Legal Precedents in Blackmail Cases, 1792
IN order to constitute the crime of robbery, three things are requisite: 1. There must be a felonious intent. 2. There must be a taking, but it is immaterial of what value the thing taken is, a penny, as well as a pound, forcibly extorted, makes a robbery. 3. There must be previous violence, pr putting in fear. On this last requisite, a question arose in the following case: whether to obtain money by threatening to charge a person with an unnatural crime*, and who parted with his money in consequence of being alarmed at the personal danger that might follow such a charge, was in pout of law such a putting in fear, as to amount to the offence of robbery.
* This infamous crime against nature committed either with man or beast, is a crime which ought to be strictly and impartially proved, and then as strictly and impartially punished. But it is an offence of so dark a nature, so easily charged, and the negative so difficult to be proved, that the accusation should be clearly made out: for if false, it deserved a punishment inferior only to that of the crime itself. I will not act so disagreeable a part to my readers as well as myself, to dwell any longer upon a subject, the very mention of which is a disgrace to human nature. It will be more eligible to imitate in this respect the delicacy of our English law, which treats it, in its very indictments, as a crime not fit to be named; "peccatum illud horribile, inter christianos non nominandum." As to the punishment of this crime, the voice of nature and of reason, and the express law of God. (Lev. xx. 13. 15.) determine it to be capital. Of which we have a Signal instance, long before the Jesuit dispensation, by the destruction of two cities by fire from heaven, so taht this is an universal, not merely a provincial precept. And our antient law in some degree imitated this punishment, by commanding such miscreants to be burnt to death: though Fleta says, they should be buried alive: either of which punishments was indifferently used for this crime among the ancient Goths. But now the general punishment of all felonies is the same, viz. by hanging; and this offence, being in the time of popery, subject only to ecclesiastical censures, was made felony without benefit of clergy, by stat. 23 Hen. VIII. c.6. revised and confirmed by 5 Eliz. c.17. And the rule of law herein is, that if both are arrived at years of discretion, "agentes et consentientes pari poena plectantus" [i.e., both the active and the passive partner are equally subject to the same punishment] Black. Com. 215.
On the 18th of January, 1779, the prosecutor Mr. Charles Fielding, dined at Mrs. Cotton's house in Harley-street, Cavendish-square As he was returning through Soho-square, towards the Play House, between the hours of six and seven o'clock in [p.68] the evening; he met the prisoner Donnally, whom he had never seen before. Donally desired that Mr. Fielding would give him a present. Mr. Fielding asked, "For what?" Donally answered, "You had better comply, or I will take you before a magistrate, and accuse you of an attempt to commit an unnatural crime."
Mr. fielding then gave him half a guinea, which the prisoner said was not sufficient; but Mr. Fielding had no more in his pocket. – On the 20th of January, about four o'clock in the evening, Mr. Fielding met with the prisoner Donally against in Oxford-street, who made use of the same threats as before; he said, Mr. Fielding knew what passed in Soho-square; and unless he would give him more money, he would take him before a magistrate, and accuse him of the same attempt, and that it would go hard against him unless he could prove an alibi*. [* That he was somewhere else, at the time the offense is charged to be committed.[ Mr. Fielding then went to the shop of Mr. Walter, a grocer in Old-Bond-street The prisoner followed him, and staid on the outside of the door. When Mr. Fielding went into the shop, he took a guinea out of his pocket, and gave it to Mr. Walter, and desire he would give it to the man at the door; which Mr. Fielding saw him do, and then the prisoner went away. Mr. Fielding said he was exceedingly alarmed at both the times, and under that alarm gave the money. He was not aware what were the consequences of such a charge, and he apprehended it might cost him his life.
The Jury were desired to consider, first, whether they were satisfied that Mr. Fielding delivered his money through fear, and under an apprehension that his life was in danger? Secondly, if they did not think that Mr. Fielding, apprehended his life was in danger, whether the money was not obtained by means of the prisoner's threats, and against the will of Mr. Fielding.
