pended, any justice for the place may order the same to be executed, &c. How time of be computed. wherever the execution of any order of removal, or of any vagrant pass, shall be hereafter suspended, by virtue of the said recited act, it shall be lawful for any other justice or justices of the peace of the county or other jurisdiction, within which such removal or pass shall be made, to direct and order that the same shall be executed; and to direct the charges, to be incurred as aforesaid, to be paid, and to carry into execution any such amended orders as aforesaid, as fully and effectually to all intents and purposes as the said respective powers and authorities can or may be executed by the said justices who shall make any such order of removal, or by the justice who shall grant any such pass as aforesaid." When the execution of any such order of removal shall appealing shall be suspended, the time of appealing against such order shall be computed according to the rules which govern other like cases, from the time of serving such order, and not from the time of making such removal under and by virtue of the same. suspended in And" in order to avoid any pretence for forcibly separating husband and wife, or other persons nearly connected with, or related to each other, and who were living together as one family at the time of any order of removal made, or vagrant pass granted, during the dangerous sickness or other infirmity of any one or more of such family, on whose account the execution of such order of removal, or vagrant pass was suspended;" it is Order of removal enacted, "That where any order of removal, or vagrant case of sickness, pass, shall be suspended, by virtue of this, or of the said recited act, on account of the dangerous sickness or other infirmity of any person or persons thereby directed to be removed or passed, the execution of such order of removal, or vagrant pass, shall also be suspended for the same period with respect to every other person named therein, who was actually of the same household or family of such sick or infirm person, or persons, at the time of such order of removal made, or pass granted.' may be extended to other persons of the family. Justice, when to take his report it. "And whenever it shall happen that any pauper is by examination and age, illness, or infirmity, unable to be brought up to a petty session to be examined as to his or her settlement, it shall be lawful for any one magistrate acting for the district where such pauper shall be, to take the examination of such pauper, and report the same to any other magistrates acting for the said district, and for the said magistrates upon such report, to adjudge the settlement of the said pauper, and make, and suspend, the order of re Settlement to be adjudged on such report. moval as fully and effectually to all intents and purposes, as if the said pauper had appeared before the magistrates." seers' accounts. 6. Of costs of appeal against accounts of parish officers. Costs on appeals -It has been observed before, that the statute 43 Eliz. against overgives an appeal, indefinite in point of time, to the quarter sessions against overseers' accounts; and that the 17 Geo. 2. c. 38. gives a similar appeal, but confines it to the next session, and accompanies it with an authority to order costs to either party. And 50 Geo. 3. c. 49. which gives an additional se- Special session curity against the incorrect, or undue, accounts of to be holden to investigate the churchwardens and overseers, by directing that a special accounts. session shall be holden for investigating such accounts, and gives such churchwardens and overseers an appeal Appeal with against any reductions or disallowances made by such jus- costs. tices in special session, to the next general or quarter session of the peace, directs also, that the justices in such general or quarter sessions of the peace, shall, if they think fit, make an order that such churchwardens and overseers shall have the costs by them incurred defrayed out of the poor rates of the parish or place. The Court have, under the vagrant act, express power Costs in other to grant costs to parties bound over by a justice to support cases. a conviction against a party convicted as an incorrigible rogue, on the trial of an appeal against such conviction. (h) And under the 9 Geo. 4. c. 61. where peace officers are bound to prosecute at sessions parties charged with a third breach of the terms of their licenses, their expences are to be paid out of the county rates. And by the same act, the expenses of justices, whose acts are appealed against and reversed, may, if the Court see fit, be paid from the same source. § 5. OF OUTLAWRY. Outlawry is a punishment inflicted on a person for What it is. contempt and contumacy, in refusing to be amenable to the justice of that Court which hath lawful authority to call him before them; and as this is a crime of the highest nature, being an act of rebellion against that state or community of which he is a member, so does it subject the party to divers forfeitures and disabilities. But the law distinguishes between outlawries in capital of different cases, and those of an inferior nature; for an outlawry in descriptions. treason and felony is of itself an attainder, and subjects the party to such an award thereupon, to be made by the (h) 5 Geo. 4. c. 83. s. 9. Execution. Names to be certified. Effects of it. From what jurisdiction process of outlawry is to issue. Court where he is brought, as is provided for the offence for which he is indicted and outlawed; for the law interprets the party's absence a sufficient evidence of his guilt, and without requiring further proof or satisfaction, accounts him guilty of the fact; on which ensue corruption of blood, and an absolute forfeiture of his whole estate real and personal; and many men who never were tried have been executed upon the outlawry. (i) And if a man be indicted before justices of the peace, and thereupon outlawed, and be taken, and committed to prison, the justices of gaol delivery may award execution of this prisoner, for they are constituted to deliver the gaol. (j) And by the statute 34 Hen. 8. c. 14. the clerks of the crown, clerks of assize, and clerks of the peace, are to certify into the King's Bench the names of all persons outlawed, attainted, or convicted; and upon letters from the