tach his body by writ, or by precept, which is called a capias; and if he return that the body is not found, another writ or precept of capias shall be immediately made returnable forthwith, in which the sheriff' shall also be commanded to seize his chattels and safely to keep them; and if he return that the body is not found, and the indictee cometh not, an exigent shall be awarded, and the chattels shall be sequestered; but if he come and yield himself, or be taken before the return of the fourth capias, the goods and chattels shall be saved to him; otherwise they shall go, descend, and pass in like manner, as is by law directed in case of persons dying intestate. 1 Rev. Code, ch. 74, sect. 5, p. 103, & sect. 31, p. 106, 5. If the defendant be taken upon the writ of a capias, or appear upon the return thereof, or of the exigent, the practice hath been (in some cases) to award a venire facias, directed to the sheriff of the county where the offence was committed, and returnable some certain day in the same term (or in the next term, if there be not time enough for the trial to be had in the same term) commanding him to summon a jury of freeholders of his county, qualified as the law directs, to appear on a day therein prescribed, to serve as jurors for the trial of the accused. And the clerk issues subpanas for the witnesses, as well for the prisoner, if he have any, as for the commonwealth, to attend the trial at the same time. And this practice may now be considered as settled, having received the sanction of the general court, in Thomas Blakeley's case. Note 7 to 4 Tucker's Blackstone, 320. 6. In the case of the commonwealth against M-Clenegan (which was adjourned from the district court of Morgantown to the general court) the court was unanimously of opinion, that where an indictment of presentment is found by a grand jury against any person, for a misdemeanor, to which the law has affixed an infamous or corporal pu nishment, that the court before whom such presentment or indictment is found may, in its discretion, award a capias in the first instance; and that, upon indictments and presentments of an inferior nature, such court ought, after two venire facias's have been returned not found, to award a capias. 3 Hen. & Munf. 575. 7, The ordinary processes upon all indictments for crimes of an inferior nature, that is, under the degrees of treason, felony, or mathem, are as follow: First, if the offender be absent, a venire facias, which is but in the nature of a summons to cause the party to appear, shall be awarded, except where other process is directed by some statute. Haw. B. 2. ch. 27, sect. 9. 8. If it appear by the return of such venire, that the party hath lands in the county, whereby he may be distrained, the distress infinite shall be awarded from time to time, till he doth appear; and by force thereof he shall forfeit on every default so much as the sheriff shall return upon him in issues. But if a nihil be returned on such a venire, then three capias's, that is, a capias, alias, and pluries, shall issue. (Ibid. See ant. div 6.) But a capias is the first process on all indictments of treason or felony. Haw. B. 2. ch. 27, sect. 15." See ant. div. 6. 9. Where the inhabitants of a parish are indicted or presented, the process is first a venire, then a distringas. Crown. Cir, 21. 10. If a defendant appear to an indictment of felony, and afterwards before issue joined make an escape, either from his bail, or from pri son, the common capias, alias, and pluries shall be awarded against him, unless there had been an exigent before, in which case a new exigent shall be awarded. 2 Haw. 285. 11. Concerning the execution of the process, it is laid down as a general rule, that wherever the commonwealth is a party to the suit (as it certainly is to all informations and indictments) the process ought to be executed by the sheriff himself (or any of his lawful deputies) but not by the bailiff of a franchise. 2 Haw. 284. 12. And if the party be in a house, if the doors be shut, and the sheriff (having given notice of his process) demand admittance, and the doors be not opened, he may break open the doors and enter, to take the offender. 2 Hale 202. 13. But no person, on the Lord's day, shall serve, or cause to be served, any writ, process, or warrant, order, or judgment (except in cases of treason, felony, or breach of the peace) but the service thereof shall be void. [See title Sabbath.] 14. It seems to be agreed, that every suit, whether civil or criminal, and also every process in such suit against jurors, ought to be properly continued from day to day, from its commencement to its conclusion, without any the least gap or chasm; and the suffering any such gap or chasm is properly called a discontinuance; and the con tinuing the suit by improper process (as by a capias instead of a distringas) or by giving the parties an illegal day, is properly called a miscontinuance; and if the justices, before whom the matter is depending, do not come on the day to which it is continued, it is said to be fut without day, and cannot be revived without a re-summons or reattachment. (Haw. B. 2. c. 27, sect. 89.) Now process may be discontinued several ways. As, 1. Where the second is not tested on the very same day on which the first is returnable. 