Respublica v. Doan

by Supreme Court of the United States

1784.

RESPUBLICA verʃus DOAN.

A

ARON DOAN, being attainted of a robbery in the county of Bucks, by procefs of Outlawry, he was brought before the Court on the 24th day of September 1784 ; and, after hearing his Counfel upon feveral exceptions to the outlawry, (which were all over-ruled) execution was awarded againft him on the 9th day of October. The following correfpondence then took place between the Honorable the Supreme Executive Council, and the judges ; in the counrfe of which feveral important points of law were ftated and confidered.^[♦]

On the 22d of November 1784, the Prefident and Supreme Executive Council addreffed the following to the Judges.

Gentlemen,

we have perufed, and attentively confidered, the tranfcript of the record tranfmitted by you, of the attainder of Aaron Doan ; and as it appears to us, a cafe of a novel and extraordinary nature, which, being once eftablifhed as a precedent, may greatly affect the lives, liberties, and fortunes, of the Freemen of this Commonwealth, we cannot, confiftently with our ideas of duty, iffue a warrant for his execution, (illegible text) the doubts and difficulties that prefent themfelves to our view, and removed.

To take away the life of man without a fair and open trial, upon an implication of guilt, has ever been regarded as fo dangerous a practice, that the law requires all the proceedings in fuch a mode of putting to death, to be ‘‘ exceedingly nice and circumftantial’’ as Blackʃtone fays ; and ‘‘ any fingle minute point omitted, or mifconducted, renders the whole outlawry illegal, and it may be reverfed ; upon which reverfal the party accufed is admitted to plead to, and defend himfelf againft the indictment.’’ 4. Blackʃtone 315.

This liberality of fpirit feems to have advanced with the improvement of the human mind, and of thofe laws, from which our own are compofed : For, by the ftatute of 4& 5 W. & M.c.22. wifely and benevolently reciting, that, ‘‘ it is agreeable to juftice, that proceedings in out-lawries in criminal cafes, fhould be as public and notorious, as in civil caufes, becaufe the confequences to perfons out-lawed in criminal cafes, are more fatal and dangerous to them, and their pofterities, than in any other caufes ;’’ it was enacted, that, ‘‘ upon iffuing an exigent in a criminal cafe, there

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fhould iffue a proclamation, according to the form of the ftatute made in the one and thirtieth year of Qurrn Elizabeth ’’ &c. And the firft mentioned ftatute was made perpetual by this 7 & 8 W. 3 c. 36.

It is our defire to regulate our conduct by the juft maxims, and generous principles, that have been eftablifhed, for keeping under proper directions, and reftraining within proper limitations, this menacing part of jurisprudence.

We fhall, therefore, be obliged, if you will be pleafed to take the queftions now propofed into your confideration, and to favor us with your anfwers.

Firʃt.—Whether the proceedings in this cafe are found on common law, the Act for the advancement of juftice, or on any other, and what acts of Affembly, or f Parliament?

Second.—Whether there have been any, and what modern inftances in England, prior to our Declaration of Independence, of perfons being executed upon outlawry by judicial proceedings alone?

Third.—Whether there has ever been any, and what inftance in Pennʃylvania, of being executed upon outlawry by judicial proceedings alone?

Fourth.—Is fuch a mode of attainder compatible with the letter and fpirit of the Conftitution of this State, which eftablifhes, with fuch ftrong fanctions, the right of trial by jury?—See fection the ninth of the Declaration of rights——fection the twenty-fifth of the Frame of government,&c.

Fifth.—What authorities and precedents are confidered as moft applicable to the prefent cafe?

Sixth.—If this outlawry is principally founded on the act for the advancement of juftice, do not thefe words, ‘‘ attainted of the crime whereof he is fo indicted or appealed as aforefaid, and from that time fhall forfeit and lofe all his lands and tenements, goods and chattels;’’ imply by force of the copulative, ‘‘and,’’ that this forfeiture was the penalty defigned to be incurred by fuch an outlawry, and may not the word ‘‘ execution’’ in the following part of the claufe, as it is connected with the word ‘‘ trial,’’ be reafonably applied to the other criminals there mentioned, fo as to render it confiftent with the preceding penal expreffions? And is not this conftruction, in favor of life, strengthened by the improbability, that the legiflature of Pennʃylvania intented to make the law in this cafe more fanguinary here, than the law of England at that period, which, it is apprehended, required one or more writs of capias–an exigent–five exactions–at five different county courts—a proclamation at the door of a place for divine worfhip,&c. before an outlawry could be incurred, Tremaine's P.C. 291.&c.–Statutes before mentioned–Hale–Hawkins–Bacon–Blackʃtone.