The Jury fond him ghilty; and said they were satisfied that Mr. Fielding delivered his money through fear, and under an apprehension that his life was in danger.
The question is, whether this amounts in law to a robbery?
On the 29th of April following, the twelve Judges assembled at Lord Chief Justice De Grey's house in Lincoln's Inn Fields, for the purpose of hearing counsel upon this case. It was argued by Mr. Howarth, for the crown, and by Mr. Graham for the prisoner. The Counsel for the crown spoke [p.69] first, and afterwards replied to the arguments by the counsel for the prisoner. The counsel then withdrew, and the Judges debated the point among themselves, and then gave their several opinions, beginnning with the junior Judge.
At the ensuring May session at the Old Bailey, Mr. Justice Willes, delivered the result of the deliberations to the following effect.
The question submitted to the Judges was, "Whether this offence amounts to a robbery?" this question has been argued by counsel both for the prisoner and for the crown. The twelve Judges have investigated the subject, and delivered their sentiments seriatim; and they are unanimously of opinion, that the prisoner at the bar is guilty of the crime of which he has been convicted.
The grounds and principles upon which their determination has been formed, I shall endeavour to state to the Court with equal brefity and perspicuity.
The definition of robery, as it is given by Sir William Staundforde, Sir Mathew Hale, and Mr. Serjeant Hawkins, is "a felonious and violent taking of any money or goods from the person of another, putting him in fear," from which it is evident, that to constitute the crime of robbery, three ingredients are necessary; first, a felonious intention, or animus surandi: secondly, some degree of violence, or putting in fear: thirdly, a taking from the person of another. But as the Judges declared, they did not mean to draw the exact line what should, or what should not be construed a robbery, but that every case must depend on its own particular circumstances, it will be sufficient for me to dhew that the facts proved in the present cae, are within the definition of that offence.
First, the felonious intention or animus surandi
The prisoner, a stranger to Mr. Fielding, stops him in the street during the dusk of the evening, and desires, That he would give him a present; and when he is asked, for what? he replies, You had better comply, or I will take you before a magistrate, and accuse you of an attempt to commit an unnatural crime. This conduct will not bear two constructions. It is clear that he laid in the way for the purpose of obtaining money, against the will of Mr. Fielding; and wherever one man obtains property from the possession of another against his will, the law presumes the act to proceed from a felonious intention, unless the circumstances under which it was done evince the contrary; for the security of priatte property is the care of the law, and the presumptions which it raises to attain that end, cannot be [p.70] repelled by even a specious pretence of right; much lessin the present case, where the baseness of the design is apparrent. Nor will the law suffer its object to be evaded by an ambiguity of expression; for if a man anime suranci says, "give me your money – lend me your money – make me a present of your money," or words of the like import, they are equivalent to the most positive order or demand; and if any thing be obtained in consequence, it will form the first ingredient in the crime of robbery.
The second point considered was, whether the prisoner had used that degree of violence, or inspired that degree of fear, which the law holds necessary to constitute this offence. In the definition above mentioned, these two owrds are included as descriptive of the cause and effect; but the law does not in this case require an actual violence upon the person, or an existing fear in the mind. A man with a cutlass under his arm, or a pistol in his hand, demands and obtains the money of another without touching his person. Here no actual volence is used. Suppose, says Mr. Justice Foster, p. 129. "the true man is knocked down, without any previous warning to awaken his fears, and lieth totally insensible while the thief rifles his pockets; where is the circumstance of existing fear?" and yet in both these cases the crime would be robbery. The putting in fear need not be laid in an indictment for this offence, nor the act of fear, proved upon the trial; but if it be laid to be done violently and against the vill, the law in odium spoliatoris will presume it. It is not even necessary that there should be an actual danger; for a robbery may be committed without using an offensive weapon; as by using a tinder box, or a candle-stick instead of a pistol. A reasonable fear of danger caused by the exercise of a constructive violence, is sufficient; and where such a terror is impressed upon the mind, as does not leave the party a free agent, and in order to get rid of that terror he delivers his money, he may clearly be said to part with it against his will. Nor need the degree of constructive violence be such, as in its effects necessarily imports a probable injury; for when a villain comes and demands money, no one knows how far he will go; and, if the fact be attended with these circumstances of terror and violence, which in common experience are likely to induce a man to part with his property, for the safety of his person, it is all the law requies. Sir Mathew Hale, 532, cites a case from the year-books of Edward III. which carried this doctrine still farther. If thieves come to rob a man, and finding little about him, enforce him by menace of death ro swear on a [p.71] book to fetch them a greater sum, which he doth accordingly, this is taking by robbery: and yet, when he fetches the money, he is removed from all terror but the fear of breaking his oath, and is one of the reach of violence.