2. Where there is a sessions intervening between the teste and the return of a capias, that the defendant may not be imprisoned an unreasonable time. But it is no objection to an exigent, that it is not returnable the next sessigns, because it must allow time for five counties to be holden between its teste and return. 3. Where, after issue or demurrer, the court gives the party a day to a distant sessions, without making any continuance to that immediately following. 4. Where the sessions to which the suit is continued is adjourned, and the suit is not adjourned accordingly. 5. Where any of the parties are described in any continuance of the suit, whether on the roll or by process, by a name or addition variant from those in the original, though only in one letter. 6. Where a venire or distringas are issued, without any award on the roll to warrant them. 2 Haw. 298, 299. And it seems generally to be taken as an undoubted principle, that a discontinuance, by suffering a total chasm in the proceedings, whether on the roll or in the process, by not giving a fresh continuance instantly upon the determination of the precedent, shall never be aided by any appearance or pleading over. But it is holden by the greater number of authorities, that if the original be good, and the defendant present in court, he shall be compelled to answer to such original, let the process whereon he came in, or the execution of it, be never so erroneous or defective, so that it never were discontinued; for the end of process is to compel an attendance, and the end being served, and a legal charge appearing against the defendant, no way discontinued, the law will not so far regard a slip in the process, as to let the defendant out of court, in order only to have him brought in again in better form. 2 Haw. 300. 15. The processes as well of capias as of outlawry may be stayed by a supercedeas issuing from other justices (out of sessions) testifying that the party hath come before them, and hath found sureties for his appearance to answer to the indictment, or pay his fine. Dalt, c. 193. 16. Judgment of outlawry is given by the coroner at the fifth county court, upon the parties not appearing to the exigent (which is a writ commanding the sheriff to cause the defendant (exigi) to be demanded from county court to county court, until he be outlawed.) And such judgment is entered thus, Therefore by the judgment of the coroners of the commonwealth, of the county aforesaid, he is outlawed. 2 Haw. 446. 17. The word outlaw (utlaghe) utlagatus cometh not immediately from the Latin lex, but is derived to us through the Saxon laga, which signifieth law. And a person outlawed signifies one that is out of the protection of the commonwealth, and out of the aid of the law. 4 Burn's Just. 53. 18. And a man that is outlawed is called outlawed, but a woman who is outlawed is called waived, and not utlagata; for that women are not sworn in leets or tornes, as men who are at the age of twelve or more are; and therefore men may be called uṭlagati, that is, extra legem positi, but women are waviate, that is, derelicte, left out, or not regarded, because they were not sworn to the law; wherein it is to be noted, that of ancient time a man was not said to be within the law, that was not sworn to the law, which is intended of the oath of allegiance in the leet. (1 Inst. 122.) And hence it is, that a woman under the age of twelve years cannot be outlawed. Inst. 122, 19. Process of outlawry lies in all indictments of treason or felony, and on all returns of a rescous; and also, on all indictments of trespass with force and arms; and it seems probable that it lies on an indictment of conspiracy or deceit, or any other crime of a higher nature than a trespass with force and arms; but not on any indictment for a crime of an inferior nature. And it seems agreed, that it lies not on any action on a statute, unless it be given by such statute, either expressly or impliedly, as where a recovery is given by an action wherein such process lay before, as on a writ of trespass for a forcible entry, because the statute expressly gives a recovery by such a writ, and such process lies in it by the common law, 2 Haw. 302, 303. 20. If there are two coroners in a county, or more, one may execute the writ, as in case of an exigent, but the return must be in the name of the coroners. 2 liale 56. 21. And the return of the outlawry must be certain; it must shew where the county court was held, and in what county; and must return the day and year to every exactus. 2 Hale 203. 