« ZurückWeiter »
it rightly executed. If the place is not material, then I should conceive it to be in the Sheriff's discretion, he being responsible for the fitness and propriety of the place. I know not how to account for the many
instances of execution in places different from the judgment, by command of the judges upon the circuit, or his Majesty in London and Middlesex, than as recommendations to the Sheriffs and intended indemnities to them against the consequences of departing from ancient usage. There are certain cases in which the Sheriffs must disobey such commands, viz. if the crown commanded an execution in a private room or a church, &c. Though I am not determined in my judgment with respect to the materiality of the place in the sentence, I have no doubt of the conclusion that must follow from either proposition : if it is material, no power can change it; if it is not material, the Sheriff is entrusted with the execution of the sentence, and must have it in his power to judge of the place. I should advise the Sheriffs to represent to his Majesty the doubts conceived by them; the more so as I cannot but doubt of the propriety of signifying his Majesty's pleasure through the Recorder; being much inclined io think that the Sheriffs cannot in any case be justified but by the commands of the King, or the court, directed to them. Nov. 13, 1769.
Respite for a fortnight. Nov. 23, The Sheriffs received the following letter from the Right Hon. the Lord Chancellor.
GENTLEMEN, Lincoln-Inn-Fields, Nov. 13, 1769. I have the honour to send you herewith inclosed a copy of the case and question referred, by his Majesty's command, to the twelve judges, and hope the case is so stated as to bring the point upon which your doubts have been conceived, fully and completely before their lordships. I have this day laid the case before my lords the judges, who will return their answer as soon as they have considered and formed their opinion upon the same.
I have, &c.
Case referred to the Judges. John Doyle and John Valline were convicted at the last sessions of gaol delivery for the county of Middlesex, at the Old Bailey, of felony without benefit of the clergy, and received sentence of death.
The sentence pronounced in court, by the Recorder of London, was as follows :-“That you the several prisoners at the bar, 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.”
His Majesty was afterwards pleased to signify his pleasure to the Recorder, by his sign manual, that he should by his warrant direct the prisoners to be executed in the most convenient place near Bethnel-Green church, in the county of Middlesex ; whereupon the Recorder of London, issued his warrant in the following words :London
To the Sheriffs of the city of Lonand
don, and to the Sheriffs of the counMiddlesex. ty of Middlesex, &c.
Whereas at the sessions of the general gaol delivery of Newgate, for the city of London, and county of Middlesex, holden at Justice Hall, in the Old Bailey, on Wednesday, the 18th day of Oct. last, John Doyle and John Valline received sentence of death for their offence in the indictment against them mentioned : and whereas it hath been duly signified to me 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 : now it is hereby ordered, that the execution of the said sentence be made and done upon them, the said John Doyle and John Valline, on Wednesday, the 15th day of this instant month of November, at the most convenient place near Bethnel-Green church, in the said county of Middlesex.
Given under my hand and seal,
JAMES EYRE, Recorder.
The Sheriffs of London have entertained a doubt whether it is lawful for them to execute the said convicts, according
to the tenor of the above warrant, at the most convenient place near Bethnel-Green church, in the county of Mid. dlesex.
Therefore, the question is, whether it is lawful for them to execute the said convicts, according to the tenor of the ahove warrant, at the most convenient place near BethnelGreen church, in the county of Middlesex?
The Sheriffs' letter to the Lord Chancellor.
Nov. 24, 1769. We return your lordship many thanks for your letter, and for the copy of a case which accompanied it.
We are sorry to say, that the case is not so stated as to bring the points upon which our doubts are conceived, fully and completely before the judges. My lord, it is so far from being full and complete that it is not the same case. It differs essentially as we conceive, from the case which we delivered to Lord Weymouth, to be laid before his Majesty; and on which his lordship taught us to expect such farther directions as might satisfy our doubts.
It is not the same case :-For the copy inclosed by your lordship states his majesty's pleasure signified by a sign manual. (Note, this sign manual is not given, as the sentence and the Recorder's warrant are, for the judges' consideration.)
