EXECUTION, in Law, the completing or finishing some act, as of judgment, deed, &c. and it usually signifies the obtaining possession of any thing recovered by judgment of law.
Sir Edward Coke observes, that there are two sorts of executions: the one final; and the other a quousque, that tends to an end. An execution final is that which makes money of the defendant's goods, or extends to his land and delivers them to the plaintiff, who accepts the same in satisfaction; and this is the end of the suit, and the whole that the king's writ requires to be done. The writ of execution with a quousque, though it tends to an end, yet is not final, as in the case capias ad satisfac. where the defendant's body is to be taken, in order that the plaintiff may be satisfied for his debt. See CAPIAS.
Executions are either in personal, real, or mixed actions. In a personal action, the execution may be made three ways, viz. by the writs of capias ad satisfacendam, against the body of the defendant; fieri facias, against his goods; or elegit, against his lands. See FIERI FACIAS and ELEGIT.
In a real and mixed action, the execution is by writ of habere facias sasnam, and habere possessionem. Writs of execution bind the property of goods only from the time of delivery of the writ to the sheriff; but the land is bound from the day of the judgment obtained: and here the sale of any goods for valuable consideration, after a judgment, and before the execution awarded, will be good. It is otherwise as to lands, of which execution may be made, even on a purchase after the judgment, though the defendant sell such land before execution. Likewise, sheriffs may deliver in all the lands whereof others shall be seized in trust for him against whom execution is had on a judgment, &c.
When any judgment is signed, the execution may be taken out immediately thereon; but if it be not issued within a year and a day after, where there is no fault.
Execution. fault in the defendant, as in the case of an injunction, writ of error, &c. there must be a seire factas, to revive the judgment; though, if the plaintiff sues out any writ of execution within the year, he may continue it after the year is expired. After judgment against the defendant, in an action wherein special bail is given, the plaintiff is at liberty to have execution against such defendant, or against his bail: but this is understood where the defendant does not render himself, according to law, in safeguard of the bail; and execution may not regularly be sued forth against a bail, till a default is returned against the principal: also if the plaintiff takes the bail, he shall never take the principal. It is held that an execution may be executed after the death of the defendant: for his executor, being privy thereto, is liable, as well as the testator. The execution is an entire thing, so that he who begins must end it; therefore, a new sheriff may distrain an old one, to sell the goods seized on a distringas, and to bring the money into court.
otherwise, the time and place of execution are by law Execution, no part of the judgment. It has been well observed, that it is of great importance that the punishment should follow the crime as early as possible; that the prospect of gratification or advantage, which tempts a man to commit the crime, should instantly awake the attendant idea of punishment. Delay of execution serves only to separate these ideas; and then the execution itself affects the minds of the spectators rather as a terrible sight, than as the necessary consequence of transgression.
The sheriff cannot alter the manner of the execution, by substituting one death for another, without being guilty of felony himself. It is held also by Sir Edward Coke and Sir Matthew Hale, that even the king cannot change the punishment of the law, by altering the hanging or burning into beheading; though, when beheading is part of the sentence, the king may remit the rest. And, notwithstanding some examples to the contrary, Sir Edward Coke strongly maintains, that judicandum est legibus, non exemplis. But others have thought, and more justly, that this prerogative, being founded in mercy, and immemorially exercised by the crown, is part of the common law. For hitherto, in every instance, all these exchanges have been for more merciful kinds of death; and how far this may also fall within the king's power of granting conditional pardons (viz. by remitting a severe kind of death, on condition that the criminal submits to a milder) is a matter that may bear consideration. It is observable, that when Lord Stafford was executed for the popish plot in the reign of King Charles II. the then sheriffs of London, having received the king's writ for beheading him, petitioned the house of lords, for a command or order from their lordships, how the said judgment should be executed: for, he being prosecuted by impeachment, they entertained a notion (which is said to have been countenanced by Lord Russel), that the king could not pardon any part of the sentence. The lords resolved, that the scruples of the sheriffs were unnecessary; and declared, that the king's writ ought to be obeyed. Disappointed of raising a flame in that assembly, they immediately signified to the house of commons by one of their members, that they were not satisfied as to the powers of the said writ. That house took two days to consider of it; and then suddenly resolved, that the house was content that the sheriff do execute Lord Stafford by severing his head from his body. It is farther related, that when afterwards the same Lord Russel was condemned for high treason upon indictment, the king, while he remitted the ignominious part of the sentence, observed, "That his lordship would now find he was possessed of that prerogative, which in the case of Lord Stafford he had denied him." One can hardly determine (at this distance from those turbulent times), which most to disapprove of, the indecent and sanguinary zeal of the subject, or the cool and cruel sarcasm of the sovereign.
To conclude: It is clear, that if, upon judgment to be hanged by the neck till he is dead, the criminal be not thoroughly killed, but revives, the sheriff must hang him again. For the former hanging was no execution of the sentence; and, if a false tenderness were to be indulged in such cases, a multitude of collusions might ensue. Nay, even while abjurations were in force, such