justices aforesaid, certificates shall be made of such persons to the justices of gaol delivery. Though an outlawry be an attainder, and equal to a conviction, or sentence by verdict or confession, it does not subject the party to any severer puishment than the crime does for which the outlawry was pronounced; and therefore, if it be in a crime for which clergy was allowable before its abolition, the party outlawed should be allowed his clergy, in the same manner as he who is convicted by verdict or confession. (k) It is said by Blackstone, that any person may arrest an outlaw on a criminal prosecution, either of his own head, or by writ or warrant of capias utlagatum, in order to bring him to punishment. (1) It is clear that the courts at Westminster may issue process of outlawry, and that the Court of King's Bench, either upon an indictment originally taken there, or removed thither by certiorari, may issue process of capias and exigent into any county of England, upon a non est inventus returned by the sheriff of the county where the party is indicted, and a testatum that he is in some other county. And also justices of oyer and terminer may issue a capias or exigent (and so proceed to the outlawry of any person indicted before them), directed to the sheriff of the same county where they hold their session, at common law; and by the statute 5 Ed. 3. c. 11. they may issue process of capias and exigent to all the counties of Eng (i) Co. Lit. 128; 4 Burr. R. 2549. (j) 2 Hale, 35. land, against persons indicted or outlawed of felony before them. (m) But justices of gaol delivery, it has been said, cannot regularly issue capias or exigent, because their commission is to deliver the gaol of the prisoners therein being, so that those whom they have to do with are always intended in custody already. (n) proceed to out And justices of the peace in their sessions may proceed Justices may to outlawry in cases of indictment found before them, lawry. and that by the common law; and also in cases of popular actions by the statute of 2 Jac. 1. c. 4. But it is said that they cannot issue a capias utlagatum, but must return the record of the outlawry into the King's Bench, and there process of utlagatum shall issue. (0) Nevertheless, it has been holden by high authority, that if one be outlawed before justices of peace upon an indictment of felony, they may award a capias utlagatum; for they that have power to award process of outlawry, have also power to award a capias utlagatum, as incident to their authority and jurisdiction. (p) The exigent, which is the immediate precursor of out- Exigent what. lawry, is a writ which lies in actions personal, where the defendant's person cannot be found, nor goods within the county to be distrained: also, in indictments of treason or felony, where the party is not forthcoming, and on all indictments for trespass vi et armis, and all offences of a higher nature, but not on those of an inferior kind. It does not lie on any offence created by statute, unless specifically given, or necessarily to be inferred. (q) This process lies also on informations, even though for offences in which there is no actual force, as libels and the like; for the force is not the criterion, but the enormity of the offence. (r) The writ is directed to the sheriff to proclaim and call the defendant five county court days, one immediately following the other, charging him to appear upon pain of outlawry. If he come not at the last proclamation, he is said to be quinquies exactus, and is then outlawed. No person under twelve years of age can be outlawed, Persons under because that was the earliest age at which they could be 12 years of age. sworn to their allegiance in the torn or leet. Outlawry in treason gives the forfeited lands to the Forfeiture. King, but in felony to the lord of whom they are immediately holden. But the bare judgment, without the (m) 2 Hale, 198. (0) Dalt. c. 192; 2 Hale, 52. (n) Id. ibid. Proceedings after the judg return thereof of record, gives no escheat. But it must be returned by the sheriff, with the writ of erigent: or, it ment in sheriff's must be removed by certiorari; for the county court not being a court of record, the judgment given by the coroner in it is not matter of record. (s) court. Reversal. Rights restored. Pardon, whence proceeding. Extent of the All outlawries may be reversed by the defendant coming in upon the capias utlagatum, and pleading errors either of fact or law. If it be in a criminal matter, he must plead in person; but in civil cases may do it by his attorney. After a reversal of outlawry, the party is restored to his former rights. (t) And this is all that it is thought necessary to submit on this subject, the proceeding to outlawry being out of the ordinary course of practice at sessions. § 6. OF PARDON. "The King," says Mr. Justice Blackstone, “is the proper person to prosecute all public offences and breaches of the peace, being the person injured in the eye of the law. And hence arises also another branch of the prerogative, that of pardoning offences; for it is reasonable that he only who is injured should have the power of forgiving." (u) And it seems to be a settled rule, that the King may King's authority pardon any offence whatsoever after it is committed, in granting whether it be against the common or statute law, so far as the public is concerned in it, and this either before the attainder, sentence, or conviction, or after. (v) pardons. And releasing But the King cannot, by any previous licence, pardon, or dispensation, make an offence dispunishable, which is unlawful in itself, as being either against the law of nature, or so far against the public good, as to be indictable at common law; and that a grant of this kind is plainly against reason and the common good, and therefore void. (w) It is also expressly enacted by statute, that "no dispensation by non obstante of, or to, any statute, or any part thereof, shall be allowed; but that the same shall be void and of none effect, except a dispensation be allowed in such statute." (x) If one be bound by recognizance to the King, to keep recognizances. the peace against another by name, and generally to all other lieges of the King, in this case, before the peace (s) 2 Hale, 206. (t) Co. Lit. 288; Hawk. b. 2. c. 30. (v) Hawk. b. 2. c. 37. 1 W. and M. sess. 2. c. 2. (u) 1 Bla. Com. 269. |