But let us see how far the circumstances which attended the factin the present case, will bring it within these rules of law. A young gentleman from school is accosted at night in London streets, by a person he never saw before, whom he must suspect to be a villain. The stranger demands a present. This conduct seems sufficient to satisfy the legal idea of robbery. But the prisoner goes further, and says, "you had better comply, or I will take you before a magistrate." This is a threat of personal violence, for the prosecutor had every thing to fear, in being dragged through the streets as a culprit charged with an unnatural crime. This threat must necessarily and unavoidably impart intimidation. It is equivalent to actual violence, for no violence that can be offered, could excite a greater terror in the mind, or make a man sooner part with his money. The menace is much stronger than that in Harman's case, 1. Hale, 534, and it is implied that if the violence, in that case, had preceded the theft, it would have been robbery. What can operate more powerfully on the mind than a menace to do that, which in its consequences would blast the fairest fame, and ruin for ever the brightest character? It is much more likely that such a menace should occasion fear, than those which Mr. Serjeant Hawkins has mentioned in his pleas o the crown. It is however sufficient to implant a feasonable fear of danger which might operate in constantem virum, as well as in meticulosum, much more on the mind of a boy come from school for the holidays. It was agreed by the prisoner's counsel that this was a fradulent extorting, and not a taking by violence; as in burglary, where the breaking is a necessary ingredient: and yet if a person fraudulently get admission into a house by colour of law, or under pretence of taking lodgings, or of having business, it has frequently been held sufficient proof of a constructive breaking. Several of the judges thought there was a great analogy beween these cases and the present, and therefore, that it ought to be governed by the like principles. There is no actual breaking in those cases of burglary; there is no actual violence in the present case; yet the fraud used in both, amounts to a constructive breaking in one case, and to a constructive violence in the other; but the determination did not turn entirely upon this argument. [p.72]
As to the third ingredient, viz. a taking from the person, the Judges were of opinion, that ingenuity could not raise a doubt upon the point.
But before I conclude, it may be proper to state the several authorities which support this determination of the Judges. The first case was that of James Brown, who was tried and convicted at the Old Bailey, in October, 1763, for a highway robbery on Ralph Hudson; and he was executed. The second case was that of Thomas Jones, tried and convicted before Mr. Baron Hotham, in February session, 1776; and his case was determined to be robberty by all the Judges at Serjeant's-Inn-Hall; and he was executed.
The third case was that of Robert Harrold, in last June session, who was tried, and convicted of the like charge; but he was afterwards reprieved upon some doubt on the evidence. In all these three cases there was this difference from the present case, that some actual violence was proved, as taking and seizing by the arm or collar. But the Judges all held this did not make any material distinction; but that sufficient was proved in this case for the Jury to find the prisoner Donally, guilty of robbery. Leach's Crown Law, 176. A.D. 1779.
In the preceding case, it apepared that the person robbed was in apprehension of personal danger in consequence of the charge of an unnatural attempt: but in the following case, there was no apprehension ofthat nature, but he only parted with his money to guard against the imputation on his character.
The prisoner Daniel Hickman, was tried before Mr. Justice Buller, at the Old Bailey in July session, 1783, for a robbery upon John Miller.