22. And also, the sheriff's name and office must be subscribed to the return of the exigent. 2 Hale 204. 23. If a person be outlawed at the suit of one man, all men shall take advantage of this personal disability. 1 Inst. 128, 24. But such disability abateth not the writ, but only disableth the plaintiff, until he obtain a charter of pardon. I Inst. 128. 25. Upon outlawry in treason or felony, the offender shall lose and forfeit as much as if he had appeared, and judgment had been given against him, as long as the outlawry is in force. 2 Haw. 446. 26. But the outlawry for a misdemeanor doth not inure as a conviction for the offence, as it doth in cases of treason and felony ; but as a conviction of the contempt for not answering, which contempt is therefore punished, not by fine as a conviction for the offence, but by forfeiture of goods and chattels for the contempt. 2 Salk. 494. 27. In ancient times no man could have been outlawed but for felony, the punishment whereof was death; and upon this account an outlawed man was called wolfeshead. because he might be put to death by any man, as a wolfe, that hateful beast might. But in the beginning of the reign of K. Edw. III. it was resolved by the judges, for avoiding of inhumanity, and of effusion of christain blood, that it should not be lawful for any man but the sheriff, having lawful warrant, to put to death any man outlawed, though it were for felony, and if he did, he should undergo such pain of death as if he had killed any other man; and so the law continueth to this day. 1 Inst. 28. 28. Where clergy is allowable, it shall be as much allowed to one who is outlawed, as to one who is convicted by verdict or confession. 2 Haw. 343. 29. But a statute taking the benefit of clergy from those who shall be found guilty, doth not thereby take it from those who are outlawed. 2 Haw. 343. 30. Where a person is outlawed, the defendant may shew alk the matter and outlawry returned of record, and demand judgment, if he shall be answered, because he is out of the law, to sue an action during the time he is outlawed. 1 Inst. 128. 31. It seems to be a good challenge of a juror, that he is outlawed, either for a criminal matter, or, as some say, in a personal action; but not a principal challenge, but only to the favour, unless the record of the outlawry be produced. 2 Haw. 215, 417. 32 But it seems clear, that outlawry in a personal action is not a good exception against a witness, as it is against a juror. 2 Haw. 443. 33. An outlawed person may make a will, and have executors or administrators. Cro. El. 575. 34. And an executor may reverse the authority of the testator, where he was not lawfully outlawed. 1 Leon. 325. 35. Outlawry may be reversed several ways; as by procuring a supersedeas, and delivering it to the sheriff before the quinto exactus, or by shewing any mattter apparent on record, which makes the outlawry erroneous, as the want of an original, or the omission of process, or want of form in a writ of proclamation, or a return by a person appearing not to be sheriff, or a variance between the original and exigent or other process, or by a misnomer, or want of addition. 2 Haw. c. 50. 36. And upon a writ of error upon an outlawry in felony, the party outlawed must render himself in custody, and pray the allowance of the writ of error in person; and if the outlawry be reversed, he shall be put to answer the indictment. 2 Hale 209. QUARANTINE. QUARANTINE is a space of forty days; thus wher ethe law says a widow shall remain in her husband's capital mansion-house forty days after his death, during which time her dower shall be assigned her, these forty days are called the widow's quarantine. So where persons coming from infected countries are obliged to wait forty days, before they are permitted to land; this is called performing quarantine. 2 Bl. Com. 135. The regulations prescribed by the laws of this commonwealth for performing quarantine, containing nothing which relates particularly to the office of a single magistrate, it will be sufficient in this place to refer to the laws on that subject. See 1 Rev. Codes ch. 129. p. 244. Ibid. ch. 159, p. 313. Ibid. ch. 194, p. $49. RAPE. I. What it is, II. Evidence on an indictment of rape. III. Punishment of rape. IV. Principal and acces sary. I. WHAT IT IS. RAPE is an offence in having unlawful and carnal knowledge of a woman, by force, and against her will. But it is said, that no assault upon a woman, in order to ravish her, however shameless and outrageous it may be, if it proceed not to some degree of penetration, and also of emission,* can amount to a rape; however it it said that As to the necessity of emission, there seems to be much doubt, the greatest judges differing in opinion on the point; a majority, however, seem to favour the above doctrine, that there must be both penetration and emission. See 1 East's Gr. L. 436. et seq. where the cases are very well reviewed. |