at all is due, or not so much is due, or where it is not yet duet. Co. Lit. 368. 10 Co. 102.

+ Any oppression.] As if the chancellor and register of a diocese compel an executor to prove a will in the Bishop's court, knowing it to have been proved in the Prerogative, and take fees. 1 Strange 73, 74.

Or if a sheriff's officer takes or bargains for money to be paid him, for letting to bail a person whom he has arrested. 2 Burrows 924.

Or to arrest a man in order to obtain a release from him. 8 Mod. 189. Or if the owner of the soil of a market covers the market place so completely with stalls, that there is not sufficient room for the market people to stand and sell their wares, by reason whereof they are forced to hire the stalls, the taking of money for the use of the stalls in such case is extortion; but if the people have room enough clear to themselves, and they for their farther conveniency voluntarily hire these stalls, there is no extortion in taking rent for them. 1 Ld. Raym. 149.

§ Or pretence of right.] As if any judge or officer takes more than the usual fee; or a miller takes more for toll than is due by custom, or a ferryman more for his ferry. 2 Kol. 263. 1 Ld. Raym. 149. 4 Mod. 101.

So also if an attorney, who has caused another to be arrested, refuse to discharge the action unless he is paid a gross sum of money, for his costs, and more than he is entitled to; and at the same time, also refuses to deliver a bill of particulars, this will be extortion.

* By colour of his office.] As if a gaoler obtain money from his prisoner by any Colourable means. 8 Mod. 226.

Or a churchwarden colore officii. 1 Siderfin 307.

+ Or where it is not yet due.] As if an undersheriff refuse to execute process before his fees are paid. Salkeld 350.