Homosexuality in Nineteenth-Century England: A Sourcebook compiled by Rictor Norton

Legal Precedents in Blackmail Cases, 1824

NOTE:The following is a review (as of 1824) of precedent legal decisions concerning the crime of extortion by threatening to swear sodomy against the victim, whereby the getting of money by putting in fear of being accused of such a crime was sufficient to qualify it as a "robbery", and hence a felony punishable by death. See also an earlier review summarizing the position as of 1792, which contains a fuller account of some of the cases mentioned in the 1824 review.

The cases of robbery in which the property has been obtained, by means of a fear being excited of injury to the character of the party robbed, appear to be all of one description. Indeed it has been said, that the terror which leads a party to apprehend an injury to his character, has never been deemed sufficient to support an indictment for robbery except in the particular instance of its being excited by means of insinuations against, or threats to destroy the character of the party pillaged, by accusing him of sodomitical practices. In the case, in which this doctrine is laid down, it appear3ed that the prisoners, assisted by other persons, got the prosecutrix into a house, under pretence of an auction being carried o there, forced her to bid for a lot of articles which was immediately knocked down to her, and then, upon her not producing the money to pay for it, threatened that she should be taken to Bow-street, and from thence to Newgate, and e imprisoned till she could raise the money; that, after these threats had been used, a pretended constable was introduced, who said to the prosecutrix, "Unless you give me a shilling, you must go with me," upon which she was induced to give the pretended constable a shilling; and that the prosecutrix parted with the shilling, being in bodily fear of going to prison, as a means of obtaining her liberty, and to avoid being carried to Bow-street and to Newgate, and not out of fear of apprehension of any other personal force or violence. The judges, after argument, and a minute discussion of the circumstances of the case, were of opinion that they were not sufficient to constitute the crime of robbery. They thought that thee treat used of taking the prosecutrix to Bow-street, and from thence to Newgate, was only a threat to put her into the hands of the law, which she might have known would have taken her under its protection and set her free, as she had done no wrong; that an innocent person need not in such a situation be apprehensive of danger; and, therefore, that the terror arising from such a source was not sufficient to induce an individual to part with property, so as to amount to a robbery. And they said, it was a case of simple duress for which the party injured might have a civil remedy by action, which could not be, if the fact amounted to felony.

But the fear of injury to character, which may be excited by accusing a person of sodomitical practices, has been holden to come under a different consideration. The imputation of being addicted to so odious and detestable a crime, would be sufficient to deprive the injured person of all the comforts and advantages of society, and would inflict a punishment more terrible than death, both in apprehension and reality. The law, therefore, considers the fear of losing character by such an imputation, as equal to the fear of sustaining personal injury, or even of losing life itself. [By Ashhurst J. in the case of Knewland and Wood, 2 Leach 731.]

Jones's Case

Case of robbery where the prosecutor stated, that at the time he parted with his money he understood the threatened charge to be an imputation of sodomy; that he was so alarmed by the idea, that he had neither courage nor strength to call out for assistance'; and that the violence with which he had been detained in the street by the prisoner, put him in fear for the safety of his person.

