Aaron Doan, being attainted of a robbery in the county of Bucks,
by process of Outlawry, he 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 over-ruled) 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 22nd of November 1784, the President and Supreme
Executive Council addressed the following letter to the Judges.
Gentlemen,
[ Respublica v. Doan
1 U.S.
86 (1784)
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 case 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
Commonwealth, we cannot, consistently with 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 without 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 Blackstone says; and any single minute point
omitted, or misconducted, renders the whole outlawry illegal, and
it may be reversed; upon which reversal the party accused is
admitted to plead to, and defend himself against the indictment. 4.
Blackstone 315.
This liberality of spirit seems to have advanced with the
improvement of the human mind, and of those laws, from which our
own are composed: For, by the statute of 4 & 5 W. & M.c.
22. wisely and benevolently reciting, that, it is agreeable to
justice, that proceedings in out-lawries in criminal cases, should
be as public and notorious, as in civil causes, because the
consequences to persons out-lawed 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
Page 1 U.S. 86,
87
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 perpetual by the 7
& 8 W. 3 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. First. 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? Second. 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? Third. Whether there has
ever been any, and what instance in Pennsylvania, of a person being
executed upon outlawry by judicial proceedings alone? Fourth. 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. Fifth. What authorities and precedents are
considered as most applicable to the present case? Sixth. 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 the 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 capias-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. Seventh. As the person
was brought into the Supreme Court by Habeas Corpus. ought not
judgment to have been expressly pronounced, as the reason alligned
of judgment not being pronounced 'afreth,' in Ratcliff's case, who
was brought into the King's Bench by Habeas
Page 1 U.S. 86,
88
Corpus is, it having been pronounced before: And in the cases of
Stafford, Bartstead, Okey, and Corbet, 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.
Eighth. 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 offender, 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.
First. By the act for the advancement of justice it is directed,
that the capias shall be returnable before the justices 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 appeal; and 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 proclamation, 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. [88-Continued.]
Second. 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.
Third. 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
proclamations 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?
Fourth. Is not the form of the proclamation prescribed 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?
Fifth. 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?
Sixth. The act before mentioned, and the capias, order the
sheriff to 'make proclamation in every Court of Quarter Sessions,'
&c.
Page 1 U.S. 86,
89
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.
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,
Gentlemen,
Your most obedient
And very humble Servant,
John Dickinson. [89-Continued.]
To these enquiries 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 22nd 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 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.
Page 1 U.S. 86,
90
We would next observe generally, that an 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, Esquire, 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
interpese 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.
First. The proceedings in this case are founded on the Act of
Assembly, intitled, 'An act for the advancement of justice, and
more 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; but Lord Chief Justice
Mansfield in Wilkes's case, expresses himself thus: 'Flight, in
criminal cases, is itself a crime. If an innocent man files 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 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 proceedings thereupon. In that case, the Court awarded
execution, by pronouncing the usual sentence of death; no judgment
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
Page 1 U.S. 86,
91
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 himself guilty.
2.Hawkins so. 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 from 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 construction, in our opinion,
show, by the most necessary, evident, and strong implication, that
the party was liable also to be executed; 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
his 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 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 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 loose as
Page 1 U.S. 86,
92
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.&. 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.chap.48. sec. 23.so.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.
Eighth. 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 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. so. 463. Finch of
law, 478.3 Mod. 42. Cro. Fac. 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 behalf of
the prisoner, by his counsel learned in the law, answered by the
prosecutor for the Commonwealth, and over-rulled 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 see. The 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 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
Page 1 U.S. 86,
93
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
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 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, with the greatest respect,
Sir,
Your Excellency's and the Council's
Most obedient humble Servants,
Thomas McKean.
George Bryan. Jacob Rush.
Footnotes
[
Footnote *] As the opinions given,
upon this occasion, have governed several subsequent cases, I am
pursuaded, it will not be thought improper to insert them here,
though they do not come within the strict idea of judicial
decisions.
[
Footnote *] Kel. 54.
[
Footnote *] See 2 H.H.P.C.205. 207.
& 4 Burr.2541.2549. 2 Hale 208. 4 Burr. 2551.
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