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the 3rd edal 1712
TRIAL OF THE REBELS IN THE YEAR 1746,
IN THE COUNTY OF SURRY;
By SiR MICHAEL FOSTER, Knt.
of the City of Bristol.
THE THIRD EDITION,
With Additional Notes and REFERENCES by his Nephew,
Portugal Street, Lincoln's Inn.
HAVE added in this edition three new
cases, which the learned author intended to insert in the first edition, and had caused to be transcribed for that purpose. Two of them are the cases of John Midwinter and Richard Sims on the statute 9 Geo. I. c. 22, and of John Bell on the statute 8 and 9 W. III. c. 26, and the third is an anonymous case on the statute 9 & 10 W. III. c. 41. In the two former cases he differed from most of the judges, and they were omitted by him in consequence of the advice of friends.
The case of Midwinter and Sims is of great importance and very extensive influence; and as it is imperfectly stated in the case of Rex v. John Royce in B. R. 1767, reported in 4
Burrow 2073—2086, I think it right to take this opportunity of communicating it to the world. The question in that case was, Whether Sims, who was present aiding and abetting Midwinter in killing a mare of the prosecutor, was ousted of the benefit of clergy by the statute 9 Geo. I. c. 22, by which it is enacted, “That if any person or persons 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.” Mr Justice Foster thought, that Sims was a felon, and a principal felon, but that, as aiders and abettors are not named, nor described in the statute, and the law requires statutes so penal to be construed literally and strictly, he was not excluded from the benefit of clergy. The other judges thought him to be excluded ; and some later judges have agreed with them : but the argument of Mr. Justice Foster, whom Sir William Blackstone* justly stiles a very great master of the crown-law, and who, as Lord Chief Justice De Grey + upon an important occasion said, may be truly called the Magna Charta of liberty of persons as well as fortunes, amounts, in my opinion, to a demonstration, that all those learned judges have mistaken the law. Sims might deserve as severe a punishment as Midwinter; but no punishment which is not authorized by law ought to be inflicted on any man, and the point is, Whether the law in this case hath provided the same punishment for both. Mr. Justice Blackstone,* it is material here to observe, adopts the distinctions which Mr. Justice Foster endeavours to establish, and he lays down these rules ;
* See Comment. IV. chap. i. p. 2. + See 3 Wilson 203.
“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, 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 larciny in a dwellinghouse, or privately from the person,) his aiders and abettors are not excluded; THROUGH THE TENDERNESS OF THE LAW, WHICH HATH DETERMINED, LITERALLY.” +
In the above-mentioned case of Royce, who was indicted with others on the statute 1 Geo. I. st. 2. c. 5 for beginning to demolish and pull down a dwelling-house, I have not the least
Comment. IV. chap. 28. $ 3.