The prison was indicted for a highway robbery, and the following facts appeared upon the evidence. The prosecutor and the prisoner, not being at the time at all acquainted, pressed, together with a great crowd, into the upper gallery of the play-house at Covent-garden, after which the prisoner took his seat by the side of the prosecutor. During the play the prisoner asked the prosecutor whether a journeyman who had spoken to him was of his company; to which the prosecutor replied in the negative; and no other conversation passed between them during the play. When the play was over the prisoner followed the prosecutor out of the house, and as they were crossing Bow-street proposed to him to have something to drink, to which the prosecutor assented, and they went together to an adjoining public-house. In a few minutes, and after they had drunk some porter, the prisoner turned towards the prosecutor, and asked him what he meant by the liberty he had taken with his person in the play-house. The prosecutor said, that he knew of no liberties being taken; when the prisoner replied, "Damn you, Sir, but you did; and there were several reputable merchants in the house who will take their oaths of it." The prosecutor, much alarmed, immediately rose from his seat, paid for the porter, and went out of the house, saying to the prisoner, that he did not know what he meant. The prisoner followed him into the street, where there was a considerable crowd, and halooed out, "Damn you, Sir, stop! for if you offer to run, I will raise a mob about you;" and then seizing him violently by the arm, exclaimed, "Damn you, Sir! this is not to be borne! you have offered an indignity to me, and nothing can satisfy it!" The prosecutor, terrified by these expressions and the manner in which they were uttered, replied, "For God's sake what do you want, what would you have me do?" to which the prisoner said, in a lower tone of voice, "A present – a present – you must make me a present." The prosecutor asked him, "A present, of what?" upon which the prisoner said, "Come, come, what money have you? How much can you give me now?" The prosecutor said, he had but little money, but that the prisoner should have what he had about him; and accordingly gave him three guineas, and some silver. The prisoner said, it was not enough, and demanded more. During the whole of this conversation the prisoner held the prosecutor fast b the arm, and thereby defeated several efforts which he made to get away; and at length, when he suffered the prosecutor to walk on, still accompanied him, keeping tight hold of his arm, down another street. At length the prisoner loosed his arm, but did not leave him; and as he refused to tell his name, or where he lived, followed him to the door of his lodging. Early the next morning the prisoner called at the lodgings, and frightened the prosecutor out of a further sum of forty pounds. The prosecutor soon afterwards communicated what had happened to a friend, and by his advice determined to apprehend the prisoner when he could meet with him; but he was not apprehended till some months after, when he again called upon the prosecutor, and again threatened to impeach his character, unless he would give him more money.

In this case the prosecutor swore, that at the time he parted with his money he understood the threatened charge to be the imputation of sodomy; that he was so alarmed by the idea, that he had neither courage nor strength to call out for assistance; and that the violence with which the prisoner had detained him in the street, had put him in fear for the safety of his person. The case was left to the jury, with a direction to consider whether the prosecutor parted with his money under the impression of fear; and the jury found the prisoner guilty; declaring, that they thought that such an accusation would strike a man with as much or more terror that if he had a pistol at his head. Judgment being respited in order that the opinion of the Judges might be taken, the point was afterwards considered by them; and they were of opinion, that the conviction for a highway robbery was proper; that, in order to constitute robbery, there was no occasion to use weapons, or real violence; and that taking money from a man in such a situation as rendered him not a free man (as if a person so robbed were in fear of a conspiracy against his life or character) was such a putting in fear as would make the taking of his money under that terror a robbery. [Jones's alias Evans's case, 1776, 1 Leach 139. 2 East. P. C. c. 16. s. 130, p. 714. Nine of the Judges only were present at the consideration of the case. Do Grey, C. J. and Ashhurst, J. being absent, and there being one vacancy.] And a case which had been previously decided upon the same point, was mentioned with approbation [Brown's case, O. B. 1763, cor. Eyre, B. when Recorder, 2 East. P. C. c. 16. s. 130. p. 715, where Harrold's case, alias Hutton's, O. B. 1778, is mentioned, as one in which the prisoner was convicted for a similar robbery.]

In the latter case, which was so mentioned with approbation by the Judges, it appears that there was some actual violence used in the assault, and a laying of hands on the party; and in the former case there was, as had been seen, a continual force and violence, and a threat to deliver the party up to the mob as a sodomite, besides the fact of laying hold of the arm; circumstances which have been urged as giving a peculiar character to those cases, and as making them distinguishable from one in which no such circumstances should exist. [See the judgments of Perryn, B. and Blackstone, J. in Donally's case, 2 East. p. C. c. 16. s. 130. p. 717,l 718, 721. and the judgment of the court, as delivered by Willes, j. in Donally's case, 1 Leach 199.] But the circumstances of actual violence appear to have been holden not to make any material distinction in a case in which they did not occur, and where the Judges, after great discussion, held the offence to amount to robbery.

