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Pontiff, join in the cry, and thus the election is carried. If this method also fails, the scrutiny begins anew, and the election proves very tedious.
The Emperor of Germany, and the Kings of France and Spain, are allowed to exclude a person proposed for the Popedom; but this protest must be made before the complete declaration of the votes for such a person.
It is required that the Pope be an Italian, and at least fifty-five years of age; though they seldom elect any one who is not near seventy. When the election is over, the rest of the cardinals pay due homage to the Pope elect, who, after a short prayer, declares the name he will bear for the future. The chief of the cardinal deacons then proclaims him to the people, who, on these occasions, wait in great multitudes with eager expectation about St. Peter's place. The coronation of his holiness with the triple crown, is generally performed about eight days after.
XLI. Case and opinion on the execution of Doyle and Valline.
On Saturday, October 21, 1769, the Recorder of London passed sentence at the Old Bailey on several capital convicts, (amongst whom were, John Doyle and John Valline*) in the following words :
“ You the several prisoners at the bar, shall be taken hence to the place from whence you came, and from thence to the usual place of execution; where you are to be severally hanged by the neck till you are dead, and may God Almighty be merciful to your souls.”
Thursday, Nov. 9, The Sheriffs received a warrant from the Recorder, for the execution of John Doyle and John Valline; at the most convenient place near Bethnel-Green church. The Sheriffs, much startled at this variation from the sentence pronounced in court, laid their doubts before counsel ; and in consequence of the opinion received, wrote the following letter to Lord Weymouth.
(* They were weavers, and condemned for destroying work in the Jooms. E)
MY LORD, The inclosed will inform your lordship of the difficulty we are under respecting the execution of Doyle and Valline, two convicts now under sentence of death in Newgate. We propose to wait on his Majesty to-morrow morning, to deliver a like paper into his own hands, of which we think it proper previously to transmit you this copy, that his Majesty may be apprized of it.
Lord Weymouth's Answer.
Arlington-street, Nov. 13. : I have received your letter of this day's date, which was left at my office by Mr. Reynolds, at near eleven o'clock this night. I beg leave to inform you, that your intended mode of application to the King is irregular. I am ready to receive and lay before his Majesty, in a proper manner, any doubts which you may entertain with regard to the discharge of your duty on this occasion, and shall not fail to signify to you his Majesty's further commands thereupon.
The next morning, Nov. 14, the Sheriffs waited on Lord Weymouth, and delivered into his hands a petition, to be by him presented to his Majesty, of which the following is á copy :
To the King's most excellent Majesty. MOST GRACIOUS SOVEREIGN, The Recorder of London having signified to us, the Sheriffs of the county of Middlesex, that it is your Majesty's pleasure that the two convicts, John Doyle and John Valline, now under sentence of death in Newgate, who, at the lasť sessions of gąol delivery, holden for the City of London and county of Middlesex, were sentenced to be hanged at the usual place of execution, should, notwithstanding, be executed at the most convenient place near Bethnel-Green church; we humbly conceive it our duty to lay before your Majesty our doubts, whether we can lawfully comply with this your Majesty's pleasure, to which, upon all occasions, it is our most earnest wish to be able to conform.
On the most mature deliberation and inquiry which the time has permitted, we are advised, that the sentence pronounced by the court, is our warrant for execution, to which we must look; and that we shall not be justifiable in departing from it.
We, therefore, humbly pray, that your Majesty will be graciously pleased to respite the said execution, that the same may be re-considered; and to give us such further directions as may satisfy our doubts.
St. James's, Nov. 14.
you transmitted to me last night, a copy of which you put into my hands this morning, relative to the difficulties you are under, respecting the execution of Doyle and Valline, and his Majesty has been graciously pleased to respite the exe. cution for a week. As upon the most mature deliberation and inquiry which the time hath permitted, you are advised that the sentence pronounced by the court is your warrant for execution, to which you must look, and that you shall not be justifiable in departing from it, I am commanded to signify to you his Majesty's pleasure, that you transmit to me, for his Majesty's information, the opinion or opinions which you have taken on this occasion, that his majesty may be the better enabled to give you such further directions as may satisfy your doubts according to your ree guest.
