Therefore it is necessary, 1. That he, that gives sentence of death against a malefactor, be authorized by lawful commission or charter, or by prescription to have cognizance of the cause. 2. That be that executes such sentence be authorized to make such execution, otherwise it will be murder or manslaughter, or at least a great misprision in the judge that sentenceth, or in the minister that executeth.[2]

I. As touching the authority of the judge, I shall not at large discourse the jurisdiction of the judges or courts in this place; it will be more proper hereafter; but shall mention only some things, that may be seasonable for this place.

If he that gives judgment of death against a person, hath no commission at all, if sentence of death be commanded to be executed by such person, and it is executed accordingly, it is murder in him that commands it to be executed, for it was coram non judice.

If a commission of the peace issue, this extends not to treason, neither can justices of peace hear and determine all treasons by force of this commission, for it extends only to felonies, (tho some treasons are by act of parliament limited to their coguizance, as hath been before observed) if they take an indictment of treason, and try and give judgment upon the party, this is most certainly erroneous, and possibly avoidable by plea, but I do not think it makes the justices guilty of murder in commanding the execution of such sentence, for they were not without some colour of proceeding therein, because all treason is felony, tho it be more, and the

king may, if he pleases, proceed against a traitor for felony; [498] and antiently a pardon of all felonies discharged some trea

sons. 1 E. 3. Charter de Pardon 13. 22 Assiz. 49 Co. P. C. p. 15. but it is a great misprision in such justices.

The justices 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 misprision in them, but not felony, because they had colour to hold plea thereof by an original writ out of the chancery under the great seal.

Upon the same reason I take it, that if there be a writ sent to the sheriff, eschetor, or A. B. and C. to hear and determine felonies, whereas it ought to be a commission, 42 Assiz. 12, 13. and they proceed thereupon to a judgment and execution in case of felony, it is a great misprision, but I think it makes not the judge nor executioner guilty of murder; the same law I take to be in Lacie's case, quod vide Co. P. C. p. 48. 5 Co. Rep. 106. a Constable's case. The commissioners upon the statute of 28 H. 8. had given judgment of death against him that struck at sea, and the party died at

[2] 3 Inst. 52. 211; Foster, 270; F. N. B. 244 h; 19 Rym. Fœd. 284; 1 East, P. C. 335.

land; and the same law I take to be, where he that hath the franchise of Infangthief, gives judgment of death against a felon not within his jurisdiction. 2 R. 3. 10. b. the case of the abbot of Crowland; it might be a cause of a seizure of the liberty, but makes not the steward guilty of murder.

And what I have said of a proceeding in capitals without the strict extent of their commission may be said of the like proceeding, where, in strictness of law, the commission happens to be determined.

A commission of gaol-delivery issues to A. B. &c. they sit one day, and forget to adjourn their commission, or the clerk forgets to enter the adjournment, a felony is committed the next day, and they proceed in sessions, and take an indictment, and give judgment of death against the malefactor, this judgment is erroneous, and the clerk of assizes shall 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 strictness of law their commission was determined by the [499] first day's session without adjournment.

King James issued out several commissions 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 prisoners; it is held these proceedings were good, and the commissions stood till notice of the king's death, M. 3. Car. C. B. Sir Randolph Crew's case,(b) tho, in strictness of law, their commissions were determined by the king's death; but suppose they were both in law and fact determined, the judgments that happened upon sessions begun after the king's death would be erroneous, but the judges had not been criminal in commanding the execution of their sentence before notice; for if ignorantia juris doth in some cases excuse a judge, much more doth ignorantia facti.

If a commission of gaol-delivery issue to A. B. and C. in the county of D. and afterward a second commission of gaol-delivery in the same county issue to E. F. and G. and there is notice given to the former commissioners, but no session by virtue of the second commission, whereupon the former proceed notwithstanding that notice in pays, (as conceiving it insufficient, unless either a writ of Supersedeas had been sent them, or at least a session by the second commission) and they proceed in cases capital, this makes them not guilty of felony, 34 Assiz. 8. because tho the second commission be effectual for them to proceed without any actual revocation by Supersedeas, or otherwise of the former, yet the former is not actually determined, till a Supersedeas or a session by virtue of the second commission, upon an extrajudicial notice, or a notice in pays, the first commissioners may, if they please, forbear any further session, 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.