Donally's Case

Obtaining money by saying, "You had better comply, or I will take you before a magistrate and accuse you of an attempt to commit an unnatural crime," holden to be robbery.

On the 18th of January, 1779, the prosecutor, a young gentleman, was passing through Soho-square, between the hours of six and seven o'clock in the evening, when he met the prisoner, whom he had never seen before. The prisoner accosted him, and desired that he would give him a present. The prosecutor said, "For what?" The prisoner answered, "You had better comply, or I will take you before a magistrate, and accuse you of an attempt to commit an unnatural crime." The prosecutor then gave him half a guinea, which the prisoner said was not sufficient; but the prosecutor had no more in his pocket. On the 20th of January, about four o'clock in the evening, the prosecutor met the prisoner again in Oxford-street, who made use of the same threats as before; telling the prosecutor that he knew what had passed in Soho-square, and that unless he would give him more money, he would take him before a magistrate and accuse him of the same attempt; adding, that it would go hard against him, unless he could prove an alibi. The prosecutor then went to the shop of a grocer in Old Bond-street, the prisoner following him, and staying on the outside the door; and the prosecutor, being in the shop, took a guinea out of his pocket, gave it to the grocer, and desired he would give it to the man at the door; which the grocer did, and the prisoner then went away. The prosecutor stated, that he was exceedingly alarmed at both the times, and under that alarm gave the money; that he was not aware what were the consequences of such a charge, but apprehended that it might cost him his life.

The case was left to the jury, with directions to consider, first, whether they were satisfied that the prosecutor delivered his money through fear, and under an apprehension that his life was in danger; and, secondly, if they should not think that the prosecutor apprehended that his life was in danger, then, whether the money was not obtained by means of the prisoner's threats, and against the will of the prosecutor; for if it were, even in that case, though he were not in fear of his life, the crime would amount to robbery. The jury found the prisoner guilty; and said that they were satisfied that the prosecutor delivered his money through fear, and under an apprehension that his life was in danger. But, doubts being entertained respecting the conviction, the judgment was respited, and the question submitted to the opinion of the Judges. Some difference of opinion prevailing amongst them, they directed the case to be argued; and after argument, and very full consideration, they at length all agreed that it amounted to robbery.

The opinions of the Judges were delivered seriatim, and contain some learned and interesting discussions relating to the nature of the fear by which a party may be induced to part with his property, in cases where no actual violence is employed to obtain it: and Willes, J. afte4rwards delivered the result of their deliberations. He said, that the facts of the case shewed that there was the necessary felonious intention in the prisoner to rob the prosecutor; and that it was impossible to raise a doubt, that there was a sufficient taking from the prosecutor's person. With respect to the putting in fear, he stated, that it is not necessary to lay a putting in fear in the indictment; and that the circumstance of actual fear need not be proved upon the trial; for if the fact be laid to be done violently and against the will, the law in odium spoliatoris will presume fear. That there need not be actual violence, a reasonable fear of danger caused by constructive violence being sufficient; and that where such terror is impressed upon the mind as does not leave the party a free agent, and he delivers his money in order to get rid of that terror, he may clearly be said to part with it against his will, so as to constitute robbery. That no actual danger is necessary; as a man may commit a robbery without using any offensive weapon; as by using a tinder-box or a candlestick inst4ead of a pistol. And that when a villain comes and demands money, no one knows how far he will proceed. The learned Judge then referred to the facts and circumstances of the case, as sufficient to bring it within these rules of law. He stated, that the situation of the prosecutor was that of a young gentleman accosted at night, in the streets of London, by a person he never saw before, and whom he must have suspected to be a villain; and that this person demanded a present. Even that seemed sufficient to satisfy the legal idea of robbery. But the prisoner went further, and used the words, "You had better comply, or I will take you before a magistrate." This then was a threat of person violence; for the prosecutor had every thing to fear in being dragged through the streets as a culprit charged with an unnatural crime. It was a threat which must necessarily and unavoidably produce intimidation, and occasion a reasonable fear, which might operate in constantem virum, as well as in meticulosum virum. He then observed, upon the argument argued by the counsel for the prisoner, that this was a fraudulent taking, and not a taking by violence; and said, that in many cases fraud would supply the place of violence; as in burglary; where thought it was necessary to charge a breaking in the indictment, yet there might be a constructive breaking by a person fraudulently getting admission into a house by colour of law, or under pretence of taking lodgings, or of having business. But he said, that the Judges did not determine the case entirely on this ground, but were of opinion that there was proof of a constructive violence, which they thought was sufficient: and that they were all of opinion, that enough was proved in this case for the jury to find the prisoner guilty of a robbery.

