1770. REX V. WILKES. •Vide § 4. signed for error; and that the outlawry aforesaid may l all things be affirmed. LORD MANSFIELD-Let the writs of error be al lowed. HIS LORDSHIP-then asked the Attorney-General, "to what prison he prayed that the defendant might be "committed." Mr. Attorney-General answered-" To the Marshal." LORD MANSFIELD-Let him be committed to the Marshal. Mr. Serjeant Glynn moved that he might be admitted to Bail, on 4 & 5 W. & M. c. 18.* which, he said, extended to cases of misdemeanour. He was supported by Mr. Recorder of London, Mr. Mansfield, and Mr. Davenport. They urged the spirit, scope and design of this Statute, as well as the words of it, as arguments to prove that it extended to misdemeanours; and that the preamble and enacting part of it do, both of them, apply to Mr. Wilkes's 's case and they said, that even if the words were doubtful, the construction of them ought to be such as would be most favourable to liberty. But these words are express; they include all causes, except treason and felony. For the more easy and speedy reversing of "outlawries in the Court of King's Bench, Be it enacted "that no person or persons whatsoever who are or shall "be outlawed in the said Court, for any cause matter or "thing whatsoever, (treason and felony only excepted,) "shall be compelled to come in person into, or appear "in person in the said Court, to reverse such outlawry; "but shall or may appear by attorney and reverse the "same, except where special bail shall be ordered by [2538 "the said Court." Cases of misdemeanour are within the same mischief as civil cases and it extends to outlawries after conviction of misdemeanours, as well as to outlawries upon mesne process. If the question should take a long time in discussing, the defendant may be actually punished by an imprisonment upon the outlawry, though it should be at last reversed; or still more unjustly, in case it should afterwards appear that no punishment ought to be inflicted upon the convictions themselves. In civil cases, a pardon is of course, upon paying the debt and costs: but a defendant outlawed upon mesne process for a misdemeanour has no such opportunity of getting rid of the outlawry. He ought to have an opportunity of putting himself in a condition of being amenable to the justice of his country. Though some of the expressions in this Statute may seem more applicable to civil cases, yet there are general words sufficient to take in criminal misdemeanours. They mentioned Sir John Read's Case, and that of Matthias Earbury in 1723. * Mr. Attorney-General (Mr. De Grey,) Sir Fletcher Norton, and Mr. Morton, on the other side, argued that this Statute relates only to civil cases; and not to criminal misdemeanours. The expressions of it relate to civil property. It can relate only to such cases where a defendant can appear by attorney. The preamble says "Whereas divers persons are prosecuted in the said Court of "King's Bench, to outlawries for debts, trespasses, or other misdemeanours; and there is no reversing such "outlawries but by the personal appearance of the persons outlawed so that the persons arrested upon such outlawries, if poor, lie in prison till their deaths; but "if able, it costs them very dear, to reverse the same "outlawries." The former of these words relate to property the latter, to actions for malicious prosecu tions and such like. The whole relates only to civil suits. And as to Earbury's case, they said it was neither a direct determination, nor any authority in the present 66 case. : Serjeant Glynn replied, that "Trespasses" include all other actions not arising ex contractu: and " Misdemeanours" must mean offences. "All causes, matters, and "things," certainly include criminal offences and misdemeanours. And the Statute speaks of outlawries in general. It is not reasonable, that the defendant should undergo the penalty of a contempt for withdrawing from justice, when the very validity of the outlawry itself is in question. And Earbury's case, though it was not an outlawry after conviction (as this is,) yet clearly proves "that this Act does relate to misdemeanours:" for, the judges were all of that opinion. 1770. REX V. WILKES. • Vide § 2. LORD MANSFIELD-God forbid that the defendant should not be allowed the benefit of every advantage he [2539 ] is intitled to by law! It is to be considered, how he is in custody. After conviction, if he had been present in Court, he might have been committed: if not present, he might have been taken by a capias. It is, indeed, in the discretion of the Court, to bail a person so circumstanced. But discretion, when applied to a Court of justice, means sound discretion guided by law. It must be govern 1770. REX WILKES. • Vide 65. [2540] [ 2540 ] * Vide § 2. ed by rule, not by humour: it must not be arbitrary, vague, and fanciful; but legal and regular. This defendant was not present, when convicted. He afterwards withdrew from justice, and was outlawed: and a capias ullagatum has now issued; and he is in custody upon it. If a person convicted be taken upon a Capias pro Fine, he is liable to be committed, unless the prosecutor consent to his being bailed. This is the common course of proceeding though it is usual to admit to bail, upon the prosecutor's consenting to it. In the case of the journeymen Taylors, and again in that of the Weavers, the defendants were by consent bailed, and by consent were not to appear till called upon. But I do not remember any case where such a person has been bailed without consent. When a person so convicted is committed, such commitment shall be taken into consideration by the Court when they come to pronounce their sentence upon him, and shall go as part of his punish ment. Here, the defendant is in custody under the conviction for, he is in custody upon the Capias utlagatum, which issued upon his conviction. Now, whatever doubts there may be about what is within the Act of Parliament of the 4 & 5 W. & M. . 