1 U.S. 86 (1784)

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U.S. Supreme Court

RESPUBLICA v. DOAN, 1 U.S. 86 (1784)

1 U.S. 86 (Dall.)


Supreme Court of Pennsylvania

September Term, 1784

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.


[ 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 [1 U.S. 86, 88]

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