This doctrine appears to have been acted upon in subsequent cases; in one of which the party delivered his money solely for fear of losing his character. [Staple's case, O. B. 1779, Hickman's case, O. B. 1783, considered of by the Judges in 1783, 2. East. P. C. c. 16. s. 130. p. 723. Staple was executed, but Hickman was reprieved on condition of Transportation. It appears from Hickman's case (1 Leave 279.), that Donally was not executed, and that some doubts had been entertained as to the opinion of the twelve Judges in that case.]

Hickman's Case

Obtaining money by threatening to take another before a justice, on a charge of an unnatural offence, holden to be robbery though the prosecutor stated, that he parted with his money under an idea of preserving his character, and not from fear of personal violence.

Daniel Hickman was indicted for robbing one John Miller of two guineas. It appeared upon the evidence, that the prosecutor had some employment in the palace at St. James's, and an apartment there in which he was accustomed to sleep, and that the prisoner was occasionally a sentinel on guard at the palace. One night the prosecutor treated the prisoner with some bread and cheese and ale, in his room. About a fortnight afterwards, very late in the evening, the prosecutor was going up stairs to his apartment, when he heard somebody close behind him, and, o turning round, saw that it was the prisoner, who said. "It is me." The prosecutor asked him, what brought him there at that time of night: upon which 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 then asked him what money he must have; when the prisoner said, "I must have three or four guineas." The prosecutor gave him two guineas, which was all he had, and promised to give him another guinea the next morning: and the prisoner took the two guineas, saying, "Mind, I don't demand any thing of you." The next morning he came and received the other guinea; and, in a few days after, upon making an application for more money upon the same pretence, he was apprehended. The prosecutor swore, that he was very much alarmed when he gave the prisoner the two guineas, and did not very well know what he did; but that he parted with his money under an idea of preserving his character from reproach, and not from the fear of personal violence.

The learned judge, who tried the prisoner, in leaving the case to the jury, remarked, upon the point in which it might be supposed to differ from that of Donally, that in Donally'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 that he parted with his money for the sake of his character only, and not from any apprehension of danger to his person. The jury found the prisoner guilty; and that the prosecutor parted with his money, against his will, through a fear that his character might receive a injury from the prisoner's accusation: but as some doubt was entertained whether the case was within the principle upon which Donally's proceeded, it was submitted to the consideration of the Judges; and their opinion was, afterwards, delivered by #Ashhurst, J. to the following effect: "Some doubts having been entertained as to the opinion of the twelve Judges, in the case of Patrick Donally, the learned Judge, who tried the prisoner, thought it proper that thee 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 case of Donally: for that the true definition of robbery is the stealing, or taking from the person, or in the presence of another, property of any amount, with 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 that 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 present case, a sufficient force to constitute the crime of robbery, by putting in fear." [Hickman's case, 1 Leach 278. 2 East. P. C. c. 16. s. 130. p. 723. The prisoner was not executed.]

