
    STATE against BARNA and LOVET JERNAGAN.
    THIS was an Indictment against the Prisoners under - -4ct pf 17"79, c. 11,, § 2, tried before Danii.l, J. at Wayne Superior Court. The indictment contained three counts. 1. Charging the De|gndants with having feloni-pusly stoleife taken and carried away, a male slave named J Amos, the property of J. G. Pender, contrary to the Act 8se* 2. Charging them-with having feloni-ously seduced, taken and conveyed away the slave, with him to their own use, Sec-Pn intention to appropriate mm iV- mm u.vn ⅛⅞, Charging them'with having feloniously seduced, taken ° • ° - J . and conveyed away the. slave, with an intention to sell and dispose of, contrary-to the Act, &c.
    . On'the trial, the Jury found a general verdict of guilty, both the Defendants ; and a motion was made fpr a New Trial, on two grounds'. ' ' .
    Larceny or se, der the’-lct" of 1779, can-mined ⅛'a slai-e, where the owner, through his a-tc^ andasaorta-though tion; ..... such consent tyasgiven for the purpose of appreilending lit where the Defendants bring a slave such assent of the owner, but in pursuance of a plan matured before the assrobgive», if the Jury are satisfied that both Defendants were privy to the felony, and equally concerned, they may properly convict them. . • -7
    A New Trial was however granted as to one of the-;Defendants, because the Charge - of the Judge stated generally, thathf he aided and consented, he was equally guilty with the other, without distinguishing the different parts of the transaction, viz. before the owner’s assent given, and afterwards, whereby the Jury might have convicted liim solely for acts after the assent of the owner was given'; and it is impossible to say, upon what of the evidence the verdict was founded.
    Is a person who is an aider and abetter under this Act of Assembly, entitled to the nefit of clergy ? Query. -
    
      1st. ]^or misdirection of the Judge in his charge to the Jury. The evidence was as follows : .Jeremiah Deans, who was the principal -witness on behalf of the State, stated that he left Waynr.sborough on the 13th-of'March, 1816, to go to George Deans. When he got to Dr. Broxvnrigg'i gate, in said town, he met Barná Jernagctn, one of the Defendants, who.took him aside, and asked him when he was going to the State of South-Caroliria (or to the southward) with negroes. Defendant informed Deans he had five or six negroes1 lying out, that did not belong to him, who wished to be carried away, and he wished Demis to assist him in conveying them away. Defendant asked Deans the consequence of doing.this act? Deans informed him he did not know, but expected it would go hard with him. Deans then left him and went on, and informed George Deans of the conversation. On the 18th of March, he was coming to Wayncsborongh, and met the other Defendant Lovet y-ernagan, who informed him Bar-na wished to see him, and desired Deans to go to his house. Deans Went to Barna's house, when Barna told him, three of the negroes were out, viz. Amos, his wife, and youngest child, and the other three he could get out at any time. Defendant Barna informed him the negroes were J#hn Coor Pender's. Deans and Barna agreed to meet at a sale which was to take place at Dinkins's on the 20th of March. He met Barna at the sale? when Barna informed him three of the negroes were not outr They then agreed to meet at Waynesborovgh the 22d of March, when Barna was to let him know when the negroes would be ready to start. On that day Barna did not come, but the other Defendant, Lovet, came, and informed Deans that he was to go with Deans and the negroes to the south. Witness informed Lovet, that he must see Barna before he. started, and sent word by Lovet that Barna must meet him at 31’Kinne's mill. Barna met him, and then in- * « formed him all the negroes were out. They then agreed that the negroes were to be sold, and the money to be divided equally between Deans, Lovét, and 'B^rna. He pro- ' raised to deliver the negroes-at a mill-strqam of Airs. Boon’s.iij the county of Johnston., on the night of the -24th of-March, when Deans was to be ready to receive them, and, with Lovet, to take the negroes to the southward. Deans asked him for a bill of sale. He agreed to give one. Deans wrote it, áñd was requested by har-ija to insert other than the true names of the negroes, as he expected they would be advertised. After the bill of sale was Wrote,, Barna .refused,,to sign it, but said, he would prepare one, and bring it with him when be delivered the negroes. Deans informed Perkier of the whole transaction, .who advised Deans to go on in the business. Deans and Pender had men placed at Smith-field bridge to apprehend the negroes and Lovet, one of the Defendants. Deans '.vest to the mill-stream on the night of the 24th, as agreed on. About ten o’clock at night, Barna ?a\d Lovet came to him, and informed him the negroes had taken a scare, expecting a trick, and would not go, unless Deans would assure them that they were really going to the southward, and he must go back v/ith them along the road where they were. Deans then went back from three to five miles with 'Defendants, to aplace (which' was proven to be in the county of Wayne, 12 or 15 miles from Defendants’ house) when Barna called “Bush.” .No answer was given. Barna then rode into the woods, and returned with the negro man Amos. He (Barna) and Amos again returned into the woods, and brought the woman and children. Barna put one of the children in the lap of Deans, and Amos, the negro man, put another behind Lovet, on his horse. Deems, Lovet, the negro Amos, and th$ others, then proceeded on their intended route. After travelling all night, they were taken at daybreak, by the men placed-at the bridge for that, pur-
    
