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all purposes and in all cases; and especially with regard to new felonies created by statutes which take away clergy from those who shall be guilty in such manner and under such circumstances as are therein particularly set forth, without express mention of aiders and abettors, or any words which manifestly extend to them: whether aiders and abettors also shall be ousted of their clergy in the construction of such statutes. The point is very ably and elaborately argued by Mr. Justice Foster, who thinks that if a departure from the ancient rule had in such cases affected the prisoner's life upon conviction, the judges would still have adhered to

it, notwithstanding the mischiefs by which it was attended. (n) Grounds for

It is allowed on all hands that aiders and abettors have been considering always ousted of their clergy, and properly so, by the construction them as not so of the statutes which oust clergy in murder, robbery, rape, and

burglary.(0) But then it is said that the Legislature in these statutes has made use of terms which at the time when the acts were made, and long before, were well known to include aiders and abettors ; that in these statutes clergy is taken away from the several offences described by legal technical terms of well known signification; namely, murder, robbery, rape, and burglary; and that the objects of these acts are persons convicted of murder, robbery, rape, and burglary; aiders and abettors being, at the time these statutes were made, clearly liable to be convicted as principals in those offences. Whereas in many other statutes aiders and abettors are not once named, nor described by any terms importing that the Legislature intended to oust them.(p)

It certainly appears that in general the judges have been extremely tender in the construction of statutes which take away clergy; and bave in several instances carefully distinguished between the cases of principals in the first and second degrees, the actual perpetrators, and mere aiders and abettors. Thus, in a case upon the statute of stabbing, which enacts, “that every person “ which shall stab or thrust, &c.(9) two persons were present aiding and abetting a third person, who in fact made the thrust, and was denied his clergy; and these persons, though agreed to have been principals in manslaughter at common law, were admitted to their clergy; for it was considered that though in judgment of law every one present and aiding is a principal, yet in construction of this statute, which is so penal, it shall be extended only to such as really and actually made the thrust; not to those who in construction of law only may be said to make it. (r) So in a case upon the statute 39 Éliz. c. 15., against robbery in dwellinghouses, (s) where two persons put a ladder against a chamber

(n) See Mr. Justice Foster's arguments, Fost. 355—360. and 416–430.

(0) 1 Hale 537. 2 Hale 359. Fost.
357. The statutes are, 1 Ed. 6. c. 12.
s. 10. as to murder and robbery; and
18 Eliz. c. 7. as to rape and burglary.

(p) Fost. 357, 358.
(9) 1 Jac. 1. c. 3.

(r) Page and Harwood's case, Fost.
355. Aleyn. 43. Str. 86. I Hale 468.
And the case of the Queen o. Whistler,
Salk. 542. 2 Lord Raym. 842.

(s) The enactment of the statute is, “ that if any person shall be convict" ed for the felonious taking away

in “ the day-time of any money, goods,

or chattels, being of the value of “ five shillings, or upwards, in any

dwelling-house or houses, or any part thereof, or any outbouse, &c. although no person be in the said “ house, &c. at the time of such fe“lony committed," he shall be excluded the benefit of clergy.

window, one of them opened the window, got into the chamber, and stole 401., but the other stood on the ladder in the view of him who entered, saw him in the chamber, assisted in the robbery, and had a share of the booty, but did not enter the chamber; it was held that as he did not enter he should bave his clergy, though plainly a principal aiding and abetting:(t), And the same rule of construction has been held to govern in the case of larceny clam et secretè a personá upon the stat. 8 Eliz. c. 4.,(u) where the person who actually picked the pocket was held to be ousted of his clergy, but not he who was present aiding and abetting ; though without some accomplice ready at hand to take off the booty, this sort of theft could seldom have succeeded. (w)

Upon the two first of these cases Mr. Justice Foster makes the following remarks :-“Why did not a constructive thrust in one

case and a constructive entry in the other operate so as to oust “the accomplices, present and abetting, of clergy? The reason is "plain, and hath been already hinted at; the Judges were upon "the construction of statutes very penal, which were to be taken “ literally and strictly; aiders and abettors are not named or “ described, and therefore could not, as they conceived, be brought “ within the statutes.” (x) And Mr. Justice Foster cites the following passage from Lord Hale as seeming to favour the construction for which he contends :-"An act that makes an offence by name, as rape, &c. to be felony, virtually makes all that are

present aiding and assisting principals, though one only doth " the fact. Though as to the point of clergy in some cases it “ differs ;” (y) and he thinks that the difference which Lord Hale hints at must arise from the different penning of the several acts. (2)

But some of the points insisted upon by Mr. Justice Foster, in Grounds for his able argument, will probably appear to rest upon grounds rather considering too subtle and refined; particularly his distinction between the them as so

. person so offending,” in the statute 9 Geo. 1. c. 22., and person offending in any such offence,” in 25 Hen. 8. c. 6. (a) And it appears that a great majority of the judges differed with him upon this subject. It is stated that they gave great weight to the construction which had been constantly put on acts of parliament touching high treason, and on those which take away clergy from murder, robbery, rape, and burglary; aiders and abettors, though not named in the statutes, having always been brought within the

