Page:United States Reports, Volume 1.djvu/99

88 1784.  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 judgment as in cafes of high treafon,’’ Foƒter 44.

Eight.— If 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. but