Atrocious Judges : Lives of Judges Infamous as Tools of Tyrants and Instruments of Oppression. Baron John Campbell Campbell
was proposed, that she should be sentenced by the lord high steward to be “burnt or beheaded at the king’s pleasure;” and the opinion of the judges was asked, “whether such a sentence could be lawfully pronounced.”
Fitzjames, C. J.—“My lords, neither myself nor any of my learned brothers have ever known or found in the records, or read in the books, or known or heard of, a sentence of death in the alternative or disjunctive, and incline to think that it would be bad for uncertainty. The law delights in certainty. Where a choice is given, by what means is the choice to be exercised? And if the sheriff receives no special directions, what is he to do? Is sentence to be stayed till special directions are given by the king? and if no special directions are given, is the prisoner, being attainted, to escape all punishment? Prudent antiquity advises you stare super antiquas vias; and that which is without precedent is without safety.”
After due deliberation, it was held that an absolute sentence of beheading would be lawful, and it was pronounced accordingly; the court being greatly comforted by recollecting that no writ of error lay, and that their judgment could not be reversed.
Fitzjames died in the year 1539, before this judgment served as a precedent for that upon the unfortunate Queen Catharine Howard; and he was much missed when the bloody statute of the Six Articles brought so many, both of the old and of the reformed faith, on capital charges, before the Court of King’s Bench.
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