1770. REX. V. are not, after so great a length of unquestioned usage, to be now impeached. And it is observable on the 18 Edw. 3 st. 1. that it not only clearly relates to a proceeding before judgment; but it gives the exigent, it the ⚫5 Mod. 463. Party is not brought in on an attachment or distress. However, there is no need to resort to that kind of reasoning; when usage supports the capias, in the present case, as the common process upon these occasions. WILKES 464. [2558 ] Third objection under the first error assigned-" that "outlawry does not lie, from the nature of the offence." This objection was slightly touched by Mr. Serjeant Glynn; but struck us, at first, as a point fit to be considered; and I mentioned to the bar, that it might be << proper to look into it." The doubt was," whether "the offence charged in either of these informations was "such as rendered the person accused of such crime "liable to the process of outlawry, either at common-law << or by any statute." In Coke Littleton 128. b. it is said "that in the reign of King Alfred, and till a good while "after the conquest, no man could be outlawed but for "felony; the punishment whereof was death; but after, "in Bracton's time and somewhat before, process of out"lawry was ordained to lie in all actions that were quare "ci et armis, which Bracton calls delicta, for there the "King shall have a fine." The 18 Edw. 3 st. 1. declares the cases and offences for which the exigent shall be awarded, if the party cannot be found or brought in by attachment or distress; and not against any other. Also, the 18 Edw. 3. st. 2. c. 5. says-no exigent shall from henceforth go out, where a man is indicted of trespass; unless it be against the peace, or of things "which be contained in the declaration made in that "case at the last Parliament." But upon full consideration, I am very well satisfied that the counsel for the defendant judged right in laying no stress upon this objection. The offences laid in these informations, and the proceedings upon them, are at the common-law. The statutes giving process of outlawry in certain cases, and restricting its issuing in others but under certain circumstances, do not affect the present question: the process is warranted, in the present case, by the common-law, not at all. Actual force or violence does not appear to be the criterion upon which the process of outlawry was founded. The greatness of the crime, and the severity of the punishment seem to be the material circumstances originally attended to, in founding this process; according to the passage I have just cited from Coke, as to the earliest times for, felony does not imply or convey the idea of actual outrage; grand larceny being in its definition, as well as practice, different. And Hawkins con or 1770. REX v. WILKES. Hawkins firms this notion, by saying "that this process probably day for all crimes of a higher nature than trespass "vi et armis." The extension of this process is supposed by Lord COKE, in the passage I quoted, (and what he says, is repeated, without examination, by a variety of authors,) to have been somewhat before Bracton's P. C. L. 2. time. The establishing that period, for a supposed ordi- c. 27. p. 302. nance concerning outlawries, strongly authenticates the testimony of that cotemporary writer, touching the cases in which, and under what circumstances this process lay, Lord COKE saw, that it was impossible to say "that "outlawry did not lie for any crime under felony :" universal practice shewed the contrary. So he supposes a positive statute made about Bracton's time. There does not appear any particular ordinance for extending this process; and there is no authority for the supposi tion. But Bracton (who wrote in the reign of Henry the 3d.) says" that it lay in omni transgressione quæ + Lib. S, 'fit contra pacem," and afterwards, "pro omni trans"gressione, licet minima, ubi quis ad pacem Domini Regis p. 127.b cocatus, venire recusaverit, et hoc propter contuma"ciam." That this necessary ingredient" contra pacem" did not mean positive force in the committing of the offence, appears from the reason given why it lay for felony, 2 Ro. Abr. 805. "Outlawry lay for felony; "because it was contra pacem." For, that could not mean, (as I have already said) more than its being an offence in its nature against the laws of society, and a disturbance of that good order and government which keeps a state in unity and peace. The crime of larceny, in its very nature, is secret and fraudulent, unless it be done with open violence; and then it is distinguished by the aggravated name of robbery. Besides, in the case of writs quare vi et armis, (in which cases this process is given,) it is acknowledged to be on account of the sup posed, not the actual force. And so is the same place in 2 Ro. Abr, 805. and the 35 H. 6. 6, and and many other books. In fact, therefore, it appears from Bracton, "that every offence committed against the peace subjected "the delinquent to the process of outlawry," And the cases shew, that the peace of the King is broke by disorders without force. And indeed some of the greatest crimes are without force. Ir force was the criterion on which this process of exigent was founded at commonlaw, why was that process given by the first statute of st. 1. Edward the 3d. in the case of riots, &c. ? Or what occasion had there been for the subsequent statute of Edw. st. 2. c. 5. the 3d. to say-" From henceforth, it shall not issue in trespass, unless it is against the peace," if the practice had not been, upon indictments, though not so alledged, 66 b + 18 Edw, S. 18 Edw. 3. 1770. REX V. : for process of exigent to issue? And that seems to be true reason of the last restrictive statute. I don't find it ever was denied, but that upon a presentment or indictment for the King, process of outlawry lay and so it is WILKES. expressly said to be agreed, in Brooke title "exigent;" which cites 8 H. 6.