The prosecutor Miller, was servant to Mr. Lewis, table-decker to the chaplains room in St. James's Palace, and had an apartment there, in which he alone slept, which apartment was situated in a court, called "the board of green cloth." The prisoner was a centinel on guard at the palace, and had one night been treated by the prosecutor with some bread and cheese and ale in this room. About a fortnight afterwards, very late in the evening of the day, laid in the indictment, the prosecutor, on going up stairs, heard some body stepping very closely behind him. On turning round, he discovered that it was the prisoner, who said, "It is me." [p.73] The prosecutor replied, "What brought you here at this time of the night?" the prisoner answered, "I am come for satisfaction; you know what passed the other night; you are a Sodomite; and if you do not give me satisfaction, I will go and fetch a sergeant and a file of men, and take you before a Justice; for I have been in the black-hole ever since I was here last, and I do not value my life." The prosecutor asked him what money he must have? the prisoner said, "I must have three or four guineas." The prosecutor then gave him two guineas, which was all he had, and promised to give him another guinea the next morning. The prisoner took the two guineas, saying, "Mind, I don't demand any thing of you." The next morning he came again, and received the other guinea; and in a few days after, upon making an appliction for more money upon the same pretence, he was apprehended. The prosecutor swore, that he was very much alarmed when he gave him te two guineas, and did not very well know what he did; but he parted with his money under an idea of preserving his character from reproach, and not from the fear of personal violence.
The learned Judged stated to the Jury, the usual ingredients which the law required to constitute the crime of robbery; and particularly as applicable to this species of it, the determination of the Judges in the case of the king, v. Donnally; remarking the difference, that in Donnally's case, the prosecutor had sworn, that he delivered his money under an apprehension of personal danger, as well as from the fear of losing his character; but that, in the present case, the prosecutor had sworn he parted with his money for the sake of his character only, and not from any apprehensio of danger to his person.
The Jury found the prisoner guilty, and also that the prosecutor parted with his money against his will, though a fear that his character might receive an injury from the prisoner's accusation.
This case, however, being only the second of the kind, and some doubt having prevailed with respect to Donnally's case, because he was not executed, the judgment was respited, and the case submitted to the consideratio of the twelve Judges, upon the difference before-mentioned between the two cases.
In February sessions, 1784, the prisoner was called to the bar; and Mr. Justice Ashurst, delivered the opinion of the Juges to the following effect. – Some doubts having been entertained, as to the opinion of the twelve Judges in the case of Patrick Donnally, the learned Judge who tried the [p.74] prisoner, thought it proper, that the present case should likewise be referred to their consideration. They have accordingly conferred upon it; and they are of opinion, that it does not materially differ from the cae of Donnally, for that the true definition of robbery is the stealing, or taking from the person, privately, or in the presence of another, property of any amount, wich such a degree of force or terror, as to induce the party unwillingly to part with his property; and whether the terror arises from real or expected violence to the person, or from a sense of injury to the character, the law makes no kind of difference; for to most men the idea of losing their fame and reputation is equally, if not more terrific than the dread of personal injury. The principal ingredient in robbery is a man's being forced to part with his property; and the Judges are unanimously of opinion, that upon the principles of law, and the authority of former decisions, a threat to accuse a man of having committed the greatest of all crimes, is as in the prsent case, a sufficient force to constitute the crime of robbery by putting in fear.
The prisoner received sentence of death, and was executed. Leach's Crown Law, 231. A.D. 1783.
A case of this kind happened so lately as November, 1792.
