Page:United States Reports, Volume 1.djvu/98

Rh 

1784.

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 rightsfection 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 beas