case the queen against whistler what shall be consider aid and assist to the  commission of a offence SC salk SC Mod SC holt SC ld ray Rolfe and other be  convict summary upon the late Act of will and mary c against deerstealing the  question be whether the defendant be unlawful and unjust aid and assist the  say Rolfe in unlawful and unjust kill and hunt the say deer videlicet by  persuade and meeting the say Rolfe c to hunt and modern kill the say deer and  lend they dog to bunt and kill the say deer and horse to carry they away  contra form to cause to stand and whether whistler as charge be within the  statute gold justice make two question of the case first whether if the word  aid and assist be total leave out of the statute they will be guilty within  the statute second whether in case they be not these word will bring they in  the word of the statute be such as be aid and assist therein and be say the  word therein be the same there with thereof or thereunto for he who lend his  dog to bunt be aid in the bunting and this appear from the preamble which show  the cause of make the statute which be that notwithstanding the many law make  against unlawful course and kill of deer that forasmuch as the penalty be not  sufficient to deter diverse sturdy and disorderly person who confederate  together to commit these disorder and if any of they be find guilty which be  rare they contribute and make the penalty light upon he that be so convict  therefore for the more effectual discovery of such person what person such  person as do confederate be it enact c and the word such couple the enact part  to the preamble cro James   light and Alexander poulter case   a and here it  will be very mischievous that the world shall know that the statute do not  extend to accessary before the fact for then the rich will incite poor and  desperate fellow to bunt and supply they with dog horse c and they will not be  punishable within the statute it be object that this be a penal law and  therefore to be construe strict and that aid and assist therein must be in the  very act of bunting but I answer quite otherwise for aid and assist be proper  before the act do   b he who give consent or aid to a trespass be a principal  trespasser and as much punishable as he who actual commit it so be consent to  make clip money hightreason as much as the actual makingSee sir e coke  commentary on the statute of Westminster the first c Inst c under the word aid  come all those who counsel abet plot consent and encourage the fact and be not  present at the do of it modern second suppose these word be not in the statute  yet the defendant will be within it for it be a trespass and I take it that  there be no diversity between modern er p the case of trespass and felony as  to the aid and assist only that in the one they be principal in the other  accessary only and when a Act of parliament make a new law and make a crime  felony that be not so before though there be not a word of accessary yet they  shall be felonsPalm see hawk p c ch S a the case in the yearbook of Henry the  seven Henry pl b upon the statute de malefactor in to act sparingly Edward c c  be say can not be distinguish from this case that be a very penal law for it  inflict three year imprisonment upon the party and a fine to the king and to  find surety never to offend more and for default of surety to abjure the  kingdom beside a large amendment to the party aggrieve and yet he that do only  command be adjudge to incur the penalty which case he affirm to run quatuor  foot with that now in question powys justice the conviction be good by virtue  of the word aid and assist therein in the statute the statute de malefactor in  to act sparingly do not alter the offence but leave it a trespass as it be  before and that statute give a complete remedy to the case to which it extend  but it only extend to misfeasance in ancient park and park of right as appear  by Inst there still remain great defect of remedy and no statute against  deerstealing mention aider and assister but that of William mary which have  the word now in question without which per Lui the defendant can not be  convict and for the signification of the word be aid and assist he quote the  second institute Inst d the case of Evans and finch cro car e be ground upon a  statute which have not the word aid and assist in it and if they have the  person who stand upon the ladder will have be oust of his clergy and he will  make a difference between case of felony and trespass for act of parliament  take away the benefit of clergy in felony do not extend to raiders and  assister before but that be say be in favour of life but there be no reason  for a strict construction in trespass and this statute he say be rather to be  call a remedial than a penal law and conclude that the conviction be good  modern Powell justice accord it be object that this be a penal law and not  annex to the offence but to the person offend under such a description and the  aider and assister therein and the distinction be take between aider and  assister therein and aider and assister thereunto he who only lend door c to  commit the fact be not aid in the fact but to it so such person do not come  within the description of the statute he agree that a man may be aid to a  felony and present at the do of it but he affirm that such a aider will be a  principal felon but there may be likewise aider that be absent which in case  of felony will only be accessary and upon this the distinction be ground that  one sort be aider therein and the other thereunto the second objection be that  this be a penal law and for that reason not to be carry beyond the letter of  it by construction or equity which he agree but he say that such as lend dog  or horse to hunt be aider in the hunt as much as aider to it and as much as if  they be present at it because the offence be trespass and all aider to or in  trespass be equal guilty of it and all principal so whoever persuade a man to  do a thing which be a trespass and that be prove in evidence be shall be a  principal trespasser or if the thing to which he persuade be felony he shall  be accessary to it and if a new felony be make by