From John Thomson Mason
April 12th 1802
Upon examining the authorities I find it settled, at Common Law,
2. That the Court having power to give Judgment of death, necessarily possesses the power of awarding execution 2 Hal. P.C. 406.
3. That formerly the Judge of the Court who pronounced Sentence issued a precept under his hand and Seal ordering execution to be done, without fixing either day or place (with an exception as to two Courts) 4. Blac. Com. 403. appen. no 3. 2 Hal. P.C. 409.
4. That the law authorizes, And the practice for a long series of time has been for, the Judge to award execution by simply signing a Roll of the prisoners convicted with the Sentence pronounced against each written in the margin opposite to his name, without issuing any writ or precept 2 Hawk. 657. 2 Hal. P.C. 409. 4 Blac. Com. 403.
The Statute of the 25. Geo. 2. c. 37 makes the day of execution and the disposition of the body when executed a part of the Judgment of the Court upon a conviction for murder. But that Statute never was in force either in Virginia or Maryland. Thus at Common Law we find the practice settled as to the mode of awarding executions in Capital cases. As to the time of execution the practice tho’ settled is variant in different Courts, in some the day is fixed by the Court, in others it is left discretionary with the Executive officers of the Courts. I presume upon principle it is not important which fixes the day, in either case the execution must be done in a reasonable time. That the Courts who gave Judgment should award execution, is I presume founded on the principle (no doubt a sound one) that the power of Judging necessarily draws after it, as incident thereto, the power of inforcing the Judgment given.
From whence the idea arose of awarding a death warrant to inforce the execution of a Judgment given by a Court it is difficult to conjecture.
Had the case of McGirk happened in the County of Alexandria where the Common Law principle prevails, I presume the Authority of the above cases would have directed the mode of proceeding, except that the Court, not in their Judgment, but upon their records, would have directed the day of execution; the law of Virginia which allows the convict thirty days to live after sentence passed, if it does not make it necessary that the Court should fix the day of execution, has probably introduced the practice of doing so. Since I came to the bar such has been the practice in Virginia, I beleive no death warrant ever issued, I think none was necessary, I think none would be necessary in the County of Alexandria.
What has been the practice in the Circuit Courts of the United States under the laws of Congress I do not know as I have never attended one of those Courts. By the laws of Congress the Circuit Courts have cognizance of the Offence of Murder committed in a place under the exclusive jurisdiction of the United States, the punishment for such an offence is ascertained to be death, and the mode of inflicting the punishment of death is ascertained to be by hanging.1 If the principle be a sound one that the right to judge carries with it the power of inforcing an execution of that Judgment, without resorting to the authority of cases adjudged as explanatory of the principles of the Common Law, it would follow as a necessary consequence that the Court which passes sentence of death, have the power, and are bound to award execution on that Judgment. Upon convictions then in a Circuit Court of the United States a death warrant will be unnecessary.
In what manner a Circuit Court ought to award execution is a subject worthy of consideration. I cannot discover that any act of Congress give directions on this subject. The 14. Sec. of the act of 1790. c. 20 Seems not I think to imbrace the case, because speaking of writs known and used at Common law, it can hardly be supposed that Congress intended to extend the provision to a case where writs had never been issued, and were in law deemed necessary. If the law then has prescribed no form of proceeding, by which the Court shall effect an object, Which it makes it their duty to effect, it follows that the Court themselves must devise the mode of their proceeding to effect that object. If the Judges shall not think themselves justifiable in adopting the mode practiced in England of issuing a precept under their hands and Seals, the prisoner McGirk must I presume remain in prison until the meeting of the next Court
What the practice in the State of Maryland was previous to the act of 1795, I cannot from any observation of my own say, I have understood that it was always customary for the Governor to issue death warrants, I have however searched dilligently into the old laws of Maryland upon that subject, and can find no legislative provision authorizing the practice. If such was their mode of proceeding, I am at a loss to know from whence they derived it.
