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good-nature and humanity, but it is contrary to the good of “the public; for, although a private citizen may dispense with "satisfaction for his private injury, he cannot remove the necessity of public example. The right of punishing belongs "not to any one individual in particular, but to the society in general, or the sovereign who represents that society: and a man may renounce his own portion of this right, but he "cannot give up that of others."

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CHAPTER XXIX.

OF JUDGMENT AND ITS CONSEQUENCES.

WHEN, upon a charge of felony, the jury have brought in their verdict of guilty, in the presence of the prisoner, he is either immediately, or at a convenient time soon after, asked by the court, if he has anything to offer why judgment should not be awarded against him.* Where the defendant has been found guilty of a misdemeanor, the trial of which may, and sometimes does, happen in his absence, after he has once appeared, a capius may be awarded to bring him in to receive judgment; and if he absconds, he may be prosecuted to outlawry; or if he is under recognizances to appear, and makes default, the recognizances may be estreated, and a warrant issued for his apprehension.

But where the defendant appears in person, he may at this period, as well as at his arraignment, offer any exceptions to the indictment, in arrest or stay of judgment. And if his objection be valid; if, for instance, he has been found guilty of what does not constitute an offence in point of law, the judgment will be arrested, and the whole proceedings be set aside. A pardon also may be pleaded in arrest of judgment.

If these resources fail, the court must pronounce that judgment which the law has annexed to the crime. Of these some are capital, and consist in being hanged by the neck till dead. Other circumstances of terror, pain, or disgrace, were formerly superadded, as in high treason, being drawn to the place of

* It was at this point of the proceedings that the prisoner was entitled to pray his clergy.

exccution should not be awarded against him; and if he appears to be insane, the judge in his discretion may and ought to reprieve him.

3. The last resort is a pardon. Law cannot be framed on principles of compassion to guilt; yet justice is bound to be administered in mercy. And the crown, therefore, may pardon directly all offences that are merely against itself or the public. Against the crown or the public, be it observed, because, 1. The committing any man to prison out of the realm is, by the Habeas Corpus Act, a præmunire and unpardonable. 2. The crown cannot pardon where private justice is principally concerned in the prosecution; therefore the crown cannot pardon a common nuisance, while it remains unredressed, or so as to prevent an abatement of it, though the fine may afterwards be remitted. Neither can the crown pardon an offence against a popular or penal statute, after information brought for thereby the informer has acquired a private property in the penalty; but here also the crown can remit the penalty, and thereby deprive the informer of the proceeds of his judgment.

There is also a restriction on the prerogative of pardoning in the case of parliamentary impeachments; viz., that the royal pardon cannot be pleaded to any such impeachment, so as to stop the prosecution of great offenders; it being enacted by the Act of Settlement," that no pardon under the Great Seal of England "shall be pleadable to an impeachment by the commons in "parliament." But, after the impeachment has been determined it is not understood that the royal grace is further restrained: for, after the attainder of the rebel lords in 1715, three of them were from time to time reprieved, and at length received a pardon.

A pardon must, formerly, have been issued under the great seal; but it is now granted by warrant under the sign manual, countersigned by one of the secretaries of state. It may be absolute or conditional: that is, the sovereign may annex to his bounty a condition either precedent or subsequent, on the performance whereof the validity of the pardon will depend: and this by the common law. When granted, it may be pleaded, as has been pointed out, upon arraignment, or in arrest of judgment, or finally in bar of execution, as the circumstances require.

CHAPTER XXXI.

OF EXECUTION.

Execution is the completion of human punishment. In all cases not capital, the custody of prisoners under sentence is now in the gaoler, who is for this purpose the officer of the Government and under its direction and control. In capital cases, executions must be performed by the sheriff or his deputy. His warrant was anciently by precept under the hand and seal of the judge, as it still would be in the court of the lord high steward, in the execution of a peer, though in the court of the peers in parliament, it is done by writ from the crown. It is now the usage for the judge to sign the calendar, or list of all the prisoners' names, with their separate judgments in the margin, a copy of which is left with the sheriff. For a capital felony, the verdict of death is written opposite to the prisoner's name; and this is the only warrant that the sheriff has for so material an act as taking away the life of another.

The sheriff is to do execution within a convenient time; the time being by law no part of the judgment. The place of execution is within the walls of the prison in which the criminal is confined.

The sheriff cannot alter the manner of the execution by substituting one death for another, without being guilty of felony himself. Even the crown could not change the punishment of the law, by altering hanging into beheading; though when beheading was part of the sentence, the king might remit the rest.

When Lord Stafford was executed in the reign of Charles II., the sheriffs of London, having received the King's writ for beheading him, petitioned the House of Lords for a command from their Lordships how the said judgment should be executed; for, he being prosecuted by impeachment, they professed to entertain a notion which is said to have been countenanced by Lord Russel, that the King could not pardon any part of the sentence. The lords resolved 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 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 sheriffs do execute Lord Stafford by severing his head from his body. It is related, that when afterwards the said Lord Russel was condemned for high treason upon indictment, the King, while he remitted 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." One can hardly determine 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. 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.

This is 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 and last object of the laws of England.

CHAPTER XXXII.

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

IN the following chapter an attempt is to be made to mark out some outlines of English juridical history, by a chronological review of the state of our laws, and their successive mutations at different periods of time. And the several periods, under which our legal polity may be best considered seem to be the following six: 1. From the earliest times to the Norman Conquest; 2. From the Norman Conquest to the reign of Edward I.; 3.

From thence to the Reformation; 4. From the Reformation to the Restoration; 5. From thence to the Revolution in 1688; 6. From the Revolution to the present time.

1. And, first, with regard to the ancient Britons, the aborigines of our island, so little has been 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 of the ancient Druids in Gaul, in whom centred all the learning of these western parts, and who were as he tells us, sent over to Britain to be instructed, we may collect a few points, which bear a great affinity and resemblance to some of the modern doctrines of our 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 modern industry has discovered, there is not in any of them the least trace of any character or letter to be found. The partible quality of lands by the custom of gavelkind is undoubtedly of British origin. So likewise is the ancient division of the goods of an intestate between his widow and children, or next of kin; and so is an instance of a slighter nature of a custom continued from Cæsar's time almost to the present day; that of burning a woman guilty of the crime of petit treason by killing her husband.

The great variety of nations that successively broke in upon the British inhabitants, the Romans, the Picts, and, after them, the Saxons and Danes, must have caused great confusion and uncertainty in the laws of the kingdom; as they were very soon incorporated and blended together, and therefore it may be supposed mutually communicated to each other their respective usages, in regard to the rights of property and the punishment of crimes. So that it is next to impossible to trace out, with accuracy, when the several mutations of the common law were made, or what was the origin of the several customs at present used. It can seldom be said 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