Act of parliament though  there be not a word say of he who persuade to it yet if he persuade before the  fact be shall be a accessary if at the time be shall be principal felon if  comfort receive c after be shall be accessary after and he say the distinction  in the case of finch and Evans be very nice but however not like the present  case and be quote the case of W c if a man ravish a marry or any other woman  he shall have judgement of life and member and what Act can be more personal  and penal than that and yet aider and assister be ravisher within the statute  even a woman who can commit the fact herself shall be so by the statute of  Henry c f or steal of woman c all aider and assister be principal by the  statute modern er p yet there may be a accessary as be who receive themThat be  he that receive the offender alone for such as receive the offender and the  woman be principal by the very word of the statute note to former edition a  after know they to be guilty and this by construction of law the Statutede  malefactor in to act sparingly be a penal statute and it be not annex to any  fact commit but to all misfeasors modern and yet aider before the fact be by  construction bring under it the first action that I find bring upon that  statute be in the twenty year of Edward the three see yearbook Edward pl b one  break into a park and rescue his cattle which be a trespass and by consequence  within the word of the statute and it be adjudge not within the meaning of it  and that the trespass mean by the statute be a unlawful bunting and kill of  deer yearbook Henry pl c in a action upon the same statute and not guilty  plead the jury find that the defendant do break the park in order to chase but  kill no deer the declaration be that be break his park and kill his deer and  there he be adjudge to be a misfeasor and judgement be against he upon that  penal statute the next case that I find in the book upon this statute be in  the thirteenth year of Henry the seven yearbook Henry d where it be adjudge  that the defendant incite other to hunt be a hunt in himself and it be a very  strong case upon so penal a law as the statute be the statute Henry c reeves  hist England law e enact that if any person in daytime with vizor upon his  face or paint or other disguise wrongful chase in the park of another every  such person shall be punish as a felon so that it be not bind up to the  offence itself and there be a proviso in that Act to exempt c and in case of  felony whether a offence be make felony or the offender make a felon they who  persuade incite c will be accessary to a felony and why shall it not be so in  case of a misdemeanour too and though the case of page and Harwood Allen style  a make a distinction where clergy be take away from the offence and where from  the offender under the circumstance describe by the statute as in the case of  burglary that where it be take away from the offence they that be aid and  assist in the offence shall lose it but where from the person offend so and so  he alone and not the accessary shall lose it that diversity he say and also  the case of Evans and finch cro car b be in favour of life and in the case of  Evans and finch if they both bad get into the house and one of they see the  money have not touch it but desire the other to fetch it will not they both  lose the clergy the word of the statute be that he that enter and take good to  the value of five shilling shall lose the benefit of his clergy and he say he  can soon be reconcile to the case of page v Haywood than to that of Evans and  finch for upon the union of the two nation the scot bring in the fashion of  dagger and much mischief arise betwixt the English and they to avoid which the  statute of modern stab Bl Com c be make suppose two man have a sudden  fallingout and a standerby give his dagger to one of they and desire he to  stab he which he do and the man die I doubt whether they shall both lose the  clergy and he conclude the conviction be good holt chief justice contra I  observe that though my three brother agree in one conclusion they differ in  the premise gold say that aider and assister will be within the statute though  there be no mention of they in it powys say it be mere because of the express  word and I differ from they both in the premise and in the conclusion  everybody know that this be a penal law ought by equity and reason to be  construe accord to the letter of it and no far though the fact that you will  bring under it be within the reason and as heinous or more than that which be  express in it that this Act be Penal be most plain for here be a penalty of  thirty pound second which be high penal the defendant be put to a summary  trial different from great Charta for it be a fundamental privilege of  englishmen to be try by jury which privilege have be secure to we by our  ancestor many hundred year ago then when there be a penalty inflict and a  different manner modern er p of trial from great Charta institute and instead  of be open try by his neighbour in a court of justice be shall be convict by a  single justice of peace in a private chamber upon the testimony of one witness  I fain will know if upon the consideration of such a law we ought not to  adhere to the letter of the law without carry word far than the natural sense  of they and let the preamble be what it will and recite what it will it be not  enough to bring they under any penalty if there be not word in the enact part  of the statute to do it it be object that because confederacy be mention in  the statute it shall take in such as persuade and incite c but I answer no but  by reason thereof the penalty shall be great upon the actual offender and  their trial more severe and I never hear of such a rule that because the  preamble of a statute recite many particular and enact a penalty only upon one  of they that the penalty shall be extend to all by construction then the word  of the statute be aider and modern assister therein that be aid and assist in  the fact and he who lend dog and horse to hunt aid a man to bunt and kill but  be be not thereby aid in the bunting and kill the law make a great difference  in frame a indictment