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384 TRIAL OF JOHN W. WEBSTER.
hanged by the neck until he be dead." The correctness of this judgment
depends upon the construction of two statutes,-Rev. Stat. ch. 125, § 1;
and ch. 139, § 13. If the Court is obliged to look only to the first statute
cited, it contains too much, because it excludes one place within which
by law the execution may and should take place. If both statutes are
to be regarded, the judgment does not contain all that it should, inas-
much as it does not designate the place of execution. I submit, that both
statutes are to be regarded, and that it is incumbent upon the Court to
designate the place of execution. It is apparent, from the Commis-
gioners' Report of the Revised Statutes, that they contemplated and
provided, in ch. 139, § 11, ( from which the section 13 of the statutes
was taken,) that the Executive or the sheriff should designate the
place of execution.
The legislature did not adopt the provisions of the Commissioners.
The difference is so great as to authorize and require the inference,
that the legislature intended to entrust, within certain statute limits,
the power of designating the place of execution with this Court. This
view cannot be resisted by saying that there are only two places within
which the execution can take place, and a rejection of one is the selection
of the other. Such implication cannot be allowed. The judgment of
this Court must be certain. Neither is it clear that the law points
out only two places. The house of correction is by statute designated
a prison. I do not say it is a "prison," within the meaning of section
13, ch. 139: I say it may be; and the sheriff is not charged with the
duty of deciding this question.
Again, the judgment is defective, because it does not adjudge that
the execution shall take place at such time as the Executive may
appoint. After judgment is pronounced by this Court, an authenticated
copy, under seal, must, by law, be delivered to the sheriff; it is his duty
to deliver it to the Executive, and subsequently, with the warrant of
the Executive, under the great seal, it goes to the sheriff. If the record,
which is in the first instance delivered to the sheriff from the Court,
does not decree the execution at such time as the Executive may direct,
the sheriff may not wait for the action of the Executive. It is no answer
to say that the sheriff is bound to know the law and his duty; and if
he disregard them, that he does so at his peril. The safety and rights
of the prisoner are not dependent upon the knowledge or fidelity of
the sheriff. His rights are intrusted to this Court; and he has a right
to repose here for his security. If the judgment is not such as the law
requires, it cannot be sustained, but is void. Hopkins v. Commonwealth,
3 Met. 468; Hutchinson v. Commonwealth, 4 Met. 359; Reg. v. Hartnett,
Jebb's Crown Cases, 301.
In the case last cited from the Irish Reports, the statute under
which the proceedings were had, directed that a party convict, after
execution, should be buried within certain prescribed limits. The
judgment omitted this direction of the statute, and was thereupon
reversed. This opinion was approved by Lord Denman, chief justice
of England.
It will be said, in reply, that these objections are mere matters of
form and unimportant. I do not so regard them. But grant that they
are mere forms. They are forms established by law, obligatory upo71
this Court. They are forms designed to protect the innocent as well
as the guilty. If they are to be disregarded to-day, the whole structure
of the law itself may be overturned to-morrow.
Mr. Bemis, for the Commonwealth.
At the request of the Attorney General, I shall not confine myself,
in opening the argument on behalf of the Commonwealth, to the
statement of new matter in avoidence of the grounds urged on behalf
of the petitioner, (of which, indeed, there is little necessity,) but shall
proceed at once to reply to those grounds in detail.'
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