felonies. (b) And also that what was found upon each may be proved against each to make out such confederacy, although it were not found until some interval after the commission of the offence. (c) Going towards the place where a felony is to be committed, in order to assist in carrying off the property, and assisting accordingly, will not make the party a principal if he was at such a distance at the time of the felonious taking as not to be able to assist in it. The prisoner and J. S. went to steal two horses; J. S. left the prisoner half a mile from the place in which the horses were and brought the horses to him, and both rode away with them. Upon a case reserved, the judges thought the prisoner an accessory only, not a principal, because he was not present at the original taking. (d) But where a man committed a larceny in a room of a house, in which room he lodged, and threw a bundle containing the stolen property out of the window to an accomplice who was waiting to receive it, the judges came to a different conclusion. The accomplice was indicted and convicted as a receiver; and the learned judge before whom he was tried was of opinion, that as the thief stole the property in his own room, and required no assistance to commit the felony, the conviction of the accomplice as a receiver might have been supported, if the jury had found that the thief had brought the goods out of the house, and delivered them to the accomplice: but as the jury had found that the thief threw the things out of the window, and that the accomplice (whose defence was that he had picked up the bundle in the street) was in waiting to receive them, he thought the point fit for consideration. And the judges were of opinion that the accomplice in this case was a principal, and that the conviction of him as a receiver was wrong. (e) When an offence is committed through the medium of an innocent agent, the employer, though absent when the act is done, is answerable as a principal. Thus, if a child under years of discretion, a madman, or any other person of defective mind, is incited to commit a murder or other crime, the inciter is the principal ex necessitate, though he were absent when the thing was done. (e) And if a man give another a forged note that the other may utter it, if the latter be ignorant of the note being forged, the uttering by the latter is, it seems, the uttering of the former, though the former were absent at the time of the actual uttering. (f) But if the person who received the note knew that it was forged, the person who gave it would not, as it should seem, be punishable principal. For where a person having incited another to lay poison is absent at the time of laying it, he is an accessory only, though he prepared the poison, if the person laying it is amenable as a principal; but is punishable as a principal if the person laying the poison is not so amenable. (g) Where poison is laid for a man, and all who were present and concurred in laying it are absent at (b) Id ibid. (c) Id. ibid. (d) Rex v. Kelly, Mich. T. 1820. MS. Bayley, J. and Russ. and Ry. 421. And see post, Book IV. Chap. xxi. Of receiving stolen goods. (e) Rex v. Owen, East. T. 1825. Ry. and Mood. C. C. R. 96. (e) Fost. 340. Kel. 52. Post, Book III. Chap. i. (f) Rex v. Palmer and Hudson, 1 New Rep. 96. Post, Book IV.Chap. xxx. (g) Fost. 349. Murder by several in prosome unlawful secution of purpose. the time it is taken by the party killed by taking it, all are principals; otherwise all would escape punishment. (h) It has been held, that to aid and assist a person to the jurors unknown to obtain money by the practice of ring-dropping is felony, if the jury find that the prisoner was confederating with the person unknown to obtain the money by means of this practice. (f) And if several act in concert to steal a man's goods, and he is induced by fraud to trust one of them in the presence of the others with the possession of the goods, and then another of the party entice the owner away, in order that the party who has obtained such possession may carry the goods off, all will be guilty of felony, the receipt by one under such circumstances being a felonious taking by all. (a) If a fact amounting to murder should be committed in prosecution of some unlawful purpose, though it were but a bare trespass, all persons who had gone in order to give assistance, if need were, for carrying such unlawful purpose into execution, would be guilty of murder. But this will apply only to a case where the murder was committed in prosecution of some unlawful purpose, some common design in which the combining parties were united, and for the effecting whereof they had assembled; for unless this shall appear, though the person giving the mortal blow may himself be guilty of murder, or manslaughter, yet the others who came together for a different purpose will not be involved in his guilt. (g) Thus where three soldiers went together to rob an orchard; two got upon a pear-tree, and the third stood at the gate with a drawn sword in his hand; and the owner's son coming by collared the man at the gate, and asked him what business he had there, whereupon the soldier stabbed him; it was ruled to be murder in the man who stabbed, but that those on the tree were innocent. It was considered that they came to commit a small inconsiderable trespass, and that the man was killed upon a sudden affray without their knowledge. But the decision would have been otherwise if they had all come thither with a general resolution against all opposers; for then the murder would have been committed in prosecution of their original purpose. (h) (h) Fost. 349. Kel. 52. 4 Co. 44 b. (g) Fost. 351, 352. 2 Hawk. P. C. (h) Fost. 353. Case at Sarum Lent Assizes, 1697, MS. Denton and Chapple, 2 Hawk. P. C. c. 29. s. 9. And see Rex v. Hodgson and others, 1 Leach 6. and an Anon. case at the Old Bailey, in December Sessions, 1664. 