Seventh.—As the perfon was brought into the Supreme Court by Habeas Corpus, ought not judgment to have been expreʃsly pronounced, as the reafon affigned of judgment not being pronounced ‘‘ afreth,’’ in Ratcliʃʃe's cafe, who was brought into the King's Bench by Habeas Corpus is, ‘‘ it having been pronounced before :’’ And in the cafes on Staƒƒord, Bertƒtead, Okay, and Carbet, who were attained by act of parliament, cafes nearly refembling this) ‘‘ the Chief Juftice pronounced the (illegible text) judgment as in cafes of high treafon,’’ Foƒter 44.

Eight.— If (illegible text) the proceedings in the prefent cafe are as rigidly exact as the law requires, in the 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 offender, leaving the fheriff to decide what is the punishment by law to be indicted ?

It would be agreeable to us, if you, gentlemen, would alfo be pleafed to confider,, whether the outlawry in the prefent cfe, may not be illegally reverfed, and the offender brought to a trial, for thefe defects in the proceedings.

Firʃt.—By the act for the advancement of juftice it is directed, ‘‘ that the capias fhall be indicted or appended, at the Supreme or Provincial Court next after the taking of fuch indictment or appeal; ’’ and that the party fhall be called on by proclamation ‘‘is appear before the faid juftices at the faid Supreme Court;’’ and it is fet forth in the indictment in the prefent cafe, that it was taken at ‘‘ a Court of Oyer and Terminer and general Gaol Delivery ; ’’ but, the capias in the prefent cafe directs the party to be called on by proclamation, to ‘‘ appear before the juʃtices of the Supreme Court. ’’ Tis true, the fame perfons are juftices of both courts ; but, the title of ‘‘ that court where the party fhall be indicted, ’’ exprefsly required by the act, is omitted.

Second.—It is not returned by the fheriff, that the party was called on by proclamation, ‘‘ to anfwer to the Connomwealth, ’’ as by the act aforefaid, and by the capias is directed.

Third.— It is not fet forth that the capias was ‘‘ delivered to the fheriff three months before the return thereof,’’ as the fame act requires : Nor does the fheriff even return, that he made the proclamations by virtue of theʃaid capias.

The proclamations might be made without the writ ; and though it may be inferred, that they were not, ought inferences againft the accufed to be admitted in a cafe of highly penal ?

Fourth—Is not theeform of the proclamation prefcribed by the act aforefaid, and ought it not to have been ftrictly purfued ? and does not the firft line of that form require the proclamations to begin with a fetting forth of the indictment ?

Fiƒth.—Ought it not to appear, when, and how, the party was ‘‘ for the cauʃe aƒoreƒaid BEFORE committed to the cuftody of the fheriff of the City and County of Philadelphia, ’’ or at leaft, that it was ʃubʃequent to the proclamations in Bucks County ?

Sixth.—The act before mentioned, and the capias,  order the fheriff to ‘‘ make proclamation in every Court of  Quarter Seffions,’’ &c. 

1784.

but the fheriff returns that he ‘‘ cauʃed public proclamation to be made at two feveral courts of quarter feffions,’’ &c. The word ‘‘at ’’ is uncertain. So is the word ‘‘ public. ’’ Neither of them is ufed in the act. The requiring ‘‘ the fheriff to make the proclamations,’’ appears to have been intended to oblige his attendance in perfon at fo folemn a tranfaction, leading to fuch fatal confequences. It is not returned, that he was prefent. As to the other words, proclamations might be in fome fenfe faid to be ‘‘ public,’’ and ‘‘ at the courts,’’ and yet not ‘‘ in the courts.’’ Where life depends on proclamations, (illegible text) fcarcely poffible to adhere with too fcrupulous an exactness to injunctions pofitively directed by law, for giving them their conftructive efficacy.

Seventh.—It does not appear by the return who was called on by proclamation to appear.

The offender has reprefented to us by petition, that, at the time, when the outlawry was fued forth againft him, he was in New-York, then in the poffeffion of the Britfh army. What regard ought to be had to that circumftance, you, gentlemen, can determine.

I am with Refpect.

Gentlemen,

Your moft obedient

And very humble Servant,

John Dickinʃon.

To thefe inquiries the following anfwers were returned, addreffed to his excellency the Prefident in Council, on the 15th of January 1785.