      
      , It was proven, that 'the negro Amos was the property of Pender, and known to be such by Defendant.— The negro Amos had been run away from - Pender upwards of nine months, and was out of the.actual possession of Pender at the time aforementioned, but in -the possession of no other.
    The Judge, in his charge to the Jury, told them, if they believed the evidence, every material allegation in the indictment was sufficiently proven. He further told the Jury, that if they were satisfied from the evidence that Lovet was present, aiding and consenting to the transaction, he was equally guilty with Barnet, who was the active person ; and it was his opinion, the agency Lovet took in the affair, from the time Amos was put into his and Dean's possession in the road, to the time they were taken at the bridge, he. well knowing Amos to be the slave of Pender, and conveying him on with a view tq sell to some person to the southward, was sufficient to convict him under the statute.
    2dly. Because Defendants were improperly refused a challenge for cause, made to one of the Jurors. Needham Whitfield was drawn as a Juror, qnd cxamin*d as to his competency. He was asked whether he had formed an ■opinion as to the guilt or innocence of the Defendants? He replied, he had formed an opinion. He was then asked if he had expressed that opinion ? He replied, that he believed he had. He was then asked by the Court, to whom he had expressed his opinion? lie answered, that he could not recollect—but that he believed he had expressed it, but was not certain. He was then asked by the Prisoner’s Counsel, Where he staid the preceding-night, and whether the case of the Prisoners was not the -subject of conversation, and whether he had then expressed his opinion? He answered, that he staid at Dr, Brownrigg’s—that the case of the prisoners was there the subject of conversation, but that he did not recollect that he then expressed any opinion. .
    He wá|j§!cballenged by íhé Prisoners for cause, and the challenge overruled,by the Court. Being tendered to the Prisoners, they challenged him peremptorily. They made twenty-eight peremptory challenges.
    Thé motion for a New Trial'was overruled, and an Appeal taken to this Court.'
    The case was argued by Browne and Mordecai, for the Prisoners, and' Dr era^ Attorney-General, for the-State.
    
      Mordecai. There was not iri this case a taking, 1st, because a runaway slave is not the subject of larceny, 2d, because he was not taken against the will of the owner.
    1st. Property which is lost is not the subject of larceny, although the act may be attended with all those circumstances which usually prove a felonious taking. And this principle, is so established, not because the act is less heindus, or the intention , of the taker less base, but because the criminal JLaw does not extend its protection to the property.- The condition of this property was marked by every circumstance that leads to the conclusion of its beipg 'lost. It was not under the dominion of the owner ; it was not in such a place as. property of this description usually is ; it was, in fine, as much beyond the owner’s control or knowledge ns a purse dropped in the highway. The slave, had quit his master’s service, and had not the anifnum reverlendi. ■ ⅛
    This is admitted in the case of the Slate v. Davis. But from the decision there, it would seem, 1st, that.,a runaway slave cannot be said to be lost; 2d, that there is an exception to the rule, vi¿. that it only applies where the owner is unknown to the person taking the property. But certainly a slave may be lost as well as any other, chattel; and with respect to the exception, none is made in the books which treat of this subject. The case of a servant: that took'part of the money out of a purse, which his master had hid in a corn mow, and the other cases, ⅞ . ’ proceed on the ground that the owner had last his property. ’
    The reason given for the opinion, in State v. Davis, that felony cannot be committed in taking treasure trove,swaifs* or estrays, “ that the owner is unknown,” is incorrect; for an indictment may charge the stealing of the property of a person unknown ; therefore the knowledge of the taker cannot be the true test. Again : it is said in the case, “ no property vesting in estrays before the expiration of a year from the time of appraisement ’’ But the owner does not lose his title to the property by its straying, until seizure by a person having a right to seize. He has a right and may enforce it by a civil action, though the property is not protected by the criminal law. The case proceeds, “ and in these it is always understood that the 0w-> ner is unknown to the person taking them up.” But the writers put it on a different footing. “ Our law, which punishes all theft with death, if the thing stolen be above the value of twelve pence, and with corporal punishment if under, rather chuses to deal with them as civil, than criminal offences, for this reason in the above-mentioned Case concerning goods lost, because the party is not aggrieved, where nothing is taken but what he had lost before.” When a horse is taken while grazing in his owner’s or a neighbour’s grounds, it is felony, because such is a usual situation for a horse. So if the slave had been found off his master’s land, and had the anhnum re-vertendi, or, as the book says, where such property is, or ordinarily may be placed. But the negro was not in a place where negroes are ordinarily found.
    2. To constitute larceny, the property must be taken invito domino. This results from the definition of lares» ny and is proved by the case of Re v. M'Daniel & al,
      
