(Vol. iv., pp. 191. 243. 284.)
The pathetic story of a person sentenced to death for sheep-stealing,
winning the heart of the gaoler by a long course of good conduct, and
executed at last on the "death-warrant" being found in the office, is
utterly apocryphal. There has not been such a thing as a death-warrant
in England for centuries, except in London and Middlesex (where the
recorder communicated the pleasure of the crown to _spare_ certain
prisoners, and leave others to their fate, in an instrument improperly
so called), and in the special case referred to hereafter. It was
necessary, when sentence was pronounced by Commissioners of Oyer and
Terminer, that a precept under their hands and seals should be made out;
but in the case of Commissioners of Gaol Delivery the entry on record of
the judgement of the court is sufficient; and though a calendar is now
made out, and delivered to the sheriff, specifying the several
sentences or acquittals of all the prisoners in gaol, yet it is not
necessary. Lord Hale says:
"_Rolle_ would never subscribe any such calendar, but would
command the sheriff openly in court to take notice of the
judgments and orders of what kind soever, and command the sheriff
to execute them at his peril."
And, until a few years ago (when the law requiring murderers to be
executed the day next but one after sentence was repealed), murderers
were executed on verbal authority only, as no calendar was made out
until the close of the assizes, some time after the execution. The
special case above referred to is, when a person was tried by the Court
of Peers before the Lord High Steward, in which case that officer issued
a precept for execution. But if the trial be in parliament, a writ for
execution issues under the Great Seal, as in the case of Lord William
Russell.
Having demolished one story, I feel bound to give you another.
The Crown never directs execution, but respites it either to a day
fixed, or during her Majesty's pleasure, which last is what is commonly
called a _reprieve_. A late learned Baron is said to have respited an
unlucky criminal on whose fate he hesitated, once, twice, thrice, till,
having lost his reckoning, he wrote to this effect:
"I do not know whether John Smith's respite has expired; if it
has, it is no matter; if not, let the execution be further
respited until the ---- day of ---- next."