
    Respublica v. Doan.
    
      Outlawry.
    
    Where a partj is outlawed by judicial proceedings, on his being brought into court, the practice is, to direct execution, by an award upon the roll.
    Aaron Doan, being attainted of a robbery in the county of Bucks, by process of outlaAvry, was brought before the court, on the 24th day of September 1784 ; and, after hearing his counsel upon several exceptions to the outlawry (which were all overruled), execution was awarded against him, on the 9th day of October. The following correspondence then took place between the Honorable the Supreme Executive Council, and the judges ; in the course of which several important points of law were stated and considered. 
    
    On the 22d of November 1784, the President and Supreme Executive Council addressed the following letter to the judges :
    Gentlemen : — We have perused, and attentively considered, the transcript of the record transmitted by you, of the attainder of Aaron Doan ; and as it appears to us a caso of a novel and extraordinary nature, which, being once established as a precedent, may greatly affect the lives, liberties and fortunes of the freemen of this commoirwealth, we cannot, consistently Avith our ideas of duty, issue a warrant for his execution, until the doubts and difficulties that present themselves to our view are removed.
    To take away the life of a man, Avithout a fair and open trial, upon an implication of guilt, has ever been regarded as so dangerous a practice, that the law requires all the proceedings in such a mode of putting to death, to be “ exceedingly nice and circumstantial,” as Black-stone says; and “ any single minute point omitted, or misconducted, renders the whole outlawry illegal, and it may be reversed ; upon Avhich reversal, the party accused is admitted to plead to, and defend himself against the indictment.” 4 Black. Com. 815.
    This liberality of spirit seems to have advanced with the improvement of the human mind, and of those latvs from which our own are composed : for, by the statute of 4 & 5 Wm. & M., c. 22, Avisely and benevolently reciting, that,“ it is agreeable to justice, that proceedings in outlawries in criminal cases, should be as publiu and notorious, as in civil causes, because the consequences to persona outlawed in criminal cases are more fatal, and dangerous to them, and their posterities, than in any other causes it was enacted, that, “ upon issuing an exigent, in a criminal case, there should issue a proclamation according to the form of the statute made in the one and thirtieth year ^ . of Queen Elizabeth,” &c. And the first mentioned statute was made L perpetual by the 7 & 8 Wm. III, c. 36.
    It is our desire to regulate our conduct by the just maxims, and generous principles, that have been established, for keeping under proper directions, and restraining within proper limitations, this menacing part of jurisprudence. We shall, therefore, be obliged, if you will be pleased to take the questions now proposed into your consideration, and to favor us with your answers.
    I. Whether the proceedings in this case are founded on common law, the act for the advancement of justice, or on any other, and what acts of assembly or of parliament ?
    II. Whether there have been any, and what modern instances, in England, prior to our Declaration of Independence, of persons being executed upon outlawry by judicial proceedings alone ?
    III. Whether there has ever been any, and what, instance in Pennsylvania, of a person being executed upon outlawry by judicial proceedings alone ?
    IV. Is such a mode of attainder compatible with the letter and spirit of the constitution of this state, which establishes, with such strong sanctions, the right of trial by jury ? See section the ninth of the Declaration of Rights —section the twenty-fifth of the Frame of Government, &c.
    V. What authorities and precedents are considered as most ajtplicable to the present case ?
    VI. If this outlawry is principally founded on the act for the advancement of justice, do not these words, “ attainted of the crime whereof he is so indicted or appealed as aforesaid, and from that time shall forfeit and lose all his lands and tenements, goods and chattels;” imply, by force of the copulative “ and,” that this forfeiture was the penalty designed to be incurred by such an outlawry; and may not the word “execution” in th<? following part of the clause, as it is connected with the word “ trial,” be reasonably applied to the other criminals there mentioned, so as to render it consistent with the preceding penal expressions? And is not this construction, in favor of life, strengthened, by the improbability, that the legislature of Pennsylvania intended to make the law in this case more sanguinary here, than the law of England at that period, which, it is apprehended, required one or more writs of eapais, an exigent, five exactions, at five different county courts, a proclamation at the door of a place for divine worship, &c., before an outlawry could be incurred ? Tremaine’s P. C. 281, &c.; Statutes before mentioned; Hale; Hawkins; Bacon; Blackstone.
    VII. As the person was brought into the supreme court by habeas corpus, ought not judgment to have been expressly pronounced ; as the reason assigned for judgment not being pronounced “ afresh,” in Ratcliffs case, who was brought into the king’s bench by habeas *corpus is, “ it having been pronounced before And in the cases of Stafford, JBartstead, [*88 Olcey, and Gobret, who were attainted by act of parliament (cases nearly resembling this), “the Chief Justice pronounced the usual judgment as in cases of high treason.” Foster 44.
    