(1) Rex v. Evans and Finch, Cro. taking of any money, goods, or Car. 473. Hale, in citing this case,

“ chattels from the person of any says that the offence must be a steal- “ other, privily without his knowing in the house; and therefore he “ ledge, shall have benefit of clergy." that steals, or is party to the stealing, This act is repealed by 48 G. 3. c. 129. being out of the house, is not ousted (w) I Hale 529. Rex v. Baynes of his clergy. The law stood thus and Others, 1 Leach 7. Rex v. Mary with regard to this statute, and also and Bridget Murphy, 1 Leach 266. to the 5th and 6th Ed. 6. c. I. against Sterne's case, I Leach 473. an offence of the like kind, till hy 3 (ot) Fost. 357. & 4W. & M. c. 9. aiders and abettors (y) i Hale 704. were expressly ousted. And see as to (z) Fost. 417, 418. this point, pošt, Book IV. Ch. iji. (a) Revived by 5 Eliz. c. 17. See

(u) By which it was enacted, “ that Fost. 417, 422, 423. **no person indicted for the felonious

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compass of them to all intents, and suffered accordingly. (b) And contrary to this opinion they decided upon the 9th Geo. i. c. 22., (by which it was enacted, that “if any person shall unlawfully and "maliciously kill, maim, or wound any cattle, every person so

offending, being thereof lawfully convicted, shall be adjudged

guilty of felony, and shall suffer death, as in cases of felony, “ without benefit of clergy'') that an aider and abettor was ousted of his clergy.(c) And in a subsequent case, called the Coal-heavers' case, seven men were convicted and executed on the same statute, 9 Geo. 1. c. 22, (d) by which clergy was taken away in express terms only from those who maliciously shot at another person, three of them not having discharged a gun or pistol. The Judges determined that this offence was a new created felony; and therefore that it must necessarily possess all the incidents which appertain to felony by the rules and principles of the common law; that the statute did not merely take away the privilege of clergy from an offence which was before known, but ordained that those who were guilty (e) of the thing prohibited by it should be adjudged felons without benefit of clergy; and therefore by a necessary implication made all the procurers and abettors of it principals or accessories upon the same circumstances which would make them such in a felony by the common law; and that it had been long settled that all those who are present aiding and abetting when a felony is committed, are principals in the second degree. (f)

It should be observed, however, that Mr. Justice Blackstone, in his excellent work, adopts, to a great extent, the distinctions endeavoured to be established by Mr. Justice Foster, and lays down the following rules :-That when the benefit of clergy is taken away from the offence, (as in case of murder, buggery, robbery, rape, and burglary,) a principal in the second degree, being present aiding and abetting the crime, is as well excluded from his clergy as he that is principal in the first degree; but that where it is only taken away from the person committing the offence (as in the case of stabbing, or committing larceny in a dwelling-house, or privately from the person,) his aiders and abettors are not excluded, through the tenderness of the law, which has determined that such statutes shall be taken literally. (g) And in a late case the distinction was acted upon in the construction of the 10 & 11 W. 3. c. 23. (now repealed by 1 Geo. 4. c. 117. and 4 Geo. 4. c. 53.) which took away clergy from all who privately stole in a shop, &c. and from all who assisted, hired, or commanded them. The Judges were clear that this took away clergy from a person present aiding and assisting, upon the principle that although a statute taking away clergy from an offender may not include persons present aiding and abetting unless there are words for that

Mr. Justice Blackstone's opinion.

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purpose; yet a statute, taking away clergy from the offender and
all who assist him, includes aiders and abettors present. (a)
When several are present and abet a fact, an indictment or ap-

Indictment peal may lay it generally as done by all, or specially, as done by and abettors.

against aiders one and abetted by the rest. (b) And even in offences in which there could have been only one principal in the first degree, as in rape, a charge against all as principals in the first degree is valid, if there be no difference in the punishment between the principals in the first and those in the second degree; though it should seem that the more correct form in a case of this kind would be to charge the parties according to the facts as they will be proved. (c)

An indictment against the principal in the second degree in murder should shew distinctly that he was present when the mortal stroke was given; and it should seem that it would not be sufficient to state that both of their malice aforethought made the assault; that the principal in the first degree then and there gave the mortal stroke, and so that both murdered : at least it would not be sufficient if, before the allegation that both murdered, it is stated that the one (the principal in the second degree) counselled and incited the other to do the act. (d) III. An accessory before the fact is he who, being absent at the Of accessories

before the fact. time of the offence committed, doth yet procure, counsel, command or abet another to commit a felony.(h) And it seems that those who by hire, command, counsel, or conspiracy, and those who by shewing an express liking, approbation, or assent to another's felonious design of committing a felony, abet and encourage him to commit it, but are so far absent when he actually commits it that he could not be encouraged by the hopes of any immediate help or assistance from them, are accessories before the fact. But words that amount to bare permission will not make an accessory, as if A. says he will kill J. S., and B. says you may do your pleasure for me,” this will not make B. an accessory. (i) And it seems to be generally agreed that he who barely conceals a felony which he knows to be intended is guilty only of misprision of felony, and shall not be adjudged an accessory.(k) The same person may be a principal and an accessory in the same felony, as where Á. commands B. to kill C., and afterwards actually joins with him in the fact. (1)