       The réáson bn which, the Court proceeded in that cáse, was not that Ellis and'Kelly were not as guilty, in á moral pointfsf view, as if Salmon, the person robbed, had no hand in concerting the scheme ; but it was because the '8°°^® were not taken against the will of Salmon. Now it is immaterial whether Pender assented to this scheme, to the end of punishing the. defendants, or of promoting liis own interest by getting, by these means, his property into his own possession. It Í3 clear that he did assent.
    The only difference between M' Daniel's cáse and the present, is this, that in that case, Blee engageá the persons to commit the act; in this case, the prisoners proposed it. But the property did not go into their posses%sion against the will of the owner, more in one case than in the other. The remarks made on Nordeñ's cáse, are strictly applicable to this. For here, Deáns Was active, and but for his agency, the act would never have been done; for the negroes refused to go till he returned.
    Lastly* There was no carrying away ; because Deans acted as the agent of Pender, who had he been present himself and received the property, there could have been ho carrying aWay. He received it by his agent, and that is equivalent to a reception by himself. It would be repugnant to . common sense, to make the act of restoring property to the owner’s possession, the carrying it away out of his possession.
    With respect to the prisoner Lotet, he did not seduce the slaves, but merely went to carry them off in company with Deans. The Act of Assembly does not extend to aiders and abettors ; and if he was no more, he cannot punished as a principal within the act. He certainly did not steal the property, for he did not take it out of Pender's possession; nor did it ever come into his possession, for the moment Barna abandoned it, it went into the possession of Beans, who had a right to receive it. But if he did steal it, a New Trial should be awarded; for, as the conviction stands, he may be capitally punished, whereas if only convicted of the stealing charged in ⅛⅛. first count, he would have his clergy,
    Drew, Attorney-General.
    After the solemn decision of this: Court, in the case o£ the State^v. Davis, I had ceased to consider it as a dispú-table question, whether larceny could be committed in ⅜ runaway slave, when the taker knows him to. be run away. It is supposed, however, that a course of incorrect reasoning, has led to an erroneous conclusion in that case ; that postulates have been assumed, where propositions should have been proved j exceptions made, which are not to be found in the books; and reasons given, not recognized by legal analogy. And if this be so, I admit that the dei cisión ought to be revised, and the doctrine it maintains, repudiated. But if the opinion of the Court in that case be examined, with a due. regard to the usual canon of legal criticism, according to the facts proved, and secundum subjectam viateriem, i,t will be found to litter the language of reason, and to rest on the basis of sound legal prinr ciple. How the Court would decide a case, which presented the abstract question, whether felony qould be committed in stealing a runaway slave, I cannot pretend to determine ; for assuredly it has not been decided in the State v. Davis. A fact found by the Jury in that case was, that Davis knew the slave to be run away, and whom he belonged to j and the Court affirm the proposition, that, under such circumstances, felony may be committed. Then, admitting for the present, that a runaway slave is lost, yet even in the case of goods lost, the finder, in or-dervto defend himself, must, in the language of the books* really believe them to be lost, and‘cannot colour a felonious taking under such pretence .” Now, knowing,that a slave is run away, and knowing also whom he belongs to, negatives every presumption that he was taken up as property v.
    But with what propriety can a runaway slave bo said to be lost ? The Prisoners’ Counsel has run a parallel of resemblances between them, but has omitted the points in which they differ. A slave commits a crime in leaving Bis master’s service ; and any free person taking possession of him causa Inert, is subject to the penalty of the law. Of no other chattel property that is lost, can this be predicated. A slave is a moral agent, who, yielding to the influence of fear or of hope, may be driven, or induced, to' abandon the service of his master. Either of these passions might be worked upon, and roused into successful operation, by means so secret, as tq defy proof and elude detection; and if the slave, being once run away, might be stolen with impunity,—a species of property, forming so large a proportion of the wealth of the State, would be more exposed to depredation than any other kind, Facilities would be held out to the commission of crimes on a kind of property requiring, from its peculiar exposure, more of the repressive energy of the law, than any other that can be named.
    It is said, that the reason given in the case of the Stat$ V. Davis, why felony cannot be committed in taking treasure trové, waifs or estrays, because the owner is unknown, is incorrect. If the Court have erred in this instance, they have done so in company with Lord Cokey who, in giving the reasons why larceny cannot be committed in these things, says, “ both in respect of thé finding, andalso for that dominus rerum non apparet." 
      