      VIII. If all the proceedings in the present case are as rigidly exact as the law requires, in this uncommon mode of taking away life, ought Council to form a new kind of warrant for execution, thereby ordering, that on a certain day, the offender be hanged by the neck till he be dead, or order in the warrant, that on a certain day, execution be done upon the pffender, leaving the sheriff to decide what is the punishment by law to be inflicted.
    It would be agreeable to us, if you, gentlemen, would also be pleased to consider, whether the outlawry in the present case, may not be legally reversed, and the offender brought to a trial, for these defects in the proceedings.
    I. By the act for the advancement of justice, it is directed, “ that the capias shall be returnable before the justice of that court, where such party shall be indicted or appealed, at the supreme or provincial court next after the taking of such indictment or appealand that the party shall be called on by proclamation “ to appear before the said justices at the said supreme court;” and it is set forth in the indictment, in the present case, that it was taken at “ a court of oyer and terminer and general gaol delivery but, the capias in the present case directs the party to be called on by piroclamation, to “ appear before the justices of the supreme court.” ’Tis true, the same persons are justices of both courts ; but the title of “that court where the party shall be indicted,” expressly required by the act, is omitted.
    II. It is not returned by the sheriff, that the party was called on by proclamation, “ to answer to the Commonwealth, ” as by the act aforesaid, and by the capias is directed.
    HI. It is not set forth, that the capias was “ delivered to the sheriff three months before the return thereof, ” as the same act requires : Nor does the sheriff even return, that he made the proclamation by virtue of the said capias. The proclamations might be made without the writ; and though it may be inferred, that they were not, ought inferences against the accused to be admitted, in a case so highly penal ?
    IY. Is not the form of the proclamation proscribed by the act aforesaid, and ought it not to have been strictly pursued ; and does not the first line of that form require the proclamation to begin with a setting forth of the indictment ?
    V. Ought it not to appear, when, and how, the party was “ for. the cause aforesaid before committed to the custody of the sheriff of the city and county of Philadelphia,” or, at least, that it was subsequent to the proclamations in Bucks county ?
    YI. The act before mentioned, and the capias, order the sheriff to ¡j.qq'i “ make proclamation in every court of quarter sessions,” &c., *but the sheriff returns that he “ caused public proclamation to be made at two several courts of quarter sessions,” &c. The word “ at ” is uncertain. So is the word “public.” Neither of them is used in the act. The requiring “ the sheriff to make the proclamations,” appears to have been intended to oblige his attendance in person at so solemn a transaction, leading to such fatal consequences. It is not returned, that he was present. As to the other words, proclamations might be, in some sense, said to be “ public,” and “ at the courts,” and yet not “ in the courts.” Where life depends on proclamations, it seems scarcely possible to adhere with too scrupulous an exactness to injunctions positively directed by law, for giving them their destructive efficacy.
    
      YU. It does not appear by the return, who was called on by proclamation to appear.
    The offender has represented to us, by petition, that, at the time when the outlawry was sued forth against him, he was in New York, then in the possession of the British army. What regard ought to be had to that circumstance, you, gentlemen, can determine.
    I am, with respect, Gentlemen,
    Your most obedient and very humble servant,
    JOHN DICKINSON.
    To these inquiries the following answers were returned, addressed to his Excellency the President, in Council, on the 15th of January 1785.
    Sir : — We had the honor of receiving on the 29th of November last, the letter from your Excellency, and the Honorable the Supreme Executive Council, dated the ,22d of .the same month, respecting the case of Aaron Doan, who stands attainted of a robbery, in the county of Bucks, by outlawry, and against whom execution has been awarded. In this letter, the council express difficulties with regard to their issuing the warrant for his execution, and have desired the opinion of the judges on nine several questions. Before we gave our answers to these questions, it was expected that all the judges might consult together, in court upon them ; bur, as we now despair of this for some months, we. shall offer what we think may be material on the occasion, without further delay.
    Previously to the giving our answers, we beg leave to observe, that the judges do not hold themselves bound to assign any reasons for their judgments ; and when they do give reasons, it is always in public. 
       This is mentioned, that the present proceeding may not be drawn into a precedent.
    * We would next observe, generally, that an outlawry for felony, r is a conviction and attainder of the offence charged in the indictment, *- and has been as long in use as the law itself. The intention of it was to compel all men to submit to the laws of their country, and to prevent their escaping justice, by flying and staying away, until all the witnesses are dead. It is a very important part of the criminal law ; and we do not find an occasion, where any question of law, upon a writ of error to reverse an outlawry in a criminal case, has ever undergone a serious litigation, before that of John Wilkes, Esquire, in 1770.
    
