relative to the difficulties you are under refpecting the execution of Doyle and Valline; and his majefty has been graciously pleased to refpite the execution for a week.-As, upon the moft mature deliberation and enquiry which the time has permitted, you are advised that the fentence pronounced by the court is your warrant for execution to which you must look, and that you fhall not be juftifiable in departing from it; I am commanded to fignify to you his majesty's pleasure, that you tranfmit to me, for his majefty's information, the opinion or opinions which you have taken on this occafion, that his majefty may be the better enabled to give you fuch further directions as may fatisfy your doubts, according to your request. I am, gentlemen, Your moft obedient fervant,

WEYMOUTH

Letter from the fheriffs to lord Weymouth.

My lord, WE defire your lordship to exprefs our thankful acknowledgment of his majesty's great good nefs, in graciously condefcending to our requeft, and permitting us to lay before his majefty the reasons which induced us to doubt of the legality of the recorder's directions relative to the execution of Doyle and Valline.

And first, my lord, we fuppofe it is agreed by all, that the judgment pronounced is our warrant for execution, to which we muft look: every execution, which is not pur fuant to the judgment, is unwar rantable: the sheriff is to purfue the fentence of the court: if he varies from the judgement, it has been held murder; and the judge

2

ment pronounced or Doyle and Valline is, that they be carried to the ufual place of execution.

:

2. The king cannot by his prerogative vary the execution, fo as to aggravate the punishmentbeyond the intention of the law and the ends of public justice are effectually answered, if the offender fuffereth death, the ultimum fupplicium, without any circumstances of infamy or rigour,which the judgment doth not import. The king undoubtedly can wholly pardon the offender, 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 cafes with a perfect uniformity of fentiment and motive. The fame benignity of the law, which hath left the prerogative free and unconfined in one cafe, hath fet bounds to it in the other. Now, my lord, it will not be faid, that the prefent alteration is, or is intended as, a mitigation of the judgment pronounced. To force, in a manner, the wives and children of the unhappy fufferers to be fpectators 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 efteemed, a matter of royal grace; nor is it granted at the prayer of the parties or their friends. Custom may fometimes give a fanction to a practice founded in hu manity, and not repugnant to any law of fubftantial justice. But we donot fuppofe that either immemo rial ufage or custom can be urged in behalf of this alteration; or, if they could, that they would make it juftifiable because it would not be a [N 4]

practice

practice founded in mercy: and undoubtedly, where that is not the cafe (perhaps even where it is) judicium eft legibus, non exemplis.

3. Our doubts, my lord, are still farther increased, and become more important, when we confider the confequences to which an admiffion of this power would lead us. If the crown can in one instance, contrary to the fentence, appoint a different place of execution, it may in all; if it can change the ufual place of execution to Bethnal-green, it may to Newgate-street, or even to Newgate itfelf; and thus our boast ed ufage of public execution (not lefs neceffary to the fatisfaction and fecurity of the fubject than public trial) may make way for private execution, and for all thofe dreadful confequences with which private executions are attended in every country where they have been introduced.

4. Had the power of alteration been in the crown (which we humbly conceive not to be the cafe) yet we imagine that his majefty's pleafure has not been properly notified to us; and that the recorder's authority alone would not be fufficient to justify us for acting in confequence of it, and for departing from the fentence pronounced by the court.

For these reafons, and for thofe contained in the opinion, which, fince your lordship requefts it, accompanies this; we humbly pray his majesty either to suffer the fentence of the court to be executed at the ufual place of execution, or permit us to have the fanction of the judges opinion on a matter of fo great importance to ourfelves, and as we conceive, to the whole nation.

A

Man convicted for felony without benefit of clergy, received fentence in the court in the words following, viz. "That you be taken hence to the place from whence you came, aud 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 this fame man, the following is fent by the recorder:

[Here follows the recorder's warrant verbatim, as inferted above, except the omiffion of the days of fentence and execution, and the convicts names.]

Your opinion is defired, whether a fheriff will by law be justified in executing fuch a warrant of the resorder.

I

Mr. ferjeant Glynn's opinion, Confefs a very great difficulty in anfwering this question. If the placeis a material part of thefentence, the omiffion 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 fentence, but cannot alter it; the fheriff's authority is the fentence, he is bound to look to it, and fee it rightly executed. If the place is not material, then I fhould conceive it to be in the fheriffs difcretion, he being refponfible for the fitnefs and propriety of the place. I know not how to account for the

many

many inftances of execution in places different from the judgment, by command of the judges upon the circuit, or his majefty in London and Middlesex, than as recommendations to the sheriffs, and intended indemnities to them against the confequences of departing from ancient ufage. There are certain cafes in which the theriffs muft difobey fuch commands, viz. If the crown commanded an execution in a private room or a church, &c. Though I am not determined in my judgement with respect to the materiality of the place in the fentence, I have no doubt of the conclufion that must follow from either propofition: if it is material, no power can change it; if it is not material, the fheriff is intrufted with the execution of the fentence, and must have it in his power to judge of the place. Ifhould advise the sheriffs to reprefent to his majefty the doubts conceived by them: the more fo, as I cannot but doubt of the propriety of fignifying his majesty's pleafure through the recorder, being much inclined to think that the fheriffs cannot in any cafe be juftified but by the commands of the king, or the court, directed to them. Nov. 13, 1769.