    
    It is true, that a person may be indicted for stealing goods whére the owner is unknown ; but he cannot, he indicted for stealing lost goods, where the owner is unknown, Nor does the reason given by LLaxvkim why the Jaw will not act criminally against the finder of goods, apply to the case of a runaway slave ; for the owner is much aggrieved, when, after his slave is run away,,the chance of regaining, possession of him is lessened, and perhaps destroyed, by ’a felonious asportation. This part of the case may be concluded with a general remark : That whenever the principles of the criminal law are applie'd to a species of property unknown to the people for whose use that law was instituted, it is absolutely necessary to consider the reason and spirit of the law, and so to interpret and' enforce it, that slaves may be as effectually protected as other chattels. I*will not pursue this idea through any of its consequences, because they must occur to the Court; but it is evident, that an adherence to the letter of the law, without regard to its spirit, would leave slave property wholly unpyptected, as the common law knows no such property.
    In answer to the defence arising from the slave being taken with the consent of Pender, through the agency of p)eans, I will only cite Egginton’s case. If it be authority, it must govern this case, being expressly in point.
    And as to Lqvet, I cannot distinguish his case from that of Barna •, both are alike guilty, or alike innocent. Nor will the verdict against him deprive him of clergy, if by law he be entitled to the benefit of it; fot the proper time to claim it, is after conviction.
    
    Browne, in reply. I can add nothing to what Mr; Mordecai has said on the question, Whether larceny can be committed on a runaway slave ; but shall leave it on the strong ground where he has placed it. If this case is examined by the principles which certainly formed the Common Law, till the time of the Revolution, it will clearly appear that no larceny has been coi$toitted. In M‘Da-tiiel’s case, decided in 1755, the Defendants were acquit- I ted, because Salmon's property was not tafeen froim him against his will. Asad the principles there' laid down, had been always respected before* and continued to be thfi undoubted Law of England until Eggint'orCs case, determined in-. 1801; for NonderCs caséis not at vaiiance with that of MiDaniePs, because in the former there was a previous concert with the highwayman, that the robbery should be effected, EggintorCs case is an innovation upon the Law which can only be made by the legislature: ¿t was decided since our Revolution, and, jt met the disapprobation of Mr. Justice Lawrence.
    
    2. But suppose that a felony might be committed, notwithstanding the situation of the property, and the assent of the owner, the Prisoners are not guilty of one, under this Act of Assembly. In every accusation, it is incumbent on the State to prove the facts from which the law is to infer guilt; then, and not till then, is a Prisonerbounff to prove a justification or excuse. In murder, the homicide must be proved 5 and in larceny, the taking and as-portation of another’s goods: So,on this Act of Assembly, the stealing, or by violence, seduction, or any other means, taking or conveying away slaves, &c, such persons can only be convicted under this Act of Assembly, asare proved to have committed the act, under all the circumstances and qualifications which are enumerated.
    
    Several persons were indicted upon the 8th Eliz. c. 5, for privately stealing; a bank note from the person. It appeared in evidence, that the note was lost during a drunken scuffle, ancj it became impossible to ascertain which, if any, of the prisoners, had stolen it. The Court said, the statute upon which this indictment is founded, takes ¿away the benefit of clergy from those who shall be found • guilty of privately stealing from the person; and as it is silent r&pecting'aiders and abettors, it must be construed to,e.xtend only to principals in the first degree-Jt&loys, therefore, that the hand alone which takes the property can be guilty of the offence > and as it is uncertain which of the prisoners took the note, it is impossible to find any of thém guilty of the capital charge  So under this Act of Assembly, those present, aiding and abetting, are not guilty; it can only be the hand that tdok or the tongue that seduced. From no part of the testimony can this be ascertained, nor any stronger inference made against BShrna than that he was an aider and abettor.
    There is still less pretence for considering Lovet a principar in the first degree, or guilty under the statute* He was not even an accessory at the fact, or a principal in the second degree, at Common Law. And oh this point, his case was not submitted correctly to the Jury; the words used by the Judge were, “ present aiding and consenting,” but the terms employed by the Law are, “ present, aiding and abetting.” An abettor is an instigator or setter on- Whereas consenting is a passive act of the mind, a yielding to persuasion, solicitation, or importunity. There is a plain difference between the guiú of being present at an act like this, and that of instigating another to commit it.
    
      
      Hawk. 134, 135. 2 East 663.
    
    
      
      
        2 Car.L.R. 282.
    
    
      
       Haw. 135. §4.
    
    
      
       2 East 664.
    
    
      
      
        Haw, 135.
      
    
    
      
      
        2 East 664.
      
    
    
      
       2 East 533, 655.
    
    
      
      
         Foster 121.
    
    
      
      
        Foster 129.
    
    
      
      
         Foster 355.
    
    
      
       2 East 664
    
    
      
       3 Inst. 107.
    
    
      
       2 East 666.
    
    
      
       4 Blac. 366.
    
    
      
      
         Foster 121.
    
    
      
       Hayw. 154
    
    
      
      
         Foster 355.
      
    
    
      
       Innis's case, Leech 9.
    
    
      
      
        Blac. 34. Hale 233 Faster 350
    
    
      
       Jac. L. Dtc.
    
   Taylor, C. J.