The offence of an accessory before the fact differs so much from Offence of acthat of a principal in the second degree, that where a person was the fact differs

(a) Rex v. Gogerly, Hil. T. 1818, (1) 2 Hawk. P. C. c. 29. s. 1., where principal in the MS. Bayley. J. Russ. and Ry. 343, it is said also that he may be charged second degree. and post, Book IV. Chap. vii. as principal and accessory in the same

(6) 2 Hawk. P. C. c. 23. s. 76., and indictment; but qu. if this would be c. 25. S. 64.

allowed at the present day. In At(c) Rex v. Vide, Fitz. Corone, pl. kins' case, who was tried for the mur86. Rex v.

Tt. T. 1813. Post, der of Sir E.Godfrey, two indictments Book III. Chap. vi.

from that of

were found against him, one as prin(d) Rex v. Winifred and Thomas cipal, the other as accessory; and he Gordon, 1 Leach 515. 1 East. P. C. was arraigned upon both at the same 352.

time. But the first was abandoned, (h) 1 Hale 615.

and evidence given only in support of (1) 2 Hawk. P. C. c. 29. s. 16. the second : the verdicts appear, how(k) i Hale 616. 2 Hawk. P.C. c. 29. ever, to have been pronounced succes

sively. 7 Howell's St. Tri. 231.

6. 23.

indicted as an accessory before the fact, it was held that she could not be convicted of that charge upon evidence proving her to have been present aiding and abetting ; it being clearly admitted to be necessary to charge a principal in the second degree with being present aiding and abetting. (m)

In a modern case, where one Danelly was indicted for a burglary, and Vaughan as an accessory to such felony and burglary, and Danelly had been acquitted of the burglary but found guilty of larceny, and Vaughan found guilty as accessory, it was objected that as the jury had acquitted the principal of the burglary, the accessory must be acquitted altogether. But as a great majority of the Judges upon a case reserved were of opinion that Danelly was free from any felonious intent, the charge against Vaughan, as

accessory, of course could not be supported. (n) Description of It is to be observed that the Legislature, in statutes made from accessories be- time to time concerning accessories before the fact, has not confore the fact in fined itself to any certain mode of expression ; but has rather

chosen to make use of a variety of words all terminating in the same general idea. Thus some statutes make use of the word accessories, singly, without any words descriptive of the offence: (P) others have the words abetment, procurement, helping, maintaining, and counselling;(9) or aiders, abettors, procurers, and counsellors. () One describes the offence by the words command, counsel, or hire; (s) another calls the offenders procurers or accessories. (t) One having made use of the words comfort, aid, abet, assist, counsel, hire, or command, immediately afterwards, in describing the same offence in another case, uses the words counsel, hire, or command only. (u) One statute calls them counsellors and contrivers of felonies ; (w) and many others make use of the terms counsellors, aiders, and abettors, or barely aiders and abettors. Upon these different modes of expression, all plainly descriptive of the same offence, Mr. Justice Foster thinks it may safely be concluded that in the construction of statutes which oust clergy in

tutes.

(m) Rex v. Winifred and Thomas Gordon, 1 Leach 515. S. C. 1 East. P. C. 352. And see Haydon's case, 4 Co. 42 b. In Gordon's case it was the opinion of all the judges that the prisoner who was discharged upon this objection might be indicted again as principal. So in 1 Hale 625 it appears that if one person be indicted as principal and another as accessory, and both be acquitted, yet the person indicted as accessory may be indicted as principal, and the former acquittal as accessory is no bar. But it is said that if a person be indicted as principal and acquitted, he shall not be indicted as accessory before. 1 Hale 626. ; yet qu. and see Post. 362. It seems to be admitted, that if a man be indicted as principal and acquitted, he may be indicted as accessory after ; and so if he be indieted -as accessory before, and acquitled, he may be indicted as

accessory, after. i Hale 626.

(n) Rex v. Danelly and Vaughan, Mich. T. 1816. 2 Marsh 571. and I Russ. & Ry. 310. Post, Book IV. Ch. vi. s. 1. It was urged that Vaughan could not be guilty as accessory to the “said felony and burglary” as charged in the indictment, the jury having negatived the burglary; that an accessory must be convicted of a felony of the same species as the priocipal, and that his offence, though distinct, is yet derivative from that of the principal.

(p) 31 Eliz. c. 12. s. 5. - 21 Jac. 1. c. 6.

(9) 23 Hen. 8. c. 1. s. 3.
(r) i Ed. 6. c. 12. s. 13.
(8) 4 & 5 Ph. & M. C. 4.
(1) 39 Eliz. c. 9. s. 2.
(u) 3 & 4 W. & M. c. 9.
(w) 1 Ande st. 2. c. 9.

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