1 Leach 7. note (a) where several soldiers, who were employed by the messengers of the Secretary of State to assist in the apprehension of a person, unlawfully broke open the door of a 66 66 house where the person was supposed to be; and having done so, some of the soldiers began to plunder, and stole some goods. The question was, whether this was felony in all; and Holt, C. J. citing the case, says, "That they were all engaged in an unlawful "act is plain, for they could not justify breaking a man's house without making a demand first; yet all those "who were not guilty of the stealing were acquitted, notwithstanding their being engaged in one unlawful "act of breaking the door; for this reason, because they knew not of "any such intent, but it was a chance "opportunity of stealing, whereupon "some of them did lay hands." 66 66 66 66 For where there is a general resolution against all opposers, Or where there is a general whether such resolution appears upon evidence to have been acresolution tually and explicitly entered into by the confederates, or may be against all reasonably collected from their number, arms, or behaviour, at or opposers. before the scene of action, and homicide is committed by any of the party, every person present in the sense of the law when the homicide is committed will be involved in the guilt of him that gave the mortal blow. (i) aiders and As to the punishment of aiders and abettors. But it must be observed that this doctrine respecting the whole But where the party being involved in the guilt of one or more, will apply only to purpose was such assemblies as are formed for carrying some common purpose be murder lawful, it will unlawful in itself into execution. For if the original intention only in the was lawful, and prosecuted by lawful means, and opposition is party killing made by others, and one of the opposing party is killed in the and his actual struggle, in that case the person actually killing may be guilty of abettors. murder or manslaughter, as circumstances may vary the case: but the persons engaged with him will not be involved in his guilt, unless they actually aided or abetted him in the fact; for they assembled for another purpose which was lawful, and consequently the guilt of the person actually killing cannot by any fiction of law be carried against them beyond their original intention. (k) When the rule was first settled that aiders and abettors should be deemed principals in the second degree, and not accessories at the fact, the object in view was probably to bring such offenders more speedily and certainly to their trial; () without any intention of enhancing the measure of their punishment upon conviction. Nor would the consequence of an increased punishment have immediately followed from the rule, as the distinction between principals and accessories did not at that time affect the life of the party upon conviction: and all were then alike liable to suffer death, from the principal in the first degree to the accessory in the lowest, unless the privilege of clergy, which in those days was founded solely on the clerical function or capacity of the delinquent, interposed. Whether principals or accessories, therefore, the punishment would have been capital to those who were not entitled to the privilege of clergy; and to those who were entitled, the punishment would not have been capital, though principals in the highest degree. But in later times the question of principal or accessory has become a matter of the greatest importance to the prisoner; in many cases life or death to him; for by wiser regulations the allowance or non-allowance of clergy no longer depends upon the function and capacity of the offender but upon the nature of the offence; and is extended, in cases in which it is allowable, to all ranks and orders of men. (m) Now, it being admitted as a settled rule that aiders and abettors are to some purposes at least principals in the second degree, it has been made a question whether they ought to be so considered to (i) Fost. 353, 354. 2 Hawk. P. C. c. 29. s. 8. (k) Fost. 354, 355. 2 Hawk. P. C. c. 29. s. 9. And sce further upon this point, post, Book III. Chap. iii. on Homicide. (1) Ante, p. 21. (m) 3 & 4 Will. and Mary, c. 9. s. 6. 5 Ann. c. 6. s. 4. Vide Fost. 359. By 6 Geo. 4. c. 25. s. 3. clerks in holy orders convicted of felony are made liable to punishment, as other persons not in holy orders. Whether liable to be punished as principals in the first degree. Grounds for considering them as not so liable. Of Aiders and Abettors. all purposes and in all cases; and especially with regard to new [BOOK I, 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) It is allowed on all hands that aiders and abettors have been of the statutes which oust clergy in murder, robbery, rape, and always ousted of their clergy, and properly so, by the construction 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 have 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." (q) 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) upon the statute 39 Eliz. c. 15., against robbery in dwellingSo in a case houses, (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. (q) 1 Jac. 1. c. 8. (r) Page and Harwood's case, Fost. 355. Aleyn. 43. Str. 86. 1 Hale 468. And the case of the Queen v. 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 outhouse, &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. 66 66 66 window, one of them opened the window, got into the chamber, and stole 407., 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 have 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. (z) liable. 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 phrase "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 (t) Rex v. Evans and Finch, Cro. Car. 473. Hale, in citing this case, says that the offence must be a stealing in the house; and therefore he that steals, or is party to the stealing, being out of the house, is not ousted of his clergy. The law stood thus with regard to this statute, and also to the 5th and 6th Ed. 6. c. 9. against an offence of the like kind, till by 3 & 4 W. & M. c. 9. aiders and abettors were expressly ousted. And see as to this point, post, Book IV. Ch. iii. (u) By which it was enacted, "that "no person indicted for the felonious |