I ought to distrust the correctness of the opinión I am about to deliver, when I perceive that it differs from that of all my Brethren, in relation, to the prisoner Lovet. But as I haye examined: with attentioji all the cases cited, and cannot see my way clearly, in any other direction, I feel it to be an indispensable duty to pronounce the ’best results my own understanding will enable me to arrive at. These are, 1st, that the evidence against Lovet vras too slight and unsatisfactory to audio* rize his conviction ; and that even in a common question of property, a verdict so found ought to have been set aside. 2. That if, upon any view of the testimony', the verdict against Lovei czxi be sustained, he is nevertheless entitled, under a fair construction of the Act under which he is indicted, to the benefit of clergy. I will give the reasons which have led me to these two conclusions, and will afterwards speak to some minor points in the case.

1. The natural divisioii of the testimony is, into those circumstances which took place before Pender had been made acquainted with the transaction, and consented to it; and those which occurred afterwards. If nothing but the latter class had been proved against either of the Prisoners, I think they ought both to have been acquitted, on account of, the assent oí-Pender ; and I take this opportunity of expressing my entire concurrence with the doctrine laid down in Daniel's case. ' These latter circumstances can only affect the Prisoners by way of evidence, so far as they can be connected with proofs of guilt existing before Pender's consent was given; and I agree, if any thing be proved before that time, which implicates Lovet in the crime of stealing or seduction, his subsequent conduct of carrying the slaves to Smithjteld bridge, may properly be connected with such proof. But beyond this point, I do not feel justified in proceeding. If Lovet was not a guilty man before Pender consented to the larceny, I cannot agree that he shall be considered so afterwards.

In considering the testimony, I cautiously abstain from drawing any inferences from the facts stated.—that is the province of a Jury. I take them nakedly as they are exhibited in the record, which is drawn up with much care.

The first of the Defendants who appears is Barna, Who told Deans that he had the negroes lyjng out, and expressed a wish that Deans would assist him in carrying them away. Five days afteryvards, Deans met Lovet, w,ho merely delivered a message top Deans, that Barnet wished to see him.

Lovet did not say that he had negroes lying out, or thát he-knew they were lying out, or that¡he wanted assistance to carry them to the southward. Hé did not, in, short, htíet á single word abotit hegrdesi

When, in consequence of this message, Beans went to Rama's house, whom did he see there ? Not Lovet, but Barna, whb Informed him that three of the negroes were put, and the rest he cbiild get Out at any time. Upo& this occasion, Barrid agreed to meet the witness at a saléí and when afterwards they met there, BaMa informed him that three of the negroes were not out, but he would, let him know when they would be ready to start, if hé Would meet him at Wdynesborough on the 22d. Barh'a did not attend at the day; but Lovet appeared, and for the first time, spoke with Deans about the pegroes; but did not, in my opinion, say any thing which can justly fasten upon him the guilt of stealing* of Seduction, or even a knowledge of either. “ He was to go with Deans and the negroes to the south but whether he was about to do right or wrong, whether Barna acquired the negroes feloniously or otherwise, it does not appear that he knew» At this tithe, Beans sent a message by Lovet to Barna, that the latter must meet him át M' fcinne's mill. But Deans did not charge Lovet to accompany Barna, nor did he hold with him that sort of free communication and disclosure, that confidential intercourse, Which would seem to be natural, in a case where Deans believed that Lovet had been privy to the felony, or aided ih it. He did not* in short, Unbosom himself to him further, than he might safely do to a man who was employed to carry negroes to the southward, without knowing whether the possession was fair or fraudulent.-

But the case states that they met at the mill, t ask did Lovet meet ? He was not requestSd to do so by Beatify who expressly said, he (Barda) must meet rae (not us) at M’Kinne’s mill, Barna met him (not them) áftd then they agreed that the negroes were tobe sold and divided betWeeri¡ the three 5 átid that they were to be delivered at a mill-stream of Mrs. Boon’s, on the 24th of March, Mien Deans was to receive them, and with Lavet, to convey them to the southward. - : * ■'

No construction of this part of the case, will warrant the conclusion that Lovet was present at this meeting, or any party to the agreement, relative to the sale of the ne-groes and the division of the money. If I have read the record,aright, it states that the Defendant, in the singular number, knew the negroes to be Pender’s. Which of the Defendants, or at what time he knew it, whether before Pender’s assent, or ¿fterwards, it does not specify.

After this period, the aSsent of Pender was given j and as in my opinion, all the the testimony against Lovet before that time, is, without straining or refinement, susceptible of a construction which leaves his guilt unproved} it ought to receive it.

2. The Prisoner is indicted under the Act or 1779, c. 7, whicli makes it a capital felony to steal a slave ; and the enquiry I shall now make, is, Whether, upon, the supposition that was present, aiding and abetting Barna, but not having actually stolen the slave himself, he shall be entitled to the benefit of clergy.

