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Seventh.—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,
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 ; but, 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 on outlawry for felony, 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, ever underwent a serious litigation, before that of John Wilkes, Esq. in 1770.
If there be any thing 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.
ANSWER'S TO THE QUESTIONS.
First.-The proceedings in this case are founded on the act of assembly, entitled, “ An act for the advancement of justice, and inore certain administration thereof."
Second.- 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 ; wat lord chief justice 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 chattles. 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 Burrow. 2549.
Third. 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 siroceedings thereufron. In that case, the court awarded execution, by pronouncing the usual sentence of death ; no judg. ment having been given before.
Fourth.-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 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 him. self guilty. 2 Hawkins, fo. 170. chap. 23. sec. 53. 2 Hale 208.
Fifth.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 we would refer council to 4 Burr. 2527 and to 2577, where almost all the authorities are collected together and fully considered.
Sixth. In the act for the advancement of justice, &c. sec. 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 froin that time shall forfeit all his lands and tenements, goods and chattles : 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 words “attainted of the crime whereof he is so indicted,” no doubt remains with us, but that the party was liable to suffer all the pains of death prescribed by law for the offence specified in the indictment; and the words following, so far from altering this con
struction, in our opinion, shew, by the most necessary, evident, · and strong implication, that the party was liable also to be execut
ed; for the expences of the execution are to be defrayed out of his forfeited estate.—We therefore have no doubt, that Aaron Doan, besides the forfeiture of lis estate, has forfeited his life.
Seventh-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 l'eason 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 express 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, and shall forfeit and lose as much, as if sentence had been given against him upon a verdict or confession. Finch of Law, 467. 3 Inst. 52.212. Cro. Coro. 266.8. And after such outlawry, if the party is brought before the court of king's besich, « execution shall be awarded against him, but no sentence fironounced, because the outlawry is a judgment, and no man shall have two judgments for one offence.” 2 Hawk, chap. 48. sec. 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 aitainted 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.
Eighth.—The judgment against Aaron Doan, is, that he is outławed and attainted of the crime whereof he is indicted—The record shews 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 special 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 special 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. chap. 51. sec. 4. 5. fo. 463. Finch of Law, 478. 3 Mod. 42. Cro. Jac. 496.
Ninth.--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 hehalf of the prisoner, by his counsel learned in the law, answered by the prosecutor for the commonwealth, and over-ruled by the court, upon full discussion and mature consideration. The court cannot make error's, nor reverse for errors which do not erist, or which they cannot see: They must be satisfied, that there are errors. There may, perhaps, be some small mistakes in the transcrifit of the record by the prothonotarry, 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 gratia 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, as the king had the power to refuse the writ. AM 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 alledged in his petition to council, that he was in the city of Newa 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 Vickers, 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,
Most obedient humble servants,
[ U. 4. ] Minutes of Assembly of 1800-1, page 228. By whatever process, then, punishment for an offence can be inflicted, it must be denominated a criminal prosecution ; and it is obvious, that a contrary doctrine, would make mere matter of form, the fluctuating criterion of our dearest rights.
Thus, an impeachment by the legislature, is a criminal prosecution, though a conviction can only affect the delinquent's office; and the characteristic distinction between the impeachment, and the address, is, simply that the same effect (a removal from office) may be produced in the latter course of proceeding, for any reasonable cause to which the former course of proceeding could not be extended. But the very terms of the constitution must extinguish every doubt on the subject, for there we find, criminal