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doubt but that the court rightly determined, that although he only joined with, and encouraged and abetted other persons in beginning to demolish and pull down the dwelling-house, yet that he was guilty of a capital offence; for the fourth section of the statute enacts, “That if any persons unlawfully, riotously and tumultuously assembled together, to the disturbance of the publick peace, shall unlawfully and with force demolish or pull down, or begin to demolish or pull down any dwelling-house
; every such demolishing or pulling down, or beginning to demolish or pull down, shall be adjudged felony without benefit of clergy, and THE OFFENDERS THEREIN shall be adjudged felons, and shall suffer death, as in case of felony, without benefit of clergy.” The words of this statute are, in the form and manner of expression, remarkably similar to the words in the statute 25 H. VIII. c. 6. against buggery, and exclude from the benefit of clergy, as manifestly as that statute, persons present aiding and abetting.
I am sorry, that I cannot entertain so favourable an opinion of the case of The Coal-heavers, which is inserted in Mr. Leach's Cases in CrownLaw, p. 61–63. Seven men were indicted on the statute 9 Geo. I. c. 22, being the same statute on which Midwinter and Sims were indicted, for shooting at John Green in his dwelling-house, and were tried at the Old Bailey in 1768. Three
See p. 358, 359. 422, 423.
of them were proved to have been present when the others fired, but they had not been seen to use any fire-arms themselves. The jury found them all guilty, and the judges,* on a reference to them, determined, that the offence of all was capital; and they were all executed. The words of the statute are, “If any person or persons shall wilfully and maliciously shoot at any person in any dwelling-house, or other place, 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.” This case is exactly similar to the case of Midwinter and Sims; and if Mr. Justice Foster's opinion in that case be well founded, namely, that the benefit of clergy is taken away only from persons actually committing the offence, it follows necessarily, that three of those men suffered a more severe punishment than the law authorizeth.
The reader will perceive, that many of the reasons and authorities on which the author relies are woven into his Discourse on Accomplices, and will excuse the repetition, as great injury would be done to the argument by omitting the parts inserted in that Discourse.
* Sir Michael Foster and Sir William Blackstone were not judges at this time. The former died Nov. 7, 1763, and the latter was made a judge in 1770.
The second case added in this edition is the case of John Bell, who was tried at the Old Bailey in 1753, on an indictment for high treason grounded on the statute 8 & 9 W. III. c. 26, for having in his custody a press for coinage without any lawful authority or sufficient excuse, and was convicted. On a reference to the judges two questions were made, on the first of which Lord Chief-Justice Ryder differed from Mr. Justice Foster and the other judges, and on the second he and Mr. Justice Foster concurred in opinion against the others. This case was omitted by the advice of Lord Hardwicke; and in the margin of the copy intended for the printer the author hath written this note: "I am satisfied, that the chief-justice upon the first question, and the other judges upon the second, were totally mistaken. A great man formerly of the profession, by whose advice the case is omitted, told me, that he hath no doubt upon either of the questions. I believe, that his advice proceeded from a regard to the judges, or from his fear of establishing a bad precedent by the authority of great names, though he did not explain himself fully upon that head.” The case is shortly mentioned by Lord Mansfield in 1 Burrow 154. “ In indictments, saith he, upon 8, 9 W. III. c. 26. for having a coining-press, every thing which shews, that the defendant had no authority must be negatively set out: and so it was done in the indictment of Bell, which was lately argued before all the judges.” I have no recollection, that the opinions of the judges in this case are reported in any book: and therefore as the points are of real importance, and it is still possible, that a less accurate account may be published, and especially as I received directions from the author about publishing it at a proper time, I am unwilling to omit the present opportunity of doing it.
The last of the new cases is an anonymous one of a woman, who was indicted on the statute 7 & 8 W. III. C. 41. for having in her custody divers pieces of canvas marked with the King's mark, she not being a person employed to make canvas for the King's use. This case hath some connection with Bell's and was omitted in consequence of the omission of that case. It is of some importance, and ought now to accompany the case of Bell.
July 20, 1792.