His Majesty's pleasure, my lord, signified by a sign manuai, makes no part of our case. To us there is no such sign manual. De non apparentibus et non existentibus eadem est ratio. This difference is material ; for on it is founded our fourth objection in the case, as stated by us.
It is not full and complete :-For the copy inclosed by your lordship concludes that the question is, whether it is lawful for the Sheriffs to execute the said convicts, according to the tenor of the Recorder's warrant, at the most convenient place near Bethnel-Green church, in the county of Middlesex. The question in our case is not only whether it is lawful, but also whether it is necessary; not only whether the Sheriffs lawfully may, but whether by law they must execute according to the tenor of the Recorder's warrant.
The case, of which your lordship has favoured us with a copy, consists of four parts.
The sentence of the court.
A conclusion,-which is not our question.
The case and question, therefore, referred by his Majesty's command to the twelve judges, is neither our case nor our question.
A naked opinion of the judges, on the case referred to them, will not satisfy our doubts, as to that due execution of our office, to which we are bound by law and oath. For by stating, as part of the case, the sign manual (of which we know nothing) the judges perhaps may not confine their considerations to the validity of the Recorder's warrant, which yet is the only one we have for execution, except the sentence of the court, with which it militates; and by concluding that the question is, whether it is lawful for the Sheriffs to execute the convicts according to the tenor of the Recorder's warrant, our questions may chance to receive no answer; for should their lordships, the judges, he of opinion that these words—the usual place of executionare not a material part of the sentence : and should they, observing the discretion which is still left to the Sheriffs, even in the Recorder's warrant; and that if the discretion is in the crown, and not in the Sheriffs, it cannot be delegated by the crown to the Sheriffs ; should the judges upon this or any other account, be farther of opinion that the place is left to the discretion of the Sheriffs, making themselves responsible for the fitness of the place; their lordships might then answer the question referred to them in the affirmative; and might thereby seem to vest the dis, cretion in the crown, whilst the very reason of their answer would be, that they judged it to be in the Sheriffs.
For these, and many other reasons, my lord, we wish humbly to intreat his Majesty, that the same method may. be followed with us, as was practised in Sir Edward Coke's case, who, after having been chief-justice, was appointed Sheriff of the county of Buckingham, and taking four exceptions to the oath proposed to him, both his exceptions and his reasons were, by the Lord Keeper, laid before all the judges, and received each a separate answer with their reasons.
In the same manner we pray, that this letter, and our objections, as we delivered these to the Secretary of State, may be laid before the judges, that so our case, and our questions, may receive an answer, since it is intended to satisfy our doubts. We are, my Lord, &c.
The Lord Chancellor's answer. GENTLEMEN, I RECEIVED your letter at Westminster this morning, and have transmitted it to Lord Weymouth, and am inclined to believe, that when you have seen the judges' opinion that was sent to me last night, and which I have desired Lord Weymouth to send you a copy of, you will be satisfied that the Recorder's warrant is a lawful authority for you to see execution done, according to the tenor of the warrant.
If the warrant is a lawful authority, I conceive that you will be under a necessity to obey it. I will only add, that your reasons and petition, together with Serjeant Glynn's opinion, were transmitted by me to Lord Mansfield, and, I dare say, have been perused by the judges, though they make no part of the case.
After you have perused the judges' opinion, I should be obliged to you if you would state your own case, with your question, which will be taken into consideration if you remain dissatisfied, and it should appear that any material fact has been stated that ought to be omitted, or any thing omitted that ought to have been stated, or if the question has been defectively or improperly drawn.
On Friday, Dec. 1, the Sheriffs received the following letter from Lord Weymouth. GENTLEMEN,
St. James's, Nov. 30. His Majesty having thought proper to take the judges' opinion upon the difficulties you were under with regard to the execution of Doyle and Valline, in order to satisty your doubts upon that head I am commanded to acquaint you, that the judges are of opinion,“ that the time and place of execution, are, in law, no part of the judgment, and that the Recorder's warrant was a lawful authority to the Sheriffs, as to the time and place of execution.”
From Lord Weymouth to the Recorder.
St. James's, Nov. 30, 1769. The Sheriffs having expressed doubts with regard to the execution of Doyle and Valline, it was thought proper to