case the queen against whistler if a statute enact that if any person or  person shall course bunt take in toil kill or will any deer or shall be aid  and assist therein that then every person so offend shall forfeit so much  a  person who aid and assist another by persuade he to hunt and kill the deer by  lend he a dog and a horse for that purpose be a principal offender although he  be not actual present at the time the offence be commit S c Mod S c salk S c  holt S c ld ray the defendant be convict before a justice of peace on the  statute will mary c a repeal by Geo c S and other provision upon this subject  enact see hawk p c that edit chap a set forth that the defendant be forbidden  et injust to give help to one Rolf in kill five deer by persuade and excite  the say Rolf to hunt and kill the same by lend a dog to hunt and kill the same  and a horse to bring they away contra form to cause to stand the question be  whether the defendant be a aider and abettor therein within the intent and  meaning of the statute and whether if the word aid and abet be not in the  statute the defendant will not be a principal powys gold and Powell justice  adjudge he to be guilty within the statute against the opinion of holt chief  justice gold justice hold aider and assister therein to be the same as aider  and assister thereto and from the preamble of the Act infer that the defendant  be within the meaning of the Act b the preamble of the statute recite whereas  notwithstanding the many good law before this time make which do prohibit  unlawful course hunt or kill of deer yet inasmuch as the penalty thereby  provide be find by daily experience not to be sufficient to deter diverse  disorderly person who confederate together in great number make among  themselves as it be a brotherhood and fraternity whereby if any of they shall  be discover and convict which seldom happen because of their great force and  clandestine manner of cohabitation they by a common contribution for the most  part advance and pay for such person so apprehend the pecuniary penalty  inflict on such offender by reason whereof the other confederate escape  discovery and condign punishment therefore for the more effectual discovery  and punishment of such person be it enact that if any person or person shall  unlawful course hunt take in toil kill will or take away any red or fallow  deer in any ground enclose or shall be aid or assist therein that then every  such person so offend by unlawful course or hunt only when no deer be take  wound or kill shall forfeit l and in case any deer shall by such person or  person be wound take or kill such person or person shall respective forfeit l  c b and that aid and assist ought to be take in the large sense be a remedial  statute modern report er p it be object that aid and assist therein must be in  the fact for that aid before the fact be incite but not assist c modern report  but aid may be before as in Rep he that give his consent to a trespass be a  principal and so a aider in the fact so he that incite be aid in make false  money be guilty of high treason and sharing in sin before the fact but if the  word abide be out yet he who aid before the fact be a principal be only a  trespass Henry upon the statute Edward whereby it be provide against  trespasser in park that if any be thereof attaint great amends shall be award  and he shall have three year imprisonment c here commander be not mention but  they be adjudge trespasser powys justice I think all person aid and assist  though not present yet they be within the statute by Edward c de malefactor in  to act sparingly it be enact that the party shall make amends suffer fine and  imprisonment and find surety yet I do not take aider be within that statute  but the word aider and assister be in this statute but if those word be not  there the defendant will not be in the statute because it be a penal statute  and not to be extend far than a easy interpretation will bear yet I think it  shall be extend far than to those present for if a man persuade to kill and  lend dog and horse and they be use accord he be aid therein Lord coke a Inst a  say the word aider may comprehend all person encourage though not present in  the case of Evans v finch b cro car b upon the statute Elizabeth which take  away clergy from those that break a house and steal above the value of five  shilling one get by a ladder into the house and the other only stand upon the  ladder but do not go in it be resolve that clergy be not take from he that do  not enter the house but that come not to this case the word aider not be in  that statute there be also several statute wherein aider be mention and yet  not construe to extend to those that be absent but they be answer by  distinguish betwixt act relate to felony and act that relate to other crime  those that relate to felony be take strict in favour of life and also because  it will otherwise confound the species of crime and make accessary and  principal the same for that a accessary modern report may be in felony but in  trespass all be principal the preamble of this Act make it appear to be a  remedial Act and none of the former statute have reach to this case therefore  the very word aid and assist be put in to reach the very mischief mention in  the preamble Powell justice hold it to be a good conviction a objection have  be make that this be a penal law and the penalty be not annex to the offence  but to the person of the offender and their aider and abettor therein and  thence it be urge that be that be not present but incite other to do the fact  be not within the word of the statute but if it have be annex to the offence  it will have extend to all that be abettor thereto as well as therein I shall  not urge it from the preamble it be a penal statute and not to be expound by  equity but I think he be within the letter of the statute he be a aider  therein as much as if modern report er p he be present at the fact where a  felony be make by Act of parliament there will be accessary both before and  