If in the time of peace a commission issue to exercise martial law, (b) Cro. Car. 98

and such commissioners condemn any of the king's subjects (not being listed under the military power,) this is without all [500] question a great misprision, and an erroneous proceeding,

and accordingly adjudged in parliament in the case of the earl of Lancaster, Parl. 1 E. 3. part 1. de quo supra, p. 344. And in that case the exercise of martial law in point of death in time of peace is declared murder. Co. P. C. p. 52.

But suppose they be listed under a general or lieutenant of the king's appointment under the great seal, and modelled into the form and discipline of an army, either in garrison or without, yet as long as it is tempus pacis in this kingdom, they cannot be proceeded against as to loss of life by martial law; and the same for mariners that are within the body of the kingdom, but their misdemeanors, at least if capital, are to be punished according to the settled laws of the kingdom, 3 Cur. cap. 1. the petition of right; yea, and it seems as to mariners and soldiers at sea, when in actual service in the king's ships, they ought not to be put to death by martial law, unless it be actually in time of hostility; and this appears by the statute of 28 H. 8. that settled a commission to proceed criminally in cases of treason and felony, and by the late act of 13 Car. 2. cap. 9. settling special orders under pain of death by act of parliament;(c) but indeed, for crimes committed upon the high sea, the admiral had at common law a jurisdiction even unto death, secundum leges maritimas; but this was a different thing from martial law.

And this appears also by the statute of 13 R. 2. cap. 2. the constable and marshal, who are the judices ordinarii in cases belonging to the martial law, are yet thereby declared to have no jurisdiction within the realm, but of things that touch war, which cannot be discussed nor determined by the common law.

It must therefore be a time of war, that must give exercise to their jurisdictions, at least in cases of life.

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

II. Now a few words concerning the officer executing such sentence, and where and when he is culpable in so doing.

Wheresoever the judge hath jurisdiction of the cause, the [501] officer executing his sentence is not culpable, tho the judge err in his judgment, but if the judge have no manner of jurisdiction in the cause, the officer is not altogether excusable, if he execute the sentence.

In the great courts of justice, as of oyer and terminer, gaoldelivery, and of the peace, regularly, the sheriff of the county, or those that he substitutes, as under-sheriff, gaoler, or executioner, are the ordinary ministers in execution of malefactors, and they are to pursue the sentence of the court,[3] and therefore, 1. If he vary from (c) And this appears also from the annual statutes for punishing mutiny or desertion. 3 Geo. 1. cap. 2. & multos alios.

[3] See this rule explained, Foster, 267, sec. 9.

the judgment, 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 sheriff or his substitute, if another doth it of his own head, it is held murder: vide Co. P. C. p. 52.[4]

The use heretofore was, and regularly should be so still, that if sentence of death be given by the lord high steward, a warrant under the seal of the lord steward, and in his name should issue for the execution, and the like by three at least of the commissioners of oyer and terminer, where sentence of death is given by them. Co. P. C. p. 31.

But use hath obtaind otherwise before commissioners of goaldelivery, for there is no warrant under the seal of the justices for execution, but only a brief abstract or calendar left with the sheriff or gaoler; and I remember Mr. Justice Rolle would never subscribe a calendar, but after judgment given would command the sheriff in court to do execution, and for not doing it, he fined Varney the sheriff of Warwickshire 20001.

