acts of assembly, relative to attachment, were borrowed from the custom of London, and do not, in themselves, form an entire system, it has been usual to resort thither, to supply and illustrate them and a system now exists in Pennsylvania formed partly from the custom of London, and yet differing from it in many important particulars. What was to be found in print lay dispersed; and it was thought to be useful, if nothing more could be done, at least to bring together the different points decided, as a means of aiding a more entire view of the law upon this head, than can at present easily be obtained. "This has been attempted in the present treatise. The writer has assiduously sought all the information on the subject that was to be found in print, and has obtained, through the kindness of his friends, some few, but important manuscript cases. In addition to these he has, for the reason before stated, introduced most of the law under the custom of London; a considerable portion of which appeared to be applicable here; and even that part which could not be so considered, tending to illustrate the grounds and reasons of the proceeding. "He has felt the difficulty attending the formation of an elementary work, arising from the paucity of our own decisions on the subject : the only legitimate sources, from which the interpretation of the laws can be derived: particularly in what regards the practice, which varies essentially from that under the custom of London, and can be traced only in the decisions of our own courts." "Penal statutes must be construed strictly." I Bl. Com. 87. EXTRACT from Dodson's life of Sir Michael Foster, published, London, 1811. "Sir John Eardly Wilmot, late lord chief justice of the court of common pleas, was the particular friend of Mr. Justice Foster: and Mr. Wilmot, in his memoirs of his very justly honoured father, has inserted some short correspondence on legal subjects between these friends, and spoken of Mr. Justice Foster in language significantly descriptive of his true character. Sir Michael Foster says he was conspicuous, not only for his knowledge of criminal law, but for every quality of an upright, enlightened, and sagacious magistrate. "Although Sir Michael Foster generally concurred in opinion with the other judges; yet, on several important questions, he differed from some, if not from all of the judges. A remarkable instance of this sort occurred in the case of John Midwinter and Richard Sims, who was tried before him at the lent assizes for the county of Gloucester, in 1749, for unlawfully, maliciously, and feloniously killing a mare. Midwinter was found guilty, and received sentence of death. But the judge having doubts as to the case of Sims, the jury, by his direction, found a special verdict with regard to him. 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 G. I. chap. 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 very justly styles 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: That, "when the benefit of clergy is taken away from the offence (as in the case of murder, burglary, &c.) 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 from the person committing the offence, as, in the case of stabbing, &c. his aiders or abettors are not excluded; through the tenderness of the law, which hath determined that such statutes shall be taken literally. 1 Hale, P. C. 529. Foster, 356. "In the appendix to the third edition of the crown law, I inserted this case, which the author had most reluctantly omitted in the first edition, at the pressing solicitation of lord Mansfield, who, in February, 1772, wrote to him the following letter. "I return your papers which I have read with great pleasure and approbation; but I very much wish that you would not enter your protest with posterity against the unanimous opinion of the other judges in the case of Sims. If the determination was contrary to former authorities there is no harm in it. Sims was, in every view, equally guilty, and in the very same degree. In real truth, and not by fiction of law, they both did the act. Midwinter might not have been able to maim had not Sims holden, &c. The authorities which you cite prove strongly to the contrary; but they seem to be founded in subtil nicety, and very learned interpretation; and upon the large principles which you lay down, the doing justice to the public, and adapting the punishment to the degree of guilt, it is impossible to say that Sims was not equally criminal; and if his punishment was less, it could only arise from a slip in penning the act. The construction is agreeable to justice; and therefore suppose it wrong upon artificial reasonings of law, I think it better to leave the matter where it is. It is not "Dignus vindice nodus." "If this case had been published agreeable to the author's determination, in 1762, it is probable that the lives of three unfortunate men would have been spared. Seven men were indicted on the statute of George 1. 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 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 of fending, and 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 Simas, 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 necesarily that those men suffered a more severe punishment than the law authoriseth. Sims, as I have already said, might deserve as severe a punishment as Midwinter; but if by law the benefit of clergy be taken from the latter, and not from the former, the same punishment ought not to be inflicted on both. In such cases nothing ought to be left to the discretion of judges ; it is their province jus dicere, not jus dare. "The discretion of a judge is, as a great man hath said, the law of tyrants; it is always unknown; it is different in different men; it is casual, and depends upon constitution, temper and passion. In the best, it is oftentimes caprice; in the worst it is every vice, folly and passion to which human nature is liable." See lord Camden's argument in the case of Doe v. Kersey. 5 Geo. III. 1765. in C. B. "Bell's case was thus; he was tried at the Old Baily, in 1753, on an indictment for high treason, grounded on the statute 8 and 9. William 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. "1. Whether a press for coinage is one of the tools or instruments within that clause of the act on which this indictment is founded? ❝ 2. Supposing it to be within the clause, whether the facts stated in the case amount to a sufficient excuse, so as to take the defendant out of the penalties of the act. "Upon the first question, chief justice Ryder, was single, and thought that a press for coinage is not one of the tools or instruments within the clause of the act on which the indictment is founded. This opinion rests on a very slight foundation in point of law; but it was probably occasioned by an excess of caution and tenderness, he having been attorney general at the time of the trial. "Upon the second question, the majority of the judges thought that as the press was intended for coining Louis d'ors, and other foreign pieces not the current coin of this kingdom, his case was not within the act. But the other two judges were clearly of opinion, that as the press was intended to be used in coining, and was fitted as well for counterfeiting the coin of the kingdom, as any other coin, the prisoner's case was within the act. It would not be a defence, they thought, within the sense and meaning of the act, for him to say, I intended the press for a very wicked purpose, but not for the purpose it was adapted to; I intended to commit a misprision of treason; but not high treason: the words suffice for an excuse, meaning in this act, as they do, in all language, an honest, a fair, a reasonable excuse, which an honest man may make without blushing. "To a memorandum of this case, justice Foster has the follow ing note.* "This case was omitted by the advice of Lord Hardwicke ; I am satisfied that the chief justice, (Ryder,) upon the first question, and the other judges on the second, were totally mistaken. A great man, formerly of the profession, by whose advice it 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. "A sentence in a letter of lord Hardwicke, February 24, 1761, is the following," Permit me to beg that you would reconsider whe ther it may be advisable to send into the world the case of John Bell. I forbear to express my reasons for calling your attention once more to this case." "His lordship having conceived some doubts on the case of Earl Ferrers was very desirous to prevent the publication of it; and with that view he endeavoured by a degree of intimidation, to prevail on the author to suppress that case; and also the case of John Drummond, and captain John Gordon. But the author was so perfectly satisfied in the case of Earl Ferrers, that he could not comply with the importunate request of a man whom he loved and honoured. I am not, and I believe that Mr. Justice Foster was not apprized of lord Hardwicke's objections; but I well remember to have been told by Mr. Justice Foster, that, in the opinion of his son, Mr. Solicitor General York, they were not well founded. "From these instances of integrity and firmness, it may be seen that the compliment paid Mr. Justice Foster by the celebrated Churchhill, in his Rosciad, was not undeserved, "Each judge was true and steady to his trust; *In his report of cases on the crown law. |