that at a proper time: for if a man is indicted, and has a pardon in his pocket, and afterwards puts himself upon his trial by pleading the general issue, he has waived the benefit of such pardon (1). But, if a man avails himself thereof, as soon as by course of law he may, a pardon may either be pleaded upon arraignment, or in arrest of judgment, or in the present stage of proceedings, in bar of execution. Anciently, by statute 10 Edw. III. c. 2. no pardon of felony could be allowed, unless the party found sureties for the good behaviour before the sheriff and coroners of the county (m). But that statute is repealed by the statute 5 & 6 W. & M. c. 13, which, instead thereof, gives the judges of the court a discretionary power to bind the criminal, pleading such pardon, to his good behaviour, with two sureties, for any term not exceeding seven years.

4. Lastly, the effect of such pardon by the king, is to make the offender a new man; to acquit him of all corporal penalties and forfeitures annexed to that offence for which he obtains his pardon; and not so much to restore his former, as to give him a new credit and capacity. But nothing can restore or purify the blood when once corrupted, if the pardon be not allowed till after attainder, but the high and transcendent power of parliament. Yet if a person attainted receives the king's pardon, and afterwards hath a son, that son may be heir to his father, because the father being made a new man, might transmit new inheritable blood; though, had he been born before the pardon, he could never have inherited at all (n) (9).

CHAPTER XXXII.

OF EXECUTION (1).

THERE now remains nothing to speak of, but execution; the completion of human punishment. 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 anciently 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 (a): though, in the court of the peers in parliament, it is done by writ from the king (b). Afterwards it was established (c), that, in case of life, the judge may command execution to be done without any writ. And now the usage is, 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. As, for a capital 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 (d), "sus. per col." 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 (e). It may certainly

(1) 2 Hawk. P. C. 396.

(m) Salk. 499.

(n) See Book II. page 254.

(a) 2 Hal. P. C. 409.

(9) A son born after the attainder may inherit if he has no elder brother living born before the attainder, otherwise the land will escheat

(b) See Appendix, ♦ 5.

(c) Finch, L. 478.

(d) Staundf. P. C. 182.
(e) 5 Mod. 22.

pro defectu haeredis. 1 H. P. C. 358.

(1) As to this in general, see 1 Chit. C. L. 2 ed. 779 to 811.

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 [*404] man, the most important and terrible task of any, should depend upon a marginal note (2) (3).

The sheriff, upon receipt of his warrant, is to do execution within a convenient time; which in the country is also left at large (4), (5). In London indeed a more solemn and becoming exactness is used, both as to the warrant of execution, and the time of executing thereof: 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 (f). And, 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 (g), or leaving it to the discretion of the sheriff (h). And, throughout the kingdom, by statute 25 Geo. II. c. 37. it is enacted, that, in case of murder, the judge shall in his sentence direct execution to be performed on the next day but one after sentence passed (i). But, otherwise, the time and place of execution are by law no part of the judgment (k) (6). It has been well observed (1), that it is of great importance, that the punishment should follow the crime as early as possible; that the prospect of gratification or advantage, which tempts a man to commit the crime, should instantly awake the attendant idea of punishment. 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 subtituting one

(f) See Appendix, ◊ 4.

(g) St. Trials, VI. 332. Fost. 43. (h) See Appendix, ◊ 3.

(i) See page 202.

(2) 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 assize makes out in writing 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 opposite 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 the clerk of assize each keep another. If the sheriff receives afterwards no 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

(k) So held by the twelve judges, Mich. 10 Geo. III. (1) Beccar. ch. 19.

variations, as in Lancashire, 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 upon condition of transportation or some slight punishment. This recommendation is always attended to.

(3) In New-York, the judgment is entered fully on the minutes of the clerk, (2 R. S. 738, § 5,) and the defendant may procure a record to be made up. Id. § 4.

(4) In New-York, the time for executing the sentence of death is not less than four nor more than eight weeks. (2 R. S. 658, § 11.)

(5) In general the court do not appoint the time of execution. 3 Burr. 1812.

(6) See 3 Burr. 1812. And even the above statute is only directory as to awarding the day of execution, and does not render it an essential requisite. Russ. & R. C. C. 230.

death for another, without being guilty of felony himself, as has [*405] been formerly said (m). It is held also by sir Edward Coke (n) and sir Matthew Hale (0), that even the king cannot change the punishment of the law, by altering the hanging or burning (7) 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 (p), and more justly, that this prerogative, being founded in mercy, and immemorially exercised by the crown, is part of the common law. 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 (q). The lords resolved (r), that the scruples of the sheriffs were unnecessary, and declared, that the king's writ ought to be obeyed. Disappointed of raising a flame in that assembly, they immediately signified (s) 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 (t) sullenly resolved, that the house was content that the sheriff do execute lord Stafford, by severing his head from his body. It is further related, that when afterwards the same lord Russel was con

demned for high treason upon indictment, the king, while he remit[*406] ted the ignominious part of the *sentence, observed, "that his

lordship would now find he was possessed of that prerogative, which in the case of lord Stafford he had denied him (u)." 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 (w). 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 (x), such a criminal, so reviving, was not allowed to take sanctuary and abjure the realm; but his fleeing to sanctuary was held an escape in the officer (y).