If a prisoner be removed into the king's bench by Habeas Corpus, or taken upon an indictment of felony in Middle- [502] sex, and be committed to the marshal, and upon his arraignment be found guilty, and hath judgment to die, the court may send the person to Newgate, and command the sheriff of Middlesex to do execution, but if he be remitted to the marshal, (as regularly he ought to be,) then the marshal is the proper officer of the court to do execution, and he may execute the offender in Middlesex, whereever the offense was committed,(e) and the court may ore tenus, or by their order, command the sheriff of Middlesex to be assisting, but the entry upon the roll ought to be, Et præceptum est marescallo, &c. quod faciat executionem periculo incumbente; and thus it was done H. 24. Car. 2. upon a conviction of murder committed in Kent upon a trial at the king's bench bar, upon search and producing of many antient and late precedents, for regularly, he that is the

(d) of this opinion was also lord Coke, Co. P. C. p. 52. 211. notwithstanding it had been practised otherwise in some instances, as in the case 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 cases the lady Alice Lisle was beheaded for treason. 1 Jac. II. See State Tr. Vol. IV. p. 129.

So in the cases 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 sentenced for high treason, and were hanged till they were dead, without any quartering or beheading, altho this was not only different from, but contrary to the sentence in high treason, which orders, that they shall be hanged, but not till they are dead: but as lord Coke says in the place above-mentioned, Judicandum est legibus non exemplis; and indeed, since the judgment is the warrant for the execution, it should seem that every execution, which is not pursuant to the judgment, is unwarrantable.

(e) See Althoes case supra in notis p. 464. who were executed in Surrey for a fact committed in Pembrokeshire in Wales: see also the case of Fitz-Patrick and Brodway, State Tr. Vol. I. p. 374, who were executed in Middlesex for a fact in Wiltshire, and the case of Layer, State Tr. Vol. VI. p. 332. who was executed in Middlesex for a fact in Essex.

[4] 4 Bl. Com. 178.

immediate minister of the court, ought to make execution, and such is the marshal to the court of king's bench, especially where the persons are committed to his custody, and this is done without any writ, but only by the command of the court ore tenus.

And thus far concerning the death or killing of a man, where it is not, and where it is punishable, and the several degrees thereof.[5] Foster, 267.

[503]

CHAPTER XLIII.

OF LARCINY, AND ITS KINDS.

ALTHо the offenses of burglary and arson are of an higher nature than larciny, yet because there be some things that fall under the consideration of larciny, that are necessary to be known previously to the consideration of burglary, &c. I shall begin with this.

Larciny or theft, under the various laws of several countries, hath been under various degrees of punishment: in some countries the punishment was triple or fourfold restitution, as among the Jews,(a) in others deportation or banishment, or condemning to several employments, as among the Romans.(b)

And in England, in antient time, the punishment of theft was not fixed or settled, and altho Hoveden and Simon Dunelmensis tell us, that firmissima lege statuit Henricus primus, quod fures latrocinio deprehensi suspendantur; yet in the time of Henry II. they were otherwise punished; quod vide apud Selden. Jur. Ang. p. 83. But the same law, touching the punishment of grand larciny with death, seems to have been fixed and settled ever since the time of Henry II. and Bracton, that wrote in the time of Henry III. takes it as a thing settled and commonly practised in his time: vide ipsum. Lib. III. cap. 32. p. 151. b.(*)

Now touching the kinds of larcinies they are two, viz. either simple larciny, or larciny accompanied with violence or putting in fear, which is called robbery.

Simple larciny or theft is of two kinds, viz.

Grand larciny, when it is above the value of twelve-pence.

Petit larciny, when only of the value of twelve-pence, or under. The nature of the offense is the same in both, but the degrees of their punishment differ, as shall be said.

(a) Vide supra, p. 9. (b) Vide supra, p. 11. (*) Vide suprap. 12. & notas ibidem.

[5] In McLeod's case, the Supreme Court of the State of New York held that a subject of Great Britain, who, under directions from the local authorities of Canada, commits homicide, within the State of New York, in time of peace, may be prosecuted in the State courts as a murderer; even though his sovereign subsequently approve his conduct, by avowing the direction, under which he did it as a lawful act of government. The People v. McLeod, 1 Hill, 377.