Nov. 15, 1769. We desire your lordship to express our thankful acknowledgment of his Majesty's great goodness in graciously condescending to our request, and permitting us to lay before bis Majesty the reason which induced us to doubt of the le. gality of the Recorder's directions relative to the execution of Doyle and Valline.
And first, my lord, we suppose it is agreed by all, that
the judgment pronounced is our warrant for execution to which we must look : every execution which is not pursuant to the judgment is unwarrantable: the Sheriff is to pursue the sentence of the court : if he varies from the judge ment it has been held murder: and the judgment pronounced on Doyle and Valline is, that they be carried to the usual place of execution.
2. The King cannot by his prerogative vary the execution, so as to aggravate the punishment beyond the intention of the law : and the ends of public justice are effectually answered if the offender suffer death, the ultimum supplicium, without any circumstances of infamy or rigour which the judgment doth not import. The King, undoubtedly, can wholly pardon the oftender, or he can mitigate his punishment with regard to the pain or infamy of it: the mercy of the crown is not bounded, but it cannot go beyond the letter of the law in point of rigour; for the law proceedeth in both cases with a perfect uniformity of sentiment and motive. The same benignity of the law, which hath left the prerogative free and unconfined in one case, hath set bounds to it in the other. Now, my lord, it will not be said that the present alteration is, or is intended as a initigation of the judgment pronounced. To force in a manner the wives and children of the unhappy sufferers, to be spectators of the infamous death of their husbands and fathers, by executing them as near as conveniently may be to their own houses, cannot be intended, nor will it be esteemed a matter of royal grace; nor is it granted at the prayer of the parties, or their friends. Custom may sometimes give a sanction to a practice founded in humanity, and not repugnant to any law of substantial justice. But we do not suppose that either memorial, usage, or custom, can be urged in behalf of this alteration; or if they could, that they would make it justifiable; because it would not be a practice founded in mercy; and undoubtedly, where that is not the case (perhaps even where it is) judicandum est legibus non exemplis.
3. Our doubts, my lord, are still farther increased, and become more important, when we consider the consequences to which an admission of this power would lead us: If the crown can in one instance, contrary to the sentence, appoint a different place of execution, it may in all: if it can change the usual place of execution to Bethnel-Green, it may to Newgate-street, or even to Newgate itself; and thus our boasted usage of public execution (not less neces. sary to the satisfaction and security of the subject, than public trial,) may make way for private execution, and for all those dreadful consequences with which private executions are attended, in every country where they have been introduced.
4. Had this power of alteration been in the crown,(which we humbly conceive not to be the case,) yet we imagine, that his Majesty's pleasure has not been properly notified to us; and that the Recorder's authority alone would not be "sufficient to justify us for acting in consequence of it, for departing from the sentence pronounced by the court.
For these reasons, and for those contained in the opinion, which, since your lordship requests it, accompanies this, we humbly pray his Majesty either to suffer the sentence of the court to be executed at the usual place of execution, or to permit us to have the sanction of the judges' opinion on a matter of so great importance to ourselves, and, as we conceive, to the whole nation.
We are, &c.
Case, and Serjeant Glynn's opinion.
Case. A MAN convicted for felony without benefit of clergy, receives sentence in court, in the words following, viz. “ That you be taken hence to the place from whence you came and from thence to the usual place of execution, where you are to be hanged by the neck until you are dead.'
For the execution of the same man, a warrant is sent by the Recorder, signifying, “That it is his Majesty's pleasure that the said sentence be executed in the most convenient place near Bethnel-Green church, in the county of Middlesex.
Your opinion is desired, whether a Sheriff will by law be justified in executing such warrant of the Recorder.
Mr. Serjeant Glynn's opinion. I Confess a very great difficulty in answering this question. If the place is a material part of the sentence, the omission of which would vitiate the judgment, the execution must be conformable to it, and I know no authority that can justify a deviation from it. The king may pardon all or part of the sentence, but cannot alter it; the Sheriff's authority is the sentence, he is bound to look to it, and see