And, having thus arrived at the last stage of criminal proceedings, or execution, the end and completion of human punishment, which was the sixth and last head to be considered under the division of public wrongs, the fourth

(m) See page 179.

(n) 3 Inst. 52.

(0) 2 Hal. P. C. 412.

(p) Fost. 270. F. N. B. 244. h. 19 Rym. Foed. 284.

(g) 2 Hum. Hist. of G. B. 328.

(r) Lords' Journ. 21 Dec. 1680.

(s) Com. Journ. 21 Dec. 1680.

(t) Ibid. 23 Dec. 1680.

(u) 2 Hume, 360.

(w) 2 Hal. P. C. 412. 2 Hawk. P. C. 463.
(z) See page 326.

(y) Fitz. Abr. t. corons. 33. Finch, L. 467.

(7) Now abolished, see ante, 376. note (3).

and last object of the laws of England; it may now seem high time to put a period to these Commentaries, which, the author is very sensible, have already swelled to too great length. But he cannot dismiss the student, for whose use alone these rudiments were originally compiled, without endeavouring to recall to his memory 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 he will attempt to discharge, however imperfectly, in the next or concluding chapter.

CHAPTER XXXIII.

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

BEFORE we enter on the subject of this chapter, in which I propose, by way of supplement to the whole, to attempt an historical review of the most remarkable changes and alterations, that have happened in the laws of England, I must first of all remind the student, 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 I should re-examine them with any degree of minuteness; which would be a most tedious undertaking. What I therefore at present propose, 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 I shall consider the state of our legal polity, are the following six: 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 [*408] thence to the revolution in 1688: 6. From the revolution to the present time.

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 here must needs be very fruitless and defective. However, from Cæsar's account of the tenets and 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 our English law. Particularly the very notion itself of an oral unwritten law, delivered down from age to age, by custom and tradition merely, seems derived from the practice of the Druids, who never committed any of their instructions to writing: possibly for want of letters; since it is remarkable that in all the antiquities, unquestionably British, which the industry of the moderns has discovered, there is not in any

of them the least trace of any character or letter to be found. The partible quality also of lands by the custom of gavel-kind, which still obtains in many parts of England, and did universally 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 remember an instance of a slighter nature mentioned in the present volume, where the same custom has continued from Cæsar's time to the present; that of burning a woman guilty of the crime of petit treason by killing her husband (1).

The great variety of nations, that successively broke in upon [*409] 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, mutually communicated to each other their respective usages (a), 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, that this custom was derived from the Britons; that was left behind by the Romans; this was a necessary precaution against the Picts; that was introduced by the Saxons; discontinued by the Danes, but afterwards restored by the Normans.

Wherever this can be done, it is matter of great curiosity, and some use: but this can very rarely be the case; not only from the reason above mentioned, but also from many others. First, from the nature of traditional laws in general; which, being accommodated to the exigencies of the times, suffer by degrees insensible variations in practice (b): so that, though upon comparison we plainly discern the alteration of the law from what it was five hundred years ago, yet it is impossible to define the precise period in which that alteration accrued, any more than we can discern the changes of the bed of a river, which varies its shores by continual decreases and alluvions. Secondly, this becomes impracticable from the antiquity of the kingdom and its government which alone, though it had been disturbed by no foreign invasions, would make it impossible to search out the original of its laws; unless we had as authentic monuments,

thereof, as the Jews had by the hand of Moses (c). Thirdly, [*410] *this uncertainty of the true origin of particular customs must also in part have arisen from the means, whereby christianity was propagated among our Saxon ancestors in this island; by learned foreigners brought over from Rome and other countries, who undoubtedly carried with them many of their own national customs; and probably prevailed upon the state to abrogate such usages as were inconsistent with our holy religion, and to introduce many others that were more conformable thereto. And this perhaps may have partly been the cause, that we find not only some rules of the mosaical, but also of the imperial and pontifical laws, blended and adopted into our own system.

(a) Hal. Hist. C. L. 62.

(b) Ibid. 57.

(c) Hal. Hist. C. L. 59.

(1) But this is now altered by 9 Geo. IV. c. 31. See ante, p. 204.