in a case where one be present abet and assist and where  be be aid and assist but absent at the time of the fact commit if one be  present aid and assist in case of felony he be a principal as if two fight and  one stand by one of they with his sword draw he contribute to the actual kill  and that be what the law general understand aider and assister to be if air  Act take away the benefit of clergy from one who do such all act and from  aider and assister yet it shall not take away clergy from the accessary and  for this be quote the case in dyer where the difference be take between the  manner of a indictment of a accessary before that be by aid and assist to the  thing and if it be after that be for aid and assist and comfort after the fact  and if present where they be say to be aid and assist in the thing but it be  also object that this be a trespass and in trespass all be principal to this  objection I answer it be very true if the statute bad inflict this penalty  under the name and denomination of a trespasser there all that shall be  persuade command or any way contributory before the fact though absent will be  within it so if it be after because they be all by law trespasser and the  punishment be lie upon a trespasser but not because he be under such and such  particular circumstance and so be the statute of malefactor in park for it lie  the penalty not because they do mischief in a park in such a particular manner  but because they be trespasser there and the word of the statute be not that  such and such as do so and so shall incur a penalty as the word be in our case  if the word of the statute de malefactor in to act sparingly have be that such  as do offend so and so shall incur such and such a penalty none will incur the  penalty but such as actual bad chase and our statute now lie the penalty on  one particular person under this particular circumstance and not as be be a  trespasser at large but as he offend under such circumstance the case of Evans  and finch cro car a be very strong in the point Evans go in at a window to a  chamber in modern the Inner temple and take forty pound in money out of it and  all the while finch be upon the ladder withoutside and in view of he who go in  and it be hold that he who stand upon the ladder shall have the benefit of the  clergy upon the statute of Elizabeth c there no doubt they both be principal  in the fact but because clergy be only take away by the statute from such as  enter and take away and finch do not enter he have his clergy vet if clergy  have be take away from any that commit burglary or housebreaking there he  shall not have it for the statute do not take away clergy upon account of the  felony but upon account of felony under these circumstance of enter into the  house and take away but in other case clergy be take away from the offence of  which he be find guilty as in case of robbery on the highway there all that be  robber shall lose their clergy and one who go to rob with another though he  stand at a distance from he and take nothing yet he be a robber but if clergy  be take away in this manner that whoever shall meet a man on the highway  assault he so and so and do rob he shall lose his clergy in that case air  abettor will not lose his clergy if be be not within such a particular  circumstance and strict within the description modern er p it be further  object that in the case of a rape whoever shall ravish a woman shall lose life  and member and that the benefit of clergy be take away by the statute the  abettor shall also lose it I answer that the reason of it be plain for there  the Act change that which be trespass before into felony the very species of  the offence be alter thereby the abettor of that crime must be felon because  they be guilty of that fact which be now felony and the accessary before and  after shall be felon because they be aid incite c to a fact which be felony  every man who procure a felony to be do be a felon so of a crime of a high  nature as if a Act of parliament have make a felony treason they that shall be  accessary shall be now principal because the species of the offence be alter  and there be a vast difference between both case for the one alter the nature  of the offence and the other only raise the penalty when the offence be  accompany with such and such circumstance and per Lui they who be procurer of  a modern fact can be call aider and assister in it but may be say to be aid  and assist to it my brother have not quote one case that warrant their  conclusion and be say that he have know the case of Evans and finch inquire  into and scan since and that he himself bad order the record to be bring to he  and that judgement be as it be report by croak it be a easy answer he say to a  case to say that it be a nice one but he say the authority of it be never  impeach and if it have be in trespass be who stand upon the ladder will have  be a principal but when the Act take away clergy under such a particular  description and circumstance it be quite otherwise he say the case of page and  Harwood agree in point with the reason of this and if two quarrel and a three  person be the incendiary and put they on and so in truth be the worst of the  three and one of the two stab the other be who stab shall lose his clergy and  he that set he on shall not and the reason be because one be within the  description of the statute and the other not for clergy be not take away from  the offence of man slaughter but from the person commit manslaughter so and so  yet in truth be that encourage the other to stab in consideration of law be as  much guilty as the other of the manslaughter the statute of malefactor in park  describe the offence as a common trespass and raise the penalty upon such  common trespass do in a park but here the statute raise the penalty upon a  person who shall in a park where deer be usual keep c and therefore this be  not within the letter of the Act ought not to be bring within the equity of it  and he conclude that the conviction ought to be quash but the court be against  himSee the case of king v John Royce burr and the case of midwinter v sims in  the appendix to the three edit of foster crown law a