This case seems to have gone to the full extent of the doctrine upon which it proceeded, and must be considered as in some measure qualified and restrained by subsequent decisions; in one of which it was holden that as the prosecutor had parted with his property for the purpose of convicting the prisoners, and after the apprehension of injury to his character, from the foul charge, had ceased, it was not robbery; [Reane's case, 1794. 2 Leach 616. 2 East. P. C. c. 16. s. 132. p. 734.] and in the other, it was holden by a majority of the Judges that in order to constitute robbery, in a case of this kind, the property must be taken upon an immediate apprehension of present danger, upon the charge being made, and not after the parties have separated, and there has been time to deliberate and procure assistance, and after a friend has actually been consulted respecting the transaction. [Jackson and Shipley (case of) 1 East. P. C. Addenda xxi.]

Reane's Case

The prosecutor having parted with his property for the purpose of convicting the prisoners, and after the apprehension of injury to his character had ceased, it was holden not to be robbery.

The prisoner, James Reane, was indicted for a highway robbery, and taken nineteen guineas and a shilling; and David Watkins was charged, in the same indictment, as an accessory before the fact. The evidence of the prosecutor disclosed the following circumstances: On the 12th of May, 1794, the prosecutor met the prisoner, Reane, in the street. He was an entire stranger to the prosecutor: but he asked for money, saying that he was in great distress; and, upon the prosecutor's refusing to give him any, went away muttering expressions of anger and discontent. On the next day he again met the prosecutor in the street, and repeated his request for money; and, on being refused, said "You shall be the worse for it." On Friday, the 23d of May, he again accosted the prosecutor in the street, and told him that he had taken indecent liberties with him in the park, and that it had been seen and could be proved by a third person. The prosecutor, with a violent exclamation, asked him what he meant; to which he made no reply, but walked away. On the next day the prosecutor received a letter from him containing similar charges, and mentioning his place of residence: in consequence of which the prosecutor, having consulted with a friend, was induced to write to him, and appoint to meet him in the street to hear what he had to say. He accordingly met him there, when Reane said that if the prosecutor did not give him money he could prove his having committed indecencies with him in the park, as a third person had seen it; upon which the other prisoner, Watkins, joined them, saying, "Yes, I saw you." The prosecutor exclaimed, that it was a horrid abominable falsity: upon which Watkins said, "You have great interest with government; I shall be glad of a place as a clerk, either in the custom or excise." The prosecutor said that he would apply for one, upon which Watkins went away. Reane then said, "You have given that man a certainty; I will have a certainty also;" upon which the prosecutor told him that he should. On the following morning Reane met the prosecutor by appointment, and told him that he had considered the matter, that he must have twenty pounds in cash, and a bond for fifty pounds a year; upon which the prosecutor, in pursuance of a plan which he had previously concerted with his friend, told him that he could not give them to him then, but that if he would wait a few days he would bring him the money and the bond. The prosecutor, on his next interview with Reane, offered him the twenty pounds; but he refused to take the money without the bond, upon which the prosecutor fetched the bond, and gave it, together with nineteen guineas and a shilling, to Reane, who carried both the bond and the money away with him, saying that he would not give the prosecutor any further trouble. It was objected on behalf of the prisoners that this proof was defective; as in order to constitute robbery there must be a violence, or fear of danger, to the person or character; and that such violence, or fear, must exist at the time when the property is parted with: but the case was left to the jury, who found the prisoner guilty; upon which judgment was respited, in order that the opinion of the twelve Judges might be taken. At the first conference the Judges (Buller, J. being absent) were inclined to think that this was not robbery, as there was neither violence nor fear at the time the prosecutor parted with his property. Eyre, C. J. observed, "that it would be gong a step further than any of the cases to hold this to be robbery. That the principle he had acted upon, in such cases, was to leave the question to the jury, whether the defendant had, by certain circumstances, impressed such a terror on the prosecutor as to render him incapable of resisting the demand. Therefore, when the prosecutor swore that he was under no apprehension at the time, but gave his money only to convict the prisoners, he negatived the robbery. That this was different from Norden's case, where there was actual violence: for here there was neither actual nor constructive violence. A man might be said to take by violence who deprived the other of the power of resistance, by whatever means he did it. And he saw no sensible distinction between a personal violence to the party himself, and the case put by one of the Judges of a man holding another's child over a river, and threatening to throw it in unless he gave him money." The Judges thought the matter deserving of further consideration; but they ultimately adhered to the opinion to which they had at first inclined; and held (Buller, J. being absent) that the conviction was wrong; as there was no violence either actual or constructive. [Reane's case. 2 East. P. C. c. 16. s. 132. p. 734. 2 Leach 616.]