    If there be anything improper in taking away the life of a man, upon an attainder by a judicial outlawry, it belongs to the legislature to alter the law in this particular ; the judges cannot do it. But council can interpose their mercy.
    In our answers, we shall refer to the questions,' in the order they are placed in your Excellency’s letter, without inserting them here.
    Answers to the Questions.
    L The proceedings in this case are founded on the act of assembly, entitled, “An act for the advancement of justice, and more certain administration thereof.”
    II. Our law-books do not inform us, except very rarely, of the executions of capital offenders ; they are generally to be found in the histories of the times, or in the periodical publications; and therefore, we cannot mention, with certainty, any modern instances in England, prior to our Declaration of Independence, of persons being executed upon outlawry by judicial proceedings alone; but Lord Chief J ustice Mansfield, in Wilkes’s case, expresses himself thus : “ flight, in criminal cases, is itself a crime. If an innocent man flies for treason or felony, he forfeits all his goods and chattels. Outlawry, in a capital case, is as a conviction for the crime ; and many men, who never were tried, have, been executed upon the outlawry.” 4 Burr. 2549.
    III. We do not know of any instance in Pennsylvania, of a person being executed, upon outlawry by judicial proceedings alone ; but a certain David Dawson was executed, since the Declaration of Independence, in consequence of an attainder, by virtue of a proclamation of the Supreme Executive Council, and judicial proceedings thereupon. In that case, the court awarded execution, by pronouncing the usual sentence of death: no judgment having been given before.
    IV. We conceive such a mode of attainder compatible with the letter and. spirit of the constitution of this state, and that it is no infringement of the right of trial by jury ; for, that the party had not that trial, was owing to -| himself ; he was not deprived of :;:the right. As well, indeed, might *91] an offender, who confessed the fact in court, by pleading guilty to the indictment, after sentence, complain that he had not a trial by jury. By refusing to take his trial, he tacitly seems to have admitted himself guilty. 2 Hawk. fo. 170, ch. 23, § 53; 2 Halo 208.
    V. We conceive all the authorities and precedents of outlawries in capital cases at common law, in England, as applicable to the present case ; there being no difference, but in the form and manner of proceeding to the outlawry, which is made by the before-mentioned act of assembly. In particular,'wo would refer council to 4 Burr. 2527, and to 2577, where almost all the authorities are collected together and fully considered.
    VI. In the act for the advancement of justice, &c., § 17, the legislature have declared, “ That the party indicted of a capital offence, not yielding his body to the sheriff, at the return of the capias, shall be, by the justices of the supreme court, pronounced outlawed, and attainted of the crime whereof he is so indicted. And, from that time, shall forfeit all his lands and tenements, goods and chattels : which forfeiture, &c., after debts paid, shall go, one-half to the governor for the time being, &c., and for defraying the charges of prosecution, trial and execution of such criminals.” Had the clause ceased at the end of the Avords “ attainted of the crime whereof he is so indicted,” no doubt remains with us, but that the party Avas liable to “suffer all the pains of death prescribed by. law for the offence specified in the indict ment ;■ and the words following, so far from altering this construction, in our opinion, show, by the most necessary, evident, and strong implication, that the party was liable also to be executed ; for the expenses of the execution are to be defrayed out of his forfeited estate. We, therefore, have no doubt, that Aaron Doan, besides the forfeiture of his estate, has forfeited his life.
    VII. We conceive, that, where a person is attainted by an act of parliament or assembly, and is brought before the court, and execution awarded, the practice most generally has been, to do so, by pronouncing the express sentence ; and the reason given for it, is, because no judicial sentence had been pronounced before ; but in case of an outlawry by judicial proceedings only, no express sentence, is given upon the party’s being brought before the court, but merely an award on the roll, that the sheriff do execution at his peril, or execution awarded by the court; because a judgment had been given before. Judgments in criminal cases are divided into two kinds : 1. By ex2>ress sentence, to the punishment proper for the crime. 