JOHN GLYNN,

The opinion of Mr. ferjeant Glynn is fucceeded by a letter from lord Weymouth to the recorder, containing his majefty's commands for refpiting Doyle and Valline a fortnight longer, after the expiration of the term of the former refpite.

On November 23, the theriff received a letter from the lord chancellor, in which was inclofed a copy of the cafe and question referred to

Received your letter at Westmin

fter this morning, and have tranfmitted it to lord Weymouth; and am inclined to believe, that when you have feen the judges opinion that was fent to me last night, and which I have defired lord Weymouth to fend you a copy of, you you will be fatisfied that the recorder's warrant is a lawful authority for you to fee execution done according to the tenor of the warrant.

If the warrant is a lawful autho

rity, I conceive that you will be under a neceffity to obey it. I will only add, that your reasons and petition, together with ferjeant Glynn's opinion, were tranfmitted by me to lord Mansfield, and I dare fay have been perufed by the judges, though they make no part of the cafe.

After you have perused the judges, opinion, I fhould be obliged to you if you would ftate your own cafe with your queftion, which will be taken into confideration, if you remain diffatisfied, and it should appear that any material fa&t 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.

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On Friday, the first of December, the sheriffs received the following letter from lord Weymouth.

St. James's, November 30, 1769. Gentlemen,

HIS majefty 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 fatisfy 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."

I am, gentlemen, Your moft obedient humble fervant, WEYMOUTH.

To the fheriffs of London and Middlefex.

On the 2d of December the fheriffs fent a letter to the lord chancellor, in which they mention, that by lord Weymouth's letter their doubts are over-ruled without being fatisfied. The fame day they wrote thus to lord Weymouth;

My lord, London, Dec. 2. THE opinion of the judges, as conveyed to us by your lordfhip, hath over-ruled our doubts; and we must request your lordship to prefent to his majefty our moft humble thanks for his majefty's royal condefcenfion, in directing

our cafe to be laid before the

judges.

We are, my lord,

Your lordship's moit obedient humble fervants,

JAMES TOWNSEND. JOHN SAWBRIDGE.

John Doyle and John Valline were executed at Bethnal-green, on Wednesday, Dec. 8, 1769.

The next fentence which Mr. recorder of London paffed, was on Monday the eleventh of December, when he pronounced the following words only:

"You the feveral prisoners at the bar fhall be severally hanged by the neck till you are dead; and may God Almighty be merciful to your fouls."

Thus ended this affair; from the proceedings in which, this writer thinks it is evident, that there is a fettled plan, a wicked confpiracy, to expofe and fet afide the civil power of this country.

It is pretended that the civil power is too weak to keep the peace in the neighbourhood of Spitalfields; a barrack has been therefore built, and foldiers have regularly mounted guard there for a long time paft; they have likewise been employed as conftables, to apprehend offenders; for which purpose, and not to quell a riot, they were firft fent thither. Yet, after every method had been used, ftill more to exafperate and increase thofe unhappy people, the civil power is ordered, out of the common course, into that very neighbourhood, to execute the criminals it could not apprehend.

The fheriffs faw plainly the fnare, and the wickednefs of those who laid it for them; but being as folicitous to preferve, as the others to

deftroy

I fhall be much obliged to your lordship, if you will be pleafed to inform me, whether this unufual appearance of foldiers marching through the heart of the city, with drums beating and fifes playing, was occafioned by the order of your lordship, or of any other commiffioned officer.

Ever fince I have had the honour of being the firft magiftrate of this metropolis, I have not heard of any riot or diforder within my jurifdiction and I truft, if any tumult fhould be excited by evildifpofed perfons, the force of the civil power will be fufficient to fubdue all disturbances, and bring the

Your lordship defires I will inform you whether this was occafioned by me, or the order of any commiffioned officer."

The detachment from the footguards, relieved every twenty-four hours, which has for fome time pait done duty in Spital-fields, at the requifition of the worthy magiftrates acting there, in order to fecure the public peace, went by order from hence; but no particular directions were given as to the manner in which they fhould march, which was left, as ufual, to the difcretion of the commanding officer.

I am very clear in opinion, that no troops should march through the city of London in the manner defcribed by your lordship (though I find, on enquiry, it is fometimes done) without previous notice given to the lord mayor; and I shall take

care