after the fact by the statute of Westminster the second a Edward c the word of  which be if a man do ravish a woman marry maid or other when she do not  consent neither before nor after he shall have judgement of life and member  and likewise when a man do ravish a woman marry lady damsel or other with  force although she consent after a if a man commit a rape be shall have  judgement of life and member nothing can be more penal than that yet nobody  doubt but aider be ravisher b a Act say Lord hale that make a offence by name  as rape c to be felony virtual make all that be present aid and assist  principal though one only do the fact hale p c b and a woman have be for that  reason adjudge a ravisher c yearbook Henry c but see yearbook Edward foe bro  Abr indictment pl foster c l App c the statute de malefactor in to act  sparingly be a penal law the word be trespasser in park and the first question  that arise on that statute be in the thirtythird year of Edward the first d  yearbook Edward foe d and there it be adjudge to be intend only of  misfeasances in hunt and not take away cattle then come another case in the  five year of Henry the five e yearbook Henry foe e where the jury find that  the defendant do break the park in order to hunt but he kill no deer and yet  adjudge he be a hunter within that statute in the thirteenth year of Henry the  seven f yearbook Henry f another action be bring on that statute and it be  adjudge that request another to bunt be hunt himself though that be a penal  law in felony the procurer will have be a accessary and why not in a  misdemeanour the case of Evans and finch g cro car see also hale p c hale p c  g seem only to go on this distinction where clergy be take from the offence  and where from the party modern report offend for where it be take from the  offence it be take from all that aid thereto but if take from the person enter  into the house that case say it shall not be take from the aider or assister  but that be a case in favour of life h Lord hale say when a statute ousts  clergy it be only so far oust and only in such case and to such person as be  express comprise within the statute for in favor vit et privilegi clerical  such statute be construe literal and strict hale p c h and I know not whether  it will be a case to rule other by I see hawk p c ch S page I holt chief  justice differ from the rest a penal statute be not to be expound by equity  but you must adhere to the word king see   hale p c foster c l App to foster  king though the fact may be within the reason of the statute and of as heinous  a nature as that intend to be punish that this be a penal statute be without  all question for there be a penalty and the trial be put out of the common way  by great Charta by the page or peer and this be subject to a private  jurisdiction before a private justice in his house or chamber we ought to  adhere strict to the letter since then the preamble be not sufficient to bring  this man within the penalty there be no word in the statute that can do it for  though in the preamble of the statute there be a mischief recite which be  combine and confederate yet there be no word in the statute which inflict a  penalty on combine and confederate then consider the word of the statute and  they be aider abettor and assister therein in the fact not aider c thereto but  in the fact a man lend his horse and dog to hunt he be a aider thereto but he  do not assist in it if the law take away clergy from he that shall commit  murder c aider abettor and assister yet you will not take it from accessary it  be observe that this be of a inferior nature to felony and be only a trespass  it be true if the statute have inflict the penalty under the name of a  trespass in park only then the commander and abettor before as well as those  present will have be comprehend because they be by law trespasser and modern  report er p the statute de malefactor in to act sparingly make it penal and  because it be do in a special manner but because it be a trespass in the park  but here the statute set forth the offence in particular modern report  circumstance and the penalty be inflict not as it be a trespass at large but  as it be so distinguish as to the case of king v Evans and finch a cro car a  that the statute take away clergy from he that break the house and take away  to the value of five shilling two go together one break the house and the  other stand upon the watch they be both principal in this but clergy be take  away not on account of the felony only but on account of the felony with these  circumstance of enter and take away but if clergy be take away from burglary  it be not only take from he that break but from he that stand by and it be  take away from all that be guilty of that crime that be contain in the  burglary b see appendix to the three edition of foster c l b but if clergy be  take away from he that gob on the highway and assault in such a manner he that  stand by shall not lose his clergy if a Act of parliament make that a felony  which be before but a trespass the species and nature of the fact be change  therefore the abettor must be felon because they can be trespasser and so if a  Act of parliament shall make that treason which before be only felony those  who before be only accessary will now become principal because the species of  the crime be change but this Act of parliament do not alter the nature of the  crime but only inflict a high penalty and therefore ought to be take strict in  those circumstance that be prescribe therefore I can agree to extend it beyond  the letter and do think it not to be a good conviction but judgement be enter  accord to the opinion of the other three justice c see the case of midwinter v  sims foster c l d edit App and king v John Royce burr to c modern report  trinity term the second of queen whether in the queen bench sir John holt Knt  chief justice sir John Turton Knt sir Littleton powys Knt sir Henry gold Knt  justice Edward Northey Esq attorneygeneral sir John hawles Knt solicitor  general