2. Judgments without any such sentence. Of the latter, there are two kinds : 1. Outlawry. 2. Abjuration. Judgment of outlawry, in England, is given by the coroner, and is in these words, “ Therefore, the said A. B., by the judgment of the coroner of our Lord the King, of the county aforesaid, is outlawed.” The party is thereby as much attainted, p„2 and shall forfeit and lose as *much, as if sentence had been given [*92 against him upon a verdict or confession. Finch of Law, 467; 3 Inst. 52, 212; Cro. Car. 266. &c. And after such outlawry, if the party is brought before the court of king’s bench, “execution shall be awarded against him, but no sentence pronounced, because the outlawry is a judgment, and no man shall have two judgments for one offence.” 2 Hawk ch. 48, § 23, fo. 447, and the cases there cited. But in the present case, the judgment was pronounced before by this same supreme court, that Aaron Doan is outlawed and attainted of the crime whereof he is indicted, and we do not think, that it would have been formal to have given a second express judgment. This matter was mentioned, and well considered by the judges, at the time they awarded execution in the present case of Aaron Doan.
    VIII. The judgment against Aaron Doan is, that he is outlawed and attainted of the crime whereof he is indicted. The record shows that he was indicted of a robbery ; in which case, the express judgment is, “ that he shall be taken back to the place from whence he came, and from thence to the place of execution, and there be hanged by the neck, until he, is dead.” The judgment of outlawry implies all this. We, therefore, think, that a warrant for the execution may properly issue, giving these S2>eeial directions to the sheriff. We find, that executions have been commanded to be done by the court, without writ, sometimes by writ; and that the king, in England, has, by S2>ecial warrants, frequently remitted part of the punishment and directed the rest, and changed hanging for beheading, though some have doubted of his authority to do so, in the latter instance. 2 Hawk. ch. 51, §§ 4, 5, fo. 463; Finch of Law, 478; Halloway’s Case, 3 Mod. 42; Cro. Jac. 496.
    IX. We do not think, that the outlawry, in the present case, can, at this stage of the business, be legally reversed. The several critical and verbal objections now stated by council, as well as most of those preceding, were made at the bar, in behalf of the prisoner, by his counsel learned in the law, answered by the prosecutor for the commonwealth, and overruled by the court, upon full discussion and mature consideration. The court cannot make errors, nor reverse for errors which do not exist, or which they cannot Bee ■ they must be satisfied that there are errors. There may, perhaps, be some small mistakes in the transcript of the record by the prothonotary, as we have not seen it, but there is no error in the record itself, that we have been able to discover. There has never been a question seriously litigated in Westminster Hall, upon a writ of error to reverse an outlawry in a capital case. Such a writ was never granted, but from justice, where there really was error, or from favor, where the king was willing the outlawry should be reversed. They are grantable merely ex gratid regis, and when granted, there never was any opposition made, and the courts reversed them upon slight and trivial objections, which could not have prevailed, if opposed, * | or the precedent had been of any consequence ; which could not be, -I as the king had the power to refuse *the writ. All was by consent of the king, and the reversal took place, though there was really no error at all.
    It is as much a breach of duty, to reverse a good, as it would be to affirm a bad outlawry. The mischief goes farther than an unrighteous sentence in the particular case ; for, to reverse without an error, is to abolish that part of the law.
    Your Excellency further informs us, that the offender has alleged in his petition to council, that he was in the city of New York at the time the outlawry was sued forth against him. In answer to this, we can only say with certainty, that if he had put any material fact in issue, it would have been tried.
    Upon the whole, three indictments for robbery have been found against him in Bucks county ; by the examinations of Jesse Vickers, Solomon Vick-ers, John Tomlinson, Israel Doan, Joseph Doan, <&c., he was a principal in them, and eight or nine others in that county, and the counties of Philadelphia, Chester and Lancaster ; he has been duly outlawed for one of them, and execution legally awarded, according to our judgments.
    We have the honor to be, with the greatest respect,
    Sir, your Excellency’s and the Council’s,
    Most obedient humble servants,
    THOMAS McKEAN,
    GEORGE BRYAN,
    JACOB RUSH.
    
