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 vì 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, upless specifically given, or necessarily to be inferred.* 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.t 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 12 years of age can be Persons unoutlawed, because that was the earliest age at der 12 years of age. which they could be sworn to their allegiance in the Torn or Leet, Outlawry in treason gives the forfeiture of Forfeiture. the lands to the King, but in felony to the lord of * 2 Hawk. c. 27. † 4 Burr. R. 2557. whom they are immediatly holden. But the bare judgment, without the return thereof of record, Proceedings gives no escheat. But it must be returned by after the the Sheriff, with the writ of exigi: Or, it must judgment in Sheriff's 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.* Court. 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 ones may do it by his Attorney. After a reversal of Outlawry, the Party is restored to his former rights.† 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, for which various reasons might be assigned, but for which one is suf. ficient; viz. that, for the generality of accusations preferred before that tribunal, the defendant is in the actual, or virtual, custody of the Court, previous to the indictment being presented. * 2 Hale's Hist. 206.-1 Inst. 288. "THE King," says a celebrated commenta- Pardon, tor on the English Laws, "is the proper per-g whence flowson 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 authority in And it seems to be a settled rule, that the Extent of King may pardon any offence whatsoever after the King's it is committed, whether it be against the com-granting mon, or statute, law, so far as the public is con- pardons. cerned in it, and this either before the attainder, sentence, or conviction, or after.† But it seems agreed, that 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.‡ * 1 Black. Com. 269. † 2 Hawk. c. 37. Ibid. And barring actions. PARDON; 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."* If one be bound by recognizance to the King, to keep the peace against another by name, and generally to all other lieges of the King; in this case before the peace be broken, the King cannot pardon or release the recognizance, although it be made only to him, because it is for the benefit and safety of his subjects.† 1 Neither can the King, by any charter whatsoever, bar any right of entry or action, or any legal interest or benefit, actually vested in the subject; and therefore it seems clear, that he cannot bar any action on a statute by the party grieved-Nor even a popular action commenced before his pardon; for after an ́action popular is brought, the King can but discharge his own part, and cannot discharge the informer's part; because by bringing of an action, the informer has an interest therein.+ * 1 Wm. & Mar. Sess. 2. c. 2. † 3 Inst. 238. 2 Hawk. c. 37. Yet, before the action is brought, the King may discharge the whole (unless it be provided to the contrary by the act), because the informer cannot bring an action or information originally for his part only, but must pursue the statute.* Neither can the King pardon, where pri- And staying prosecutions vate justice is principally concerned in the prosecution of offenders. And there are also, in some cases, even where the King is sole party, some things which he cannot pardon; such as common nuisances for not repairing highways, or the like: for although the prosecution for redress and reformation thereof is in such cases vested in the King only, to avoid multiplicity of suits; yet this offence itself savours more of the nature of a private injury to each individual in the neighbourhood, than of a public wrong; and therefore it is settled, that the King cannot pardon either the nuisance, or the suit for the same, because such pardon would take away the only means of compelling a redress of it.† Thus much is all that has been thought necessary to be introduced on the constitutional right of the crown to grant pardons generally. On the other points of view, in which so prolific a subject may be considered, the only dif * 3 Inst. 231. † 4 Black. Com. 398. |