In a question of so much delicacy and importance, connected with the criminal law of the country, and with that part of it too which denounces the punishment of deaths I know that á Judge should take every step with, the utmost caution, and advance no prihciple which he is unable to produce the best authorities in support of; for as hi* province is jus dicere etnon dare> it is only by an inflexible adherence to wha^the law has declared, and by reasoning from well established principles, that he can contribute to that harmonious movement of the different powers of Government, which forms the essence of Civil liberty.

In the correctness of the principles which I shall lay do\ym I have the utmost confidence, because they-are derived from the most authoritative sources; my reasoning from tffem may be erroneous, and on this point I cannot competently judge,

1. That where clergy is taken away from the principal, it is not of course taken away from the accessory, unless he be also included, in the words of the statute.

2. That where it is only taken away from the person committing the offence, as in the case of stabbing, or committing larceny ,in a dwelling-house, or privately from the person, his aiders and abettors are pot excluded.

3. But 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, being present, aiding and abetting the crime, is as well excluded from the clergy, as he that is. principal in the first degree.

.The two first principles will, I think, be found to apply to the Case under ccnsideration, and to furnish th*rule by which it ought to be decided. I have cited the last for the purpose of shewing, that the Act of Assembly under which the Prisoners are indicted, extends only to the persons committing the offence, and not to, the offence itself.

Persons who are present at the commission of a felony, and aid and abet the principal felon, are, at common law, punishable in the same manner with the principal, because they are cohsidered principals in the second degree. But they were formerly considered in the light of accessories ; a notion which ^gradually yielded to considerations of the justice and propriety of bringing them to trial while the fact was recent and susceptible of proof, instead of waiting for the conviction of the principal. They are therefore considered as principals for many purposes, ancj especially for all the purposes of punishment, by the common law. ^

Put when statutes began to be passed creating neyrfei Ionics, or aggravating the punishment of felonies then'ex-jsting, Judge's were called upon to pause and reflect, by the rule of law which demands a strict construction of penal statutes, fhe question wás directly put to them* Shall he be condemned to death, whose offence is not specifically described in the Act; jjpd who is only a principal by a sort of legal fiction, invented for the furtherance of* justice, and adopted without any foresight, that the name 'given to, and%e character vested in him, would subject him to a severer punishment by any law thereafter to be passed ? ! '

Let us see how they answer this question in the first case that occurred. The statute of Eliz- 39, c. Í5, enacts tha. clergy shall not be allowed to any that feloniously takes away any thing in the day-time amounting to the va'i lue of 5s. out of any dwelling-house or out-house, albeit no person be within or pear the same, Evans and Finch Were indicted under this statute, and it appeared in evidence that Egans, by a ladder, climbed to the upper part of the window and took out the money ; and that Finch stood upon the ladder, in view of Evans, and saw him enter into the chamber, and was assisting and helping hint in the robbery, and took part of the money. It was adjudged that Finch should have his clergy, because it was taken away only from the person offending, and not from the offence.

If in that case Finch had been indicted at common law, he would have beén considered a principal in the second degree, and punished in the same manner with Evans ; but because the statute did not particularly describe the pa£f; he took in the felony, he was entitled to clergy.—⅛ The statute speaks of a stealing in the house, therefore he that stpaleth, or is a party to the stealing, being out of the house, is not ousted of clergy It is equally clear, that m the construction of law, the entry of Evans was the entry of Finch ; but because the Court were giyiiig á struction t^a statute highly penal, they would give it no other than a strict and literal one. Aiders and abettors were neither named nor described in it, and therefore they should not be punished under it.

The construction which has been put upon the statutes' of stabbing, is much in point to establish the same doctrine. Wherever persons are present, aiding and abetting him who makes the thrust, they shall be entitled to clergy ; although if indicted for manslaughter at common law, they would have been principals in it.

All the feasons given jn support of these decisions, do, ip my opinion, apply with the utmost precision, to the , Act of Assembly under which these Prisoners are indicted. “ Any person or persons who shall hereafter steal, or shall, by violence, seduction, or any other means, take,” &c. It does not describe the offence of an aider or abettor, any more than the statutes of Elizabeth, or those of stabbing ; it is as penal as any other law, and describes an offence, part of which was felony at common law ; it takes away the benefit of clergy from the offender., and not from the offence, and bears a near resemblance to the statute on which Innis was indicted. For that was made to punish stealing in a particular manner, viz. privately from the person, and it takes away clergy from those who are found'guilty of the offence. So the Act of Assembly under consideration, designed not merely to increase the punishment of stealing a slave, which was a felony at common law, but it extended beyond this, and punished with death other modes of taking away slaves, which, in-my opinion, wfere pot felonies at common law ; for a taking by violence, does not necessarily imply a féi ionious taking, unless ii be violence to the person of the °wner ; Nor would taking a slave upon a claim bf right, -amount to felony ; for if there wej-e any fair pretence of property in the prisoner^ or it "be brought into doubt, at all, the Court will direct an acquittal.