    
      
      
         As the opinions given upon this occasion have governed several subsequent cases, I am persuaded, it will not be thought improper to insert them here, though they do not come within the strict idea of judicial decisions.
    
    
      
      
         Lord Morly’s case, Kelyng 54
    
    
      
       See 2 Hale, H. P. C., 205, 207, &c.; 4 Burr. 2541, 2549; 2 Hale 208; 4 Burr; 2S51.
    
    
      
      
         Since the publication of these reports, the reporter has been favored with the reasons offered to the Supreme Executive Council, in reply to the opinion of the judges, by Mr. Dickinson, the President. A duty to the public would sufficiently justify the insertion of this important document, that the subject might appear entire; but, I confess, that I am actuated by the additional motive of paying a tribute of respect to the wish of one who has done honor to his country, to his profession, and to his species. The document will be found in the Appendix. (In the present edition, it has been thought most convenient to introduce it in this place.)
    
   Proceedings of the Supi eme Executive Council of Pennsylvania, in the case of the Commonwealth v. Doan, subsequent to the opinion of the Judges.

In Council. — January 1784.

Council taking into most serious consideration the transcript of the record, transmitted to them by the honorable the judges of the supreme court, of the conviction and attainder of Aaron Doan, by outlawry, the capias directed to the sheriff of Bucks county to take the said Aaron Doan, &c., the return thereof, the letter of council to the said judges, and their answer, and the consequences to citizens of this commonwealth, of establishing a precedent, in a capital case, altogether new, thereupon.

Resolvedl That it does not appear, that a warrant can be legally issued for putting the said Aaron Doan to death, upon the outlawry aforesaid, for the following reasons :

I. The outlawry of the said Aaron Do an being founded on the “ Act for the advancement of justice, and more certain administration thereof,” passed May 31st, 1718, the said act ought to have been strictly observed, and its directions pursued with an “exceedingly nice and circumstantial” exactness, especially, as the penalty would be so ruinous, and the precedent may be so dangerous. But, the proceedings aforesaid vary from the said act in these instances :—

1st. It is not returned by the sheriff, that the party was called on by proclamation “ to answer to the commonwealth,” as according to the said act and the capias ought to have been done.

2d. It does not appear (unless by implication or intendment, in this case inadmissible) that the capias was “ delivered to the sheriff three months before the return thereof,” as the said act requires; it not being even returned, that the proclamations were made by virtue of the capias.

3d. The said act and the capias “ order the sheriff to make proclamation,” &c., but, the sheriff returns that he caused public proclamation to be made, &c. He does not say, that he was present when the proclamations were made : yet, in many cases of a much inferior nature, a sheriff’s presence is indispensably necessary,

4th. The act directs the making “ proclamations in every court of quar ter sessions, &c,,” but, the sheriff returns, that it was “ made at two several courts of quarter sessions, &c.”

5th. The act says, that proclamation shall be made for the party to “ appear before the said justices, at the said supreme court;” but the sheriff returns, that the party was called upon by proclamation “to appear at the supreme court.”

II. The sheriff returns on the capias, that the party was called upon “ to appear at the day and time within specified,” which might be done by reference only in the proclamation to the writ, without expressly mentioning the day and year when the party ought to appear. The return ought expressly to mention the day and year; and no intendment, however strong, is sufficient to supply the defect, Where life depends on proclamations, there cannot be too much exactness required, in order that the party may have due notice.

III. The sheriff returns, that “he caused public proclamation to be made, at two several courts of general quarter sessions of the peace, held at New-town, for the county of Bucks, &c.” But it was solemnly determined, on rej)eated argument, and the most serious consideration, by all the judges in Wilkes’s case, to which the honorable judges of the supreme court refer— that, from the precedents, it appears, that a series of judgments have required a technical form of words, in the description of the county court, at which an outlaw is exacted; that after the words “ at my county court ” should be added the name of the county; and after the word “held,” should be added, “ for the county of-” (naming it again). In the return in the present case, the name of the county is not mentioned, before the word “held.”

