the right. As well, indeed, might an offender, who comfeffed, the fact in court, by pleading guilty to the indictment, after fentence complain that the had not a trial by jury. By refufing to take his trial, he tacitly feems to have admitted himfelf guilty. 2 Hawkins ƒo 170 Chap.23.ʃeec. 53. 2 Hale 208.
Fiƒth. We conceive, all the authorities and precednets of outlawries in capital cafes at common law in England, as applicable to the prefent cafe; there being no difference, but in the form and number of proceeding to the outlawry, which it made by the before-mentioned Act of Affembly.
In particular we would refer council to 4 Burr. 2527 and to 2577, where almoft all the authorities are collected together and fully confidered.
Sixth. In the Act for the advancement of juftice, &c. ʃec. 17. the Legiflature have declared, ‘‘ that the party indicted of a capital offence, not yielding his body to the fheriff at the return of the capias, fhall be, by the Juftices of the Supreme Court, pronounced outlawed, and attainted of the crime whereof he is fo indicted. And from that time fhall forfeit all his lands and tenements, goods and chattels: which ƒorƒeiture, &c. and for defraying the charges of profecution, trial and execution of fuch criminals.’’ Had the claufe ceafed at the end of the words ‘‘ attainted of the crime whereof he is fo indicted,’’ no doubt remains with us, but that the party was liable to fuffer all the pains of death prefcribed by law for the offence fpecified in the indictment ; and the words following, for far from altering this conftruction, in our opinion, fhew, by the moft neceffary, evident, and ftrong implication, that the party was liable alfo to be executed ; for the expences of the execution are to be defrayed out of his forfeited eftate.—We therefore have no doubt, that Aaron Dean, befides the forfeiture of his eftate, has forfeited his life.
Seventh. We conceive, that, where a perfon is attainted by an Act of Parliament or Affembly, and is brought before the court, and execution awarded, the practice moƒt generally has been to do fo, by pronouncing the exprefs fentence ; and the reafon given for it, is, becaufe no judicial fentence had been pronounced beƒore ; but in the cafe of an outlawry by judicial proceedings only, no exprefs fentence is given upn the party's being brought before the court, but merely an award on the roll, that the fheriff do execution at his peril, or execution awarded by the court ; becaufe a judgment has been given beƒore. Judgments in criminal cafes are divided into two kings—1. By exprefs fentence to the punifhments proper for the crime. 2. Judgments without any fuch fentence. Of the latter there are two kings. 1. Outlawry. 2. Abjuration. Judgment of outlawry in England is given by the Coroner, and is in thefe words, ‘‘ Therefore the faid A. B. by the judgment of the Coroner of our Lord the King of the country aforefaid is outlawed.’’ The party is thereby as much attainted, and fhall forfeit and loofe as