Philip Davis a Dutchman, was prosecuted for a robbery on Edward Peterson, on the 15th September, and tried before Mr. Justice Heath, at the Old Bailey, the circumstances as they appeared from the evidence of the prosecutor Peterson, were as follow:
On Saturday night, the 15th of September, as the prosecutor was passing into Cheapside from St. Paul's Church-yard, he perceived the prisoner; that afterwardshe perceived him again in Friday-street. The prosecutor had occasion to call at the Saracen's Head to enquire after a gentleman, and not finding him there, he did not stop. When he came out, he perceived no person in the street, till he had got to some distance, when he again saw the prisoner, who came up to him and behaved in an indecent manner. He told the prosecutor he was a man in great distress, and that he must have some money from him. The prisoner threatened the prosecutor that he would accuse him of an unnatural crime, and expose him to the mob, unless he would give him two guineas. He followed the prosecutor from street to street, [p.75] continuing these threats, till they came near the Butler's Head, which is kept by Mr. Baldwin. The prisoner at last told him he would take a guinea and a half. The prosecutor had only half a guinea and some silver in his pocket, and went into the Butler's Head and borrowed a guinea of Mr. Baldwin, whom he knew, adn gave it to the prisoner. Thje prosecutor said he did not give this money to the prisoner from any consideration of distress or charity, but from fear of the accusation which was threatened to be brought against him. When the prisoner got this money, he went awayi apparently satisfied. The prosecutor continued in the coffee room, and in about half an hour after the prisoner returned with another man, and said he wished to speak with the prosecutor. When Mr. Peterson came to the door, the prisoner said he was sorry for what he had done, and the other man spoke a few words in a low tone of voice, which the prosecutor did not understand. He told them they were two villains, and desired them to go about their business.
Apprehensive the prisoner might call upon him again, the prosecutor informed his friends what had happened to him, and they all agreed to dine together the next day at the Butler's Head/ About five o'clock at night, the prisoner called at the butler's Head, and said he wished to speak privately with Mr. Peters (as he called him). He was desired to walk in, which he refused to do, saying he wished to speak with Mr. Peters by hiimself. The prosecutor desired that he would go up stairs and explain in the presence of his friends, his conduct to him last night.
The prisoner was unwilling, and said he wished to speak with the prosecutor privately. He was told he had spoken before with him privately, and that he must speak with him in the presence of his friends. They insisted that he should go up stairs. The moment he entered the room he begged for mercy. He then took a guinea, half a-crown, and a shilling, out of his pocket, and put it on the table. He said that was all that remained of the guinea and a-half which he had received of Mr. Peterson, but that he was willing to leave his coat.
One of the prosecutor's friends ordered him to get upon his knees, and to answer him any questions he might put to him. The prisoner went upon his knees, and on being asked whether there was the least foundation for the accusation which he threatened to bring against the prosecutor? he answered, No; but that he was a man in great distress, and thought that was a mode by which he could obtain money. A Constable was sent for, and he was taken before a magistrate. [p.76]
This evidence of Mr. Peterson's was fully confirmed by three or found respectable witnesses who were present at the time when the prisoner was taken into a room ups tairs.
The learned Judge, in his charge to the Jury, observed, tht a more formidable charge could not be made by one man against another. It was enough to have alarmed a man even of stsronger nerves than the prosecutor. It was no less than accusing a man of an unnatural crime, not in the course of justice, where a man might have the means of defending himself, and where he might shew by witnesses the improbability of the story; but he threatened to charge him in such a manner as greatly to have endangered his life. For if the prisoner had accused the prosecutor to the mob of an unnatural attempt on him, they might have seized him, without listening to any defenc ehe might have had to make. It had been proved by the witnesses, that te prosecutor was under great agitation of mind. If the prosecutor had seized the prisoner, when he threatned him with this accusation, he might have raised the mob upon him, and the consequences might have been dreadful. And therefore the prosecutor could not be accused of having acted with great timidity.
The prisoner said he had been in the country 15 months, and a woman with whom he had lodged for the last four months gave him a character for honesty and sobriety.
The Jury immediatelly found the prisoner GUILTY.
The learned Judge said the public were extremely obliged to the prosecutor for bringing forward this charge, and his lordship hoped that if any other gentleman was attacked in a similar manner, that he would display the same degree of fortitude in the same public manner. Sessions Old Bailey, Nov. 1791. [p.77]