18. it is most certain that a person convicted of a misdemeanour is not within it; because his case is not a bailable case. Nothing therefore can be clearer, than that such a person is not within an Act of Parliament that relates only to bailable cases. This Act relates to cases where no special bail is required, and to cases where special bail is required:* and the sheriff is directed what to do in either case. Where the case is bailable, the defendant is to be discharged upon the Security Bond. But even in civil actions, he could not be bailed, where he was not bailable he is only to be put into the same condition as if he had not been outlawed at all. If the outlawry was after judgment in debt, or any other civil action, and the defendant was not bailable before the outlawry, the Act did not make such defendant bailable, who was not so before the outlawry. I am clear, that this case is not within the Act. : Mr. Justice YATES was also clear in the same opinion. It is said, "that misdemeanours of all kinds are "within the words of this Act, as well as within the "scope and meaning of it." But misdemeanours are here connected with debts and trespasses; which are descriptions of civil actions and so may the word misdemeanour" be. This Act might, in the general words of the preamble, have a view to actions of con spiracy, deceit, or popular actions upon penal Statutes ; (on which an outlawry was given by 21 Ja. I. c. 4.) And taking the whole of the Act together, there can be no doubt about it: for, it must be construed of those cases where the clauses of the Act are practicable; which, in the present case, they are not. A conviction in a criminal case can not be within this Act. The Sheriff is directed by it, "to take security of the person outlawed, in the penalty of double the sum for which special "bail is required." But the sheriff can't take bail of a person after his being convicted of a crime. The sheriff can't form his own idea of the offence, or settle a sum wherein he should take the bail of such a person: nor can he require bail in double the fine, or any thing more than what the fine shall be fixed at; which is uncertain and future. The concluding words of the security-bond, and to do and perform such things as shall be required. by the said Court," mean putting in bail to a new action, pleading within a limited time, putting the plaintiff in the same condition, and such like matters. And it should be considered, how the law stood in civil cases, before this Act of Parliament; and that no bail could then be taken on a Capias utlagatum. Vide 13 C. 2. stal. 2. c. 2. § 4. What I have been saying, may throw some light upon this Act of Parliament. But I confine my opinion, to its being an outlawry after conviction in a criminal case : which can not be a case within this Act of Parliament. If a defendant is taken upon a capias pro fine (or pro redemptione,) it is an execution; and no sheriff can take bail of him: it is a favour, if the Court does it. By 5 E. 3. c. 12. no pardon for an outlawry shall be granted, till the chancellor is certified that the plaintiff is satisfied of his damages. In a criminal case, if the party be convicted, and a Capias ad 'Satisfaciendum issues, and he is taken upon it, he is in execution, to make satisfaction; and the sheriff can never foretell, before the Court have given the final judgment, what that satisfaction is to be, on which he should admit the defendant to bail, on the Capias ullagatum he has nothing to direct himself by. No clause of this Act can be put in execution, on an outlawry upon a conviction in a criminal case. Therefore I am of opinion, that the present case is not within it. Mr. Justice ASTON-I am of the same opinion. I think, this Act of Parliament relates only to civil actions: this is evidently the true spirit of it. It can't be imagin 1770.. REX V WILKES. [ 2541 ] 1770. REX V. WILKES. ed, that the Act can mean to allow of a defendant's ap pearing by attorney, in cases where the defendant is obliged to appear personally and can't appear by attorney at all neither, can it extend to taking bail in cases not bailable. But surely it can not extend to cases of criminal misdemeanours, after conviction; because, in such cases, a defendant is not intitled to be bailed at all. Outlawries after conviction are very different from the case of outlawries for non-appearance upon mesne process. After conviction, there is no case where it has been holden that the defendant has a right to be admitted to bail. In an outlawry after conviction for Misdemeanour, no sheriff could take bail: and consequently this act could not have any such case in view, or be meant to extend to it. Mr. Justice WILLES-It is clear that the defendant has no right to demand being admitted to bail. This is an outlawry after conviction. If it should be granted that he is intitled to be bailed upon the outlawry, yet as he stands convicted of the crime, he must be committed upon the conviction. This Statute is indeed as obscure a one as any in the Statute-Book: it is difficult to ascertain its true meaning. Therefore I don't choose to give any direct opinion about its extent; unless it should become absolutely necessary for me to do so. As the present case arises upon an outlawry after conviction, it is clearly not a case within this Act of Parliament. In treason and felony, outlawries were convictions of the fact and therefore they are particularly excepted out of this Act. But outlawries in cases of misdemeanour are not convictions of the fact; yet after actual conviction of a misdemeanour, the defendant is not intitled to bail; whether he be or be not outlawed. Even in a civil action, a person outlawed after judgment could not have a pardon, till payment of the debt. In the present case, it would be merely nugatory, to discharge the defendant upon giving bail to prosecute his writ of error upon the outlawry, when we must immediately commit him upon the [2542] conviction. How can the Sheriff know, at the time of the defendant's being taken upon the Capias utlagatum, whether the Court will at all admit of special bail, or not? or if they should, how shall the sheriff know in what sum it shall be? Or, if he should be fined, what will be the amount of his fine? Clearly an outlawry after conviction of a misdemeanour is not within this act; whatever else may be within it. THE COURT having thus declared their unanimous opinion "that Mr. Wilkes, under his present circum"stances of standing convicted of a criminal misdemea |