Sir.

we had the honor of receiving on the 29th of Novermber laft, the letter from your Excellency, and the Honorable The Supreme Executive Council, dated the 22d of the fame month, refpecting the cafe of Aaron Dean, who ftands attainted of a robbery in the county of Bucks, by Outlawry, and againft whom execution has been awarded. In this letter the council exprefs difficulties with regard to their iffuing the warrant to his execution, and have defired the opinion of the judges on nine feveral queftions. Before we gave our anfwers to thefe queftions, it was expected that all the judges might confult together, in court upon them ; but, as we now defpair of this for fome months, we fhall offer what we think we may be material on the occafion without further day.

Previoufly to the giving our anfwers, we beg leave to obferve, that the judges do not hold themfelves bound to affign any reafons for their judgments ; and when they do give reafons, it is always in public. ^[♦] This is mentioned, that the prefent proceeding may not be drawn into a precedent.

1784.

We would next obferve generally, that an outlawry or felony, is a conviction and attainder of the offence charged in the indictments, and has been as long in ufe as the law itfelf. The intention of it was to compel all men to fubmit to the laws of their country, and to prevent their efcaping juftice, by flying, ftaying away, until all the witneffes are dead. It is a very cimportant part of the criminal law ; and we do not find an occafion, where fay queftion of law, upon a writ of error to reverfe an outlawry in a criminal cafe, ever underwent a ʃerious litigation, before that of John Wilkes, Eʃquire, 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 legiflature to alter the law in this particular ; the judge cannot do it. But council can interpofe their mercy.

In our anfwers, we fhall refer to the queftions, in the order they are place in your Excellency's letter, without inferting them here.

Anfwers to the Queftions.

Firʃt. The proceedings in this cafe are founded on the Act of Affembly, intitled, ‘‘ An act for the advancement of juftice, and more certain adminiftration 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 hiftorics of the times, or in the periodical publications; and, therefore, we cannot mention with certainty and modern inftances in England, prior to our Declaration of Independence, of perfons being executed upon outlawry by judicial proceedings alone; but Lord Chief Juftice Mansfield, in Wilkes's cafe, expreffes himfelf thus: ‘‘Flight, in criminal cafes, is itfelf a crime. If an innocent man ‘‘ flies for treafon or felony, he forefeits all his goods and chattels. ‘‘ Outlawry, in a capital cafe, 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 inftance in Pennʃylvania, of a perfon being executed upon outlawry by judicial proceedings alone : But a certain David Dawfon was executed, fince the Declaration of Independence, in confequence of an attainder by virtue of a proclamation of the Supreme Executive Council, and judicial proceedings thereupon. In that cafe, the Court awarded execution, by pronouncing the ufual ʃentence of death ; no judgment having been given beƒore.

Fourth. We conceive, fuch a mode of attainder compatible with the letter and fpirit of the Conftitution 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 himfelf ; he was not deprived of

1784.

the right. As well, indeed, might an offender, who comfeffed, the fact in court, by pleading guilty to the indictment, after fentence complain that the had not a trial by jury. By refufing to take his trial, he tacitly feems to have admitted himfelf guilty. 2 Hawkins ƒo 170 Chap.23.ʃeec. 53. 2 Hale 208.

Fiƒth. We conceive, all the authorities and precednets of outlawries in capital cafes at common law in England, as applicable to the prefent cafe; there being no difference, but in the form and number of proceeding to the outlawry, which it made by the before-mentioned Act of Affembly.

In particular we would refer council to 4 Burr. 2527 and to 2577, where almoft all the authorities are collected together and fully confidered.

Sixth. In the Act for the advancement of juftice, &c. ʃec. 17. the Legiflature have declared, ‘‘ that the party indicted of a capital offence, not yielding his body to the fheriff at the return of the capias, fhall be, by the Juftices of the Supreme Court, pronounced outlawed, and attainted of the crime whereof he is fo indicted. And from that time fhall forfeit all his lands and tenements, goods and chattels: which ƒorƒeiture, &c. and for defraying the charges of profecution, trial and execution of fuch criminals.’’ Had the claufe ceafed at the end of the words ‘‘ attainted of the crime whereof he is fo indicted,’’ no doubt remains with us, but that the party was liable to fuffer all the pains of death prefcribed by law for the offence fpecified in the indictment ; and the words following, for far from altering this conftruction, in our opinion, fhew, by the moft neceffary, evident, and ftrong implication, that the party was liable alfo to be executed ; for the expences of the execution are to be defrayed out of his forfeited eftate.—We therefore have no doubt, that Aaron Dean, befides the forfeiture of his eftate, has forfeited his life.