* But a number of outlawries have been found, in crimes laid to be contra pacem, without ci et armis, and which could not be committed with force, and this error never assigned: which, alone, is decisive. I think, Mr. Attorney-General produced one as far back as the 5th Edward the 4th. . Vide Bro. Exigent and and Title Process, pl. 16. : The return says "I have caused public proclama"tion to be made, in manner and form as I am withi "commanded." This is certainly too loose the proclamations are not sufficiently set out, for the Court to judge whether they were properly made or not. I thought this error fatal. But Mr. Thurlow satisfied me "that "it was unnecessary to make ANY proclamation at all." The statutes which require proclamations do not extend to this case and they are not required by the commonlaw. Indeed, this error was in a manner dropped and given up by Serjeant Glynn, upon his reply: he did not contend that they were necessary." The present record, drawn in the Crown-Office and settled by the King's counsel, shews under what obscurity and perplexity this matter lies: the result of ignorance in the practisers; and productive of a shameful confusion in the precedents of the office. They have not distinguished between civil and criminal outlawries: they have not distinguished between the manner of proceeding to outlaw in criminal cases, before and after conviction. All is jumbled together: whatever is required in any case, they have applied to all. Circumstances are unnecessarily required, and defectively returned; because former mistakes are copied as precedents, without examination. But, as the proclamations, in this case, were nugatory and superfluous, the imperfection of the return is of no consequence it is no error. Of the SECOND SORT of errors, critical and verbal, two are assigned which were argued. 1st. For that it is not shewn, nor does it appear by the return of the Sheriff of Middlesex, "that the defen"dant was a first, second, third, fourth, and fifth time "exacted at the County-Court of the County of Mid"dlesex," as, by the law of the land, he ought to have been, before he was outlawed. UNDER this error thus assigned, two objections were made: as to the first exaction; and as to the subsequent. First. As to the first-The return is by two men, sheriff of Middlesex: "at my County-Court, held, &c." So that two men, making one officer, that is, Sheriff of the County of Middlesex, say "at my Court held in the County of Middlesex." To raise a doubt, it is ne cessary to go out of the record, into history and law, We know from thence, that the same man might be Sheriff of two counties. Till the 13th of Elizabeth, one person was Sheriff of Somerset and Dorsetshire; and so of Sussex and Surrey; of Oxford and Berks; of Nottingham and Leicestershire and to this day, the same person is Sheriff of Cambridge and Huntingdonshire. Such a Sheriff might by law hold in either, the CountyCourt of the other. 6 H. 7. 15. In the case of the Sheriff of Somerset, who was then also Sheriff of Dorsetshire, my Court in the County of Somerset" was adjudged uncertain. 11 II. 7. 10. in a like case, Rede Fairfax and Hussey inclined to think it certain enough; and adjourned the consideration. But here it is impossible to raise a doubt. Unless the Sheriff of Middlesex may hold the Court of another County in Middlesex, “at my County-Court" can only be the County-Court of Middleser. Two men, Sheriff of Middlesex, never were nor could be Sheriff of any other County. The error is not assigned, for want of any technical form of words; but that it is not shewn, nor does it appear by the "return" whereas I am of opinion it is shewn, and does appear by the return, that the County-Court was of Middlesex, and could not possibly be the Court of any other County. Secondly-As to the subsequent exactions-The objection is that it is not shewn, nor does it appear, where "the Court was held, at which he was exacted." The return, having specified the place where the Court was held at which he was first exacted, states severally the subsequent exactions, "at my Court held at the same place." So that the whole doubt is "whether the "same place includes the description of the place re"ferred to:" which cannot be a doubt, in any language of the world. For, in truth, the doubt can be no other than whether the same place means the same place, "that is, the place before described." SECOND critical error. The only other error assigned and argued, is "It is no where expressly shewn, that the place cal"led Brook-street, where the several County-Courts are "supposed to have been held, is in the County of Mid"dlesex." The return says-" At the house known by "the sign of the Three Tuns in Brook-street near Holborn in the County of Middlesex." The counsel for 1770. REX V. WILKES, 1770. REX V. WILKES. [See 16 Vin. 208. Dyer 376. a 2 H. H; P. E. 203. 16 Vin. 210. pl. 17.] [2d Letter to Almon in P. 134, 183.] 66 the defendant contend, that the true construction ought to be, to apply in the County of Middlesex," to Hol born, and not to Brook-street; and so make a stop, at Brook-street. It is impossible for me to doubt whether "near Holborn' is not part of the description of Brookstreet. It could be added for no other reason: it could answer no end, to say "near Holborn," but as part of the name or description of this Brook-street, in contradistinction to some other Brook-street. It is immaterial, what County Holborn is in: but the Sheriff was bound to shew that Brook-street was in Middlesex. There is no law in this it is a question of construction. All men can judge of it; and would treat with contempt the judgment of this Sovereign Court, if it could be founded upon so pitiful a prevarication. It is not permitted to me to say "I doubt of the construction," unless I do doubt; how much soever I may wish that this outlawry should not stand. I am of opinion, that, according to the letter, sense, and grammatical construction of the sentence, the Court was held in "Brook-street near Holborn, and that "Brook-street near Holborn" lies in the County Middlesex; and I am persuaded, there is no man who can think otherwise. THESE are the errors which have been objected; and this the manner and form in which they are assigned. For the reasons I have given, I cannot allow any of them. It was our duty, as well as our inclination, sedulously to consider whether upon any other ground, or in any other light, we could find an informality which we might allow with satisfaction to our own minds, and avow to the world. But here, let me pause ! It is fit to take some notice of the various terrors hung out; the numerous crowds which have attended and now attend in and about the hall, out of all reach of hearing what passes in Court; and the tumults which, in other places, have shamefully insulted all order and govern ment. Audacious addresses in print dictate to us, from those they call the PEOPLE, the judgment to be given now, and afterwards upon the conviction. Reasons of policy are urged, from danger to the kingdom, by commotions and general confusion. Give me leave to take the opportunity of this great and respectable audience, to let the whole world know, all SUCH attempts are VAIN. Unless we have been able to find an error which will bear us out, to reverse the outlawry; it must be affirmed. The constitution does not allow reasons of state to influence our judgments: God forbid it should! We must not regard political con sequences; how formidable soever they might be if re |