Upon the authority of these precedents, the outlawry in Wilkes’s case was reversed; ana they, together with the remarkable judgment in his case, demonstrate the present outlawry to be erroneous; for certainly, it cannot be easier to take away the life of a citizen, by an outlawry, in this state, than to inflict a slighter punishment, by outlawry, on a subject, m England,

If bare precedents establish a mere form of words with so much weight, though the judges were clearly of opinion, that “ they began against law, reason, and common sense,” and that “ there was not a color, originally, to hold these words to be necessary,” and where the penalty is so far inferior— how much more ought they to be regarded, and how religiously ought the express injunctions of a law, wisely and benevolently intended to guard against loose proceedings, to be revered, when those proceedings are to consign a fellow-citizen to death ?

So “ critical ” have the judges in England been with respect to outlawries, those vindictive supplements to a severe code of criminal jurisprudence, that the use of figures to denote time, as in the return in the present case, or the addition or omission of a single letter, as in this return the writing “Doane” for “Doan,” has been held a good objection for reversal.

IV. It appears very doubtful also, whether the issuing a warrant for the execution of Aaron Doan, would be a regular procedure, for the following considerations: 1st, Because, there never has been “ an instance in Pennsylvania of a person being executed upon outlawry, by judicial proceedings alone,” though the “ Act for the advancement of justice,” &e., was passed near seventy years ago. 2d, Because, not only would such a prosecution to death be more sanguinary, than the law then was in England, but would also oppose that mild system, which the constitution of this commonwealth has adopted. 3d, Because, it would weaken that security, which the constitution appears to have intended for its citizens ; it being a dangerous mbde of proceeding, that if admitted, ought to be regulated by the exactest cautions ; as a precedent of this kind,- established in times of tranquillity, may become a very destructive engine of policy, in times less peaceable. 4th, Because, it seems to be unnecessary, the penalty — “ forfeiture of lands and tenements, goods and chattels,” expressed in the act, appearing to be a sufficient punishment, where guilt is not proved in the usual manner. 5th, Because, the “ Act for the advancement of justice,” &c., is too obscurely worded. That act, in preceding parts, enumerates many capital offences, and some not capital, though very heinous, in every case of both kinds mentioning the punishments to be respectively inflicted on the criminals, the modes of trial, and the judgments to be given.

It then goes on, in the 17th section, to proceedings of outlawry, with much inaccuracy of expression and confusion of meaning. The words am not, as the honorable judges have stated, that “the party indicted of a capital offence, not yielding his body to the sheriff, shall be outlawed and attainted,” &c., but, that “ any person indicted or appealed for any of the said crimes, &c., without any distinction between offences “ capital ” or not capital.

Afterwards, in directing the proclamations, a new subject, not before mentioned in the act, is introduced into it, and the “ person so indicted or appealed is to answer, &c., of the treason, felony or trespass, whereof he is so indicted or appealed.” This clause is immediately succeeded by another, that refers to all offences whether capital, not capital, or only trespasses, and makes the same provision in them all — “ if he who is so indicted or appealed, comes not at the said day of return of the said capias, and yield his body to the sheriff, he shall be, by the justice of the said supreme court, qironouneed outlawed and attainted of the crime whereof he is so indicted or appealed as aforesaid. And from that time, shall- forfeit and lose all his lands and tenements, goods and chattels : which forfeiture and all other forfeitures expressed or implied by the said judgments, to be given upon the said capital offences mentioned in this act, after such criminals’ just debts and reasonable charges of their maintenance in prison, are deducted shall go, one-half to the governor for the time being, towards support of this government, and for defraying the charges of prosecution, trial and execution of such criminals ; and the other half or residue thereof shall go to such criminal’s wife and children,” &c.

Thus, the words “ which forfeiture ” refer to “ trespasses ” as well as to “ capital offences,” and then, by á faulty connexion with the words “ other forfeitures ” — which “ other forfeitures ” rest on principles totally different, that is, on “trials and judgments” before directed in the act, carry forward the confusion, until, by grammatical construction, the words “ which forfeiture ” are made to relate to the word “ execution,” in cases not capital, and even in cases of “ trespass,” which indubitably was never intended by the legislature.