By the act of 1795. ch. 82 the Governor, whenever sentence of death is pronounced against any criminal by the Judgment of any Court of the State of Maryland, is obliged to issue a death warrant. And by the act of Congress passed in 1801. c. 86. The laws of Maryland as they existed at the time of the passage of that law are declared to be in force in the County of Washington. But I presume this must be taken to mean such laws of the state of Maryland as in their nature could be made to operate here, of such discription this law is not, and therefore I presume deserves no weight in the consideration of the question. The same law of Congress in the 3d Sec. gives to the Circuit Court of the District of Columbia all the powers which by Law are vested in the Circuit Courts of the United States. Whether therefore the Court setting here be considered as having in this respect Common Law powers, or the powers vested in the Circuit Courts of the United States, still it is their duty to award execution and a death warrant is not necessary.
The Chief Justice and Judge Cranch have been Maryland practitioners, and supposing that the power of directing execution vested with the Executive they have fixed no time and taken no measures to have their Judgment executed. I was, at the moment they were about to proceed to pass sentence, asked by the Court where the power of directing execution rested, impressed I suppose in the same manner that the majority of the Court were, with the recollection of the Maryland practice, I joined them in supposing it rested with the Executive, upon examining the subject I am satisfied I was wrong.
I have the Honor to be with great respect your Obedt Servt
John T. Mason
RC (DLC); addressed: “The President”; endorsed by TJ as received 12 Apr. on “Mc.Girk’s case” and so recorded in SJL.
4. BLAC. COM. 404: Mason cited a 1773 Oxford edition of Blackstone’s Commentaries. The section on executions that fell on pages 403–4 of the fourth volume of that edition was on pages 396–7 in the 1770 Oxford edition cited by TJ on 11 Apr.
1 HAL. P.C. 368: Sir Matthew Hale, Pleas of the Crown.
2 HAWK. 658: William Hawkins, Treatise of the Pleas of the Crown.
APPEN. NO 3: in the edition of Blackstone’s Commentaries that Mason consulted, one appendix presented an example of an “Entry of a Trial instanter in the Court of King’s Bench, upon a collateral Issue; and Rule of Court for Execution thereon,” which included an order for an execution (William Blackstone, Commentaries on the Laws of England, 5th ed., 4 vols. [Oxford, 1773], 4: appendix, v-vi).
STATUTE OF THE 25. GEO. 2. c. 37: “An Act for better preventing the horrid Crime of Murder,” passed by Parliament in 1752 (The Statutes at Large, From the Twentieth Year … to the Thirtieth Year of the Reign of King George the Second [London, 1769], 440–1).
One section of the LAW OF VIRGINIA that established the state’s General Court in 1777 allowed defendants to have legal counsel and required an interval of at least one calendar month between the judgment of a sentence of death and the execution of the prisoner (William Waller Hening, ed., The Statutes at Large; Being a Collection of All the Laws of Virginia, 13 vols. [Richmond, 1809–23], 9:417).
The April 1790 act “for the Punishment of certain Crimes” that TJ cited in his memorandum to Levi Lincoln and Mason on 11 Apr. prescribed punishment for murders committed in the EXCLUSIVE JURISDICTION of the United States (U.S. Statutes at Large description begins Richard Peters, ed., The Public Statutes at Large of the United States … 1789 to March 3, 1845, Boston, 1855–56, 8 vols. description ends , 1:113).
14. SEC. OF THE ACT OF 1790: the “Act to establish the Judicial Courts of the United States,” approved 24 Sep. 1789. For that act, the 1795 LAW OF THE STATE OF MARYLAND, and the 1801 federal law “concerning the District of Columbia,” see TJ to Lincoln and Mason, 11 Apr. The 1801 statute created the circuit court for the District of Columbia and gave it the powers VESTED IN THE CIRCUIT COURTS of the United States (U.S. Statutes at Large description begins Richard Peters, ed., The Public Statutes at Large of the United States … 1789 to March 3, 1845, Boston, 1855–56, 8 vols. description ends , 1:73–4; 2:105).
CHIEF JUSTICE: William Kilty.
1. MS: “haning.”