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the time it is taken by the party killed by taking it, all are principals; otherwise all would escape punishment. (1)
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.() 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 inay carry the goods off, all will be guilty of felony, the receipt by one under such circumstances being a felo
nious taking by all. (a) Murder by
If a fact amounting to murder should be committed in prosecuseveral in pro- tion of some unlawful purpose, though it were but a bare trespass, of
all some unlawful
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, 358. 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, I 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
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 jus
tify 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 bauds."
For where there is a general resolution against all opposers,
is a general whether such resolution appears upon evidence to have been ac
resolution 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. (0)
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 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 As to the be deemed principals in the second degree, and not accessories at aiders and
punishment of the fact, the object in view was probably to bring such offenders abettors. more speedily and certainly to their trial; (l) 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 Whether liable are to some purposes at least principals in the second degree, it has to be punished been made a question whether they ought to be so considered to the first degree.
(i) Fost. 353, 354. 2 Hawk. P. C. c. 29. 3. 8.
(k) Fost. 354, 355. 2 Hawk. P. C. c. 29. s. 9. And see further upon this point, post, Book III. Chap.iii. on Homicide.
6) 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.
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 ciergy 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 Eliz. 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) i 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.
(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 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 have his clergy, though plainly a principal aiding and abetting (1) 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
(p) Fost. 357, 358. (9) i Jac. 1. c. 8.
(r) Page and Harwood's case, Post. 355. Aleyn. 43. Str. 86. i Hale 468. And the case of the Queen o. Whistler, Salk. 542, 2 Lord Raym. 842.
dwelling-bouse 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.
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.” (2) 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. (-)
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
them as so too subtle and refined ; particularly his distinction between the
liable. 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
(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. 9. against Sterne's case, 1 Leach 473. an offence of the like kind, till by 3 (2) Fost. 357. & 4W. & M. c. 9. aiders and abettors (y) i Hale 704. were expressly ousted. And see as to (2) Fost. 417, 418. this point, post, Book IV. Ch. jii. (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,
compass of them to all intents, and suffered accordingly. (b) And contrary to this opinion they decided upon the 9th Geo. 1. 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. (1)
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. (8) 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.
(6) Fost. 421.
(c) Rex v. Midwinter and Sims, Fost. Append. 415. I Leach 66, note (a). See also Dodson's Life of Foster, 30, 35.
(d) Commonly called the Black Act.
(e) The words are, “every person so offending."
(f) Coalheavers' case, 1 Leach 66. And all the Judges were of opinion that this case was good law in Wells's case, 1 East. P.C. c. 8. s. 7. p. 414. 1 Leach 360, in the note. And see also 2 Hawk. c. 33. S. 98, 99.
(g) 4 Bla. Com. 373, citing 1 Hale 529. Fost. 356, 357.