The occasion of passing this Act of Assembly, is men* tioned by an eminent Judge, who was in active lile at that period, audit appears from thence, that it was intended to repress a variety of new modes of taking slaves, which had grown out of the turbulence of the times, “• under pretence that they belonged to the public as confiscated, or that they were owned by disaffected persons or the like.” From these considerations, I think it appears, without any strained inference or forced construction, that part of the object of the Act of Assembly, wasj to take away clergy from larcenies of slaves, under particular circumstances ; and if so, it comes within the reason of all the cases where clergy has been allowed ■ ai(jers and abettors, when not named in a penál statute.

3. On the last position I have laid down, it is unnecessary to make many remarks, because if any thing is proved by what I have before said, it is, that the Act of Assembly does not take away clergy from the offence, but from the offender. The statutes which oust clergy in murder, robbery, &c. have received a different construction, because the Legislature made use of terms, which at the time of making the Acts and long before, were well known to include aiders and abettors. The offences called murder, robbery, burglary, &c. are technically so described, and aiders and abettors were liable, when the statutes were passed, to be convicted as principals in,them. But taking a slave by “ violence, seduction, or any other means,” &c. was not a technical description of any offence known before the passing of the Act; and, therefore, he alone who takes or seduces, not he who aids and abets, is liable to the punishment of death under it. ,

The Charge of the Judge has been objected to, because it used the words present, aiding, and consenting; and it has been intimated, that the Jury might have been misled by that circumstance. I do not think the Charge exceptionable in that respect; though I admit it is always most safe to employ the established terms of the Law, to which the wisdom of ages has given sanction, and usage a popular and explicit meaning. We are not, however, to be governed by the sound of words, but by their true legal import. Even in drawing indictments upon penal statutes, in which the Law particularly requires strictness, it is not essential to follow the very words of tfie statute, provided words of equivalent import are used. To consent, signifies “ to co-operate to the same end,” and a person who does so, and is also present and aiding, could not well be injured by the language used by the Judge.' Lórd Coke, in commenting on the statute West. 1, in explaining the words commandment and aid, as applied to accessories before the fact, says, “ under this word command, are understood all those who incite, procure* set on, or stir up any other to do the fact; and under the word aid, are comprehended all persons counselling, abetting, plotting, assenting, consenting, and encouraging to do the act, and not present when the act is done.” So that a person who consents, though not present, is an aider: “ for, if the person be present when the act is done, then he is a principal.” Lord Hale says, misprision of felony is the concealment of a felony which a man knows but never consented to ; for if he consented, he is either principal or accessory. These authorities show, that per-, sons consenting, procuring, or contriving, come within the words, aid and command; and to command is not less strong than to abet.

Seawéll, J.

This cáse comes up upon a motion for a New Trial, grounded upon a supposed misdirection of the presiding.Judge ; who stated to the Jury, that if they believed the facts to have been as related by the witness Deans, the Prisoners were both guilty of the charges pe-cified in the indictment; and that the Judge directed the Jury, that the agency which Lovei took in assisting Deans after his receiving the slave, in carrying them to Smith-field, was such an aiding, abetting, and consenting, as made him principal and equally guiíty with Éarna. And it has been insisted, for the Prisoners, that the receiving of the slaves and caffying them to Smithfeld by Deans, being by the consent Of the owner; and the agency in that respect by Lovet, being by- the consent oi Deans, who is to be considered as the agent of the owner; that nothing which Lovet did in that particular, can be said to be done invito domino, and consequently can amount to neither larceny or seduction. And I think so too ; and in that respect, differ from the presiding Judge. But to me it is clear, that as it appears that both the persons brought the slave to the same place where he and the others were delivered ; and that being in execution of a plan completely matured, without the knowledge of the owner ; and to which plan both persons were equally privy, and in the performance of which they appear to havé been joint actors ; that all the circumstances taken together, they constitute a complete seduction and larceny ; and if the Jury did believe them, they were well warranted in finding both Defendants guilty. Had the Charge of the Judge, therefore, been cónfinedio this part of the transaction, I should have been well Satisfied with it, and the verdict also ; but as it is impossible for me to say, \Vhether the J ury found Lovet guilty upon this part of the evidence, or upon that which related to his conduct after the delivery to Deans, I am constrained, though reluctantly, to say, that, on that account, and that only, the very diet as to Lovet, must be set aside, and a New Tríál granted.