The words of the act just cited, and which seem to have had an influence on the honorable judges, to wit, “ upon the said capital offences mentioned m this act,” plainly refer to the “ other forfeitures and judgments,” which had been prescribed and directed in parts of the act prior to that, which treats of outlawry.

Indeed, the honorable judges, for sustaining a construction, that couples the word “ execution ” with the punishment of outlaws, seem to have relied on an “implication,” to them appearing “most necessary, evident and strong,” but still an “implication.” This distinction claims attention. The “ other forfeitures ” mentioned in the act depend on “ the offences being capitalthe forfeiture on outlawry, does not.

Lastly, The act, by giving no direction on the point, leaves involved in great obscurity the question — in what county the party is to be executed, when the offence is charged to be committed, the indictment is found, and the proclamations are made in one county, and he is outlawed and attainted in another — which is the present case. 
      
      
         Council having determined not to issue a warrant for execution, did not formally, pass these resolutions, which were submitted to them by their learned and humane President.
     
      
      
         4 Bl. Com. 320. “ It seems generally agreed, that infrnor of life, an outlawry of treason or felony might be avoided by plea, that the defendant was in prison, or in the king's service beyond sea, &c., at the time of the outlawry pronounced against him. But I take it to be generally agreed, that no outlawry for any other crime (against a party rightly described) can be avoided by the plea of any matter of fact whatever.” 2 Hawk. P. C. 460. “ By Magna Oharta, no man can be outlawed, but according to the laxo of the land.'’ 1 Bl. Com. 142.
     
      
       4 Baeon’s Abr. 441.
     
      
      
         2 Hale’s P. C. 203, p. 4; 3 Bac. 767, 772; 4 Burr. 2559. The return says, “I have caused public proclamation to be made, in manner and form as within I am commanded.” “This is certainly too loose; the proclamations are not sufficiently set out for the court to judge, whether they were properly made or not. I thought this error fatal.” Lord Mansfield, in Wilkes’s case; and tho error would have been “fatal ” if proclamations had been necessary in that case; but from peculiar circumstances they were not necessary. In Aaron Doan’s case they arc acknowledged to have been necessary. They are the most essential parts of the whole proceedings. Indeed, by the act of assembly on which this outlawry is founded, the exigí facias and the writ of proclamation are combined. The distinct nature of them is stated in 3 Bl. Com. 283, 284, &c., and in the Appendix, 16, 17, &c. “I beg to be understood that I ground my opinion singly upon the authority of the cases adjudged; which as they are on the favorable side, in a criminal case highly penal, I think, ought not to be departed from; and therefore, I am bound to say, that for want of those technical words, the outlawry ought to be reversed.” Lord Mansfield, in Wilkes’s case. The other three judges spoke seriatim; and concurred with the chief justice. A multo fortiori, the positive terms of a law, in a case vastly more penal, ‘■'■ought not to he departed from.”
      
     
      
      
        Alder was outlawed for murder. The sheriff returned — “at my county court held at D., in the county of Northumberland,” and did not say, “at my county court of Northumberland, held, &c.,” and this was holden to be error; 2 Roll. Rep. 52, cited by I ord Mansfield, with several other cases of the like purport, in Wilkes's case.
      
      “ If an outlawry bo returned, that the party was exacted (called) at three several times, in the tenth year of James, and that he was a fourth 'time exacted the fifth day of February, and did not appear, without mentioning any year, and was a fifth time exacted such a day in March, in the tenth year of James, although it may be intended that he was the fourth time exacted in the tenth year of James, yet the outlawry shall not be good by intendment.” 2 Roll. Abr. 803; 2 Hale P. C. 203. If any intendment or implication could support an outlawry, this seems to have been sufficient
     
      
       4 Burr. 2563, &c.
     
      
      
        Qj) “Either from a want of attention to these principles (of truth and justice, the feelings of humanity, and the indelible rights of mankind, in the first concoction of the laws, and adopting in their stead the impetuous dictates of avarice, ambition and revenge ; from retaining discordant political regulation, which successive conquerors or factions have established !n the various revolutions of government,” &c. 4 Bl. Com. 3
     
      
      
         Style, 182, 334; Cro. Eliz. 204; Cro. Jac. 576; 3 Bac. 767.
     
      
       See the act of 23d September 1791, 3 Sm. Laws, 87, regulating the process upon outlawries.
     