Seventh. We conceive, that, where a perfon is attainted by an Act of Parliament or Affembly, and is brought before the court, and execution awarded, the practice moƒt generally has been to do fo, by pronouncing the exprefs fentence ; and the reafon given for it, is, becaufe no judicial fentence had been pronounced beƒore ; but in the cafe of an outlawry by judicial proceedings only, no exprefs fentence is given upn the party's being brought before the court, but merely an award on the roll, that the fheriff do execution at his peril, or execution awarded by the court ; becaufe a judgment has been given beƒore. Judgments in criminal cafes are divided into two kings—1. By exprefs fentence to the punifhments proper for the crime. 2. Judgments without any fuch fentence. Of the latter there are two kings. 1. Outlawry. 2. Abjuration. Judgment of outlawry in England is given by the Coroner, and is in thefe words, ‘‘ Therefore the faid A. B. by the judgment of the Coroner of our Lord the King of the country aforefaid is outlawed.’’ The party is thereby as much attainted, and fhall forfeit and loofe as

1784.

much, as if fentence had been given againft him upon a verdict or confeffion. Finch oƒ Law, 467.3. Inʃt. 52. 212. Cro. Coro. 266.&c. And after fuch outlwry, if the party is brought before the court of King's Bench, ‘‘ execution fhall be awarded againft him, but no ‘‘ ʃentence pronouncd, becaufe the outlawry is a judgment, and no ‘‘ man fhall have two judgments for one offence.’’ 2 Hawk. chap. 48. ʃec. 23. ƒo: 447, and the cafes there cited. But in the prefent cafe, the judgment was pronounced before by this fame Supreme Court, that Aaron Doan is outlawed and attainted oƒ the crime whereof he is indicted, and we do not think, that it would have been formal to have given a fecond exprefs judgment. This matter was mentioned, and well confidered by the judges, at the time they awarded execution in the prefent cafe of Aaron Doan.

Eight. The judgment againft Aaron Doan is, that he is outlawed and attainted oƒ the crime whereoƒ he is indicted—The record fhews that he was indicted of a robbery ; in which cafe, the exprefs jufgment is, ‘‘ that he fhall 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 iffue, giving thefe fpecial directions to the fheriff. We find, that executions have been commanded to be done by the Court without writ, fometimes by writ: and that the King in England has, by fpecial warrants, frequently remitted part of the punifhment and directed the reft, and changed hanging for beheading, though fome have doubted of his authority to do fo, in the latter inftance. 2 Hawk. chop. 51. ʃec. 4. 5. ʃo . 463. Finch oƒ laws, 478. 3 Mod. 42. Cro. Jac. 496.

Ninth.  We do not think, that the Outlawry,   in the prefent cafe can, at this ftage of the bufinefs, be legally reverfed.  The feveral critical and verbal objections, now ftated by Council, as well as moft of thofe preceding were made at the bar, in behalf of the prifoner, by his counfel learned in the law, anfwered by the profecutor for the Commonwealth, and over-ruled by the Court, upon full difcuffion and mature confideration.  The Court cannot make  errors, nor reverfe for errors which do not exiʃt, or which they  cannot ʃee:  They muft be fatisfied, that there are errors.  There may, perhaps, be fome fmall miftakes in the tranʃcript of the record by the Prothonotary, as we have not feen it, but there is no error in the record itfelf, that we have been able to difcover.  There has never been a queftion ferioufly litigated in Weʃtminʃter-Hall upon a writ of error to reverfe an Outlawry in a capital cafe.  Such a writ was never granted, but from juftice, where there really was error, or from favor, where the King was willing the Outlawry  fhould be reverfed:  They are grantable merely ex gratia Regis,  and when granted, there never was any oppofition made, and the Courts reverfed them upon  ʃight and trivial objections, which could not have prevailed, if oppofed, or the precedent had been of any confequence ; which could not be, as the King had the power to reʃuʃe 

1784.

she writ. All was by consent of the King, and the reversal took place, through 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 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 (illegible text), it would have been tried.

Upon the whole, tthree indictments for robbery have been found against him in Bucks county ; by the examinations of Jeʃʃe Vickers, Solomon Vickers, John Tomlinʃon, Iʃrael Doan, Joʃeph Doan, &c. he was a principle in them, and eight or nine others in that county, and the counties of Philadelphia, Cheʃter and Lancaʃter ; 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 greateʃt reʃpect,

Sir,

Your Excellency's and the Council's,

Most obedient humble Servants,

THOMAS M‘KEAN.

George Bryan. Jacob Ruʃh