I cannot, therefore, subscribe to the Opinion of the Chief Justice, who holds, that the finding as to Barná was right, but that Lovet, on account of the part he acted after the delivery to Deans, was aiding, abetting, and consenting, and should, therefore, have been found guilty as a principal in the second degree; for I understand the case expressly finds, that both the Prisoners knew the slaves to be runaway and to belong to Pender: and it appears also, that Lovet was privy to the plan, for he informed Deans, he was to go with him, with the slaves j and though Lovet was not at M'Kmne's mill where the project was finally completed, yet he Was the messenger by whom Barna was requested to attend ; and at the time and place the slaves were to be delivered, Lovet there appears equally engaged with Barna ; and the excuse they allege for not being able to get the slaves further, makes it impossible, to my view, that Lovet, so far, may be considered as an honest agent. On the other hand, I am incapable of discovering any difference between the agency of the Prisoners in this part of the transaction* It may be, and is probably so, that Lovet being (as I understand) the youngest brother, was stimulated and induced to act by the means or advice of Barna ; but that he did act, apd equally participated with Barna, in both the larceny and the seduction, I cannot doubt about. And if Lovet's conduct is to be considered in the light of an honest agent previous to the delivery made to Deans, there does not appear a particle of evidence to criminate him afterwards ; for, in no part of the case does it appear that he was at any time informed of the mistake he was under: this view of the castí therefore would lead to the entire acquittal of Lovet, and ought, as I conceive, with the same force, to acquit Barna. It is not necessarv for me to express any opinion upon the question raised in argu* rtieiif, Whether principals in the second degree be 0T3ste$ or not of clergy, as my opinion for a New Trial ⅛ found* e(j on a different reason; but if it was, I am very far from being satisfied that such principal is not ousted by the Act of Assembly in this case. The rule laid down by law writers, admits of a distinction between cases where clergy is taken away from the offence and where from offenders under particular circumstances. The Act declares, “That if any person shall hereafter.steal, or shall by violence, seduction, or any other means take, or convey away any slave or slaves, the property of another, with intention to sell or dispose of to another, or appropriate to their own use such slave or slaves, and being thereof lawfully convicted &c. shall be adjudged guilty of felony and suffer death without benefit of clergy.” Now a slave being goods and chattels, was at all dmes capable of being the subject of larceny, and the Legislature having ousted those whG should be convicted thereof generally, and not confining it to a particular kind, or a larceny of a slave under particular circumstances, it would therefore seem to extend to all those who, in judgment of Latí), make principals, whether of the first or second degree. And it is this distinction which distinguishes murder and rape and the privately stealing from the person, for in the latter case, the statute only ousts the clergy when the stealing was of a particular kind or under particular circumstances; so in the case of stabbing; so in the case of robbery in dwelling houses; in all which instances, the Legislature having only taken away clergy against those who should be guilty of the offence under' ¿hose circumstances, it extends to no others ; and in the case of new felonies, the same rule must necessarily apply. cases Qf múrder, rape, robbery, and burglary, the statute of Edw. 6, declares, “ that no péf son that hath been or shall be convicted of murder of malice prepense, Or of robbing any one in or near the highway, shall b’é admitted to have his clergy and the statute of Elizabeth declares, that if any person shall be found guilty of rape, he shall suffer death without benefit of clergy ; in all these cases, the Courts have uniformly held, that persons, “ convicted’’’’ of murder or robbery ijear the highway Stc.or persons “found guilty" of rape, whether principals of the first or second degree, were ousted. Our Act of Assembly has not selected any particular kind of stealing of slayes, for the words, u vvith intention to sell, or dispose of to another, or appropriate to their own use,” if they necessarily do relate to the word steal, are only such circumstances as must appear in every larceny, namely, causa lucri: and like laying murder with malice pre-pense as the statute of Edward; for in the hypothetical case put at the bar, of a taking and carrying with intent to liberate, if such was the motive of taking, I should have no difficulty jn saying it was no felony, any more than if one individual throvys his neighbour’s property in a pit, or in any other manner destroys it. Such cases might be trespasses, or what in modern times have acquired the denomination of malicious mischief, but they are hot felonious. The result, therefore, seems to me this, that as to so much of t,he act as relates to a stealing of. slaves, the ousting of the clergy is general or in other words, applies to the offence, which then will include principals of every denomination, who before the passing of the Act were liable to be convicted as such; and that it has not confined the exemption of clergy to offenders of a particular class. These are but my impressions, occasioned more by general reading than, from any particular examination of this case ; and such as were hinted to the Counsel in the course of the argument. As to Barna, Í see no reason for disturbing the verdict in relation to him ; and in respect to the objection that the slave was a runaway, that point was expressly determined in the case of the State v. Davis, in this Court, and I am well satisfied with the decision ; as to what relates to all the r objections, I think they are altogether insufficient, and that the rule must be discharged.

Judges Hall and Ruffin concurred in this opinion | Daniel, J. having presided, and Lowrie, J. absent. 
      
      
         Foster 121.
     
      
      
        2 Hawk P. C. 342.
     
      
       1 Hale P. C 329. Foster 356
     
      
      
         Cro. Car. 473
      
     
      
      
         1 Hale 427.
      
     
      
       Leech 9.
     
      
      
        2 East 659.
      
     
      
       State v. Hall 1799.
     
      
      
         2 East 743.
     
      
      
        Johns. Dict.
      
     
      
      
         Foster’s Cro. Law 355-6.
     
      
      
        Fost. Cro. L. 357.
      
     