Case of Jackson, Shipley, and Morris

Taking money from the prosecutor, upon a threat to accuse him of an unnatural offence, is not robbery, unless the money were taken immediately upon the threat made, and not after the parties had separated, and there had been time for the prosecutor to deliberate and procure assistance: and more especially not, where the prosecutor consulted a friend, and such friend was present when the money was paid.

The prisoners John Jackson, William Shipley, and John Morris, were indicted for robbing one W. S. in the dwelling-house of one S. Rowe. The evidence of the prosecutor was, that while he was threshing in his father's barn, at a place called Gilling, the prisoners Shipley and Morris came to him and asked if W. S. lived there, to which he answered that he was the man. They then asked him, if he remembered lying with two soldiers some time before; and upon his saying that he did, they said that one of the soldiers named Jackson, had said that he had abused him; and that Jackson was then come over to Carlton, (an adjoining place) and would certainly follow the law, unless he would come and make it up with him: but, that if he went there and made it up with Jackson, there would be no more of it. The prosecutor answered, that he knew nothing of the sort, but that he would go and hear what Jackson had to say. Shipley and Morris then went away; and the prosecutor followed them to a public-house, kept by S. Rowe, at Carlton, where he also found the prisoner Jackson, and another soldier. Some conservation took place in a private room, when Jackson preferred the same charge against the prosecutor of his having unnaturally abused him; which was positively denied by the prosecutor. At last Jackson told the prosecutor, that if he would pay him the expences, there should be no more of it; and, upon the prosecutor saying that he was willing to pay any thing in reason, Morris and Shipley made out a sort of account, by setting down in writing the following articles as mentioned by Jackson, "Doctor, 1l. 11s. 6d. – For abusing me, 1l. 8s. – Morris, 10s. – Shipley, 5s. – The other soldier, 2s. 6d." The total was 3l. 17s. – but they asked to have four guineas. The prosecutor said, he had no such money: but, upon their insisting upon having it, he said, he would try to get it from his parents; and asked one of them to accompany him, which Shipley accordingly did. The prosecutor swore that he was much frightened and hurried, and did not know what best to do. He went however, accompanied by Shipley, to his mother's; and, under the pretence of a soldier having been hurt, obtained from her four guineas. On their return to the public-house, the prosecutor stopped at the house of one Shelton, and prevailed upon Shelton to go along with him. Shelton enquired what was the matter; and, upon being informed by Shipley, declared his disbelief of the charge, and said that if it were his own case, he would not pay the money; upon which Shipley said, that if the prosecutor did not pay the money, it would cost him 50l. or 100l., or perhaps his neck; that he was himself a constable, and would go for a warrant the next morning. This language frightened the prosecutor very much. When the prosecutor, Shipley, and Shelton got to the public-house, Jackson, Morris, and the other soldier, were in the same room in which the prosecutor had left them. The prosecutor sat down; and, after a few minutes, laid the four guineas upon the table, and asked who would take it; upon which they all said "Jackson:" but Shipley took it up; and amongst them they returned back six shillings to the prosecutor, half-a-crown of which was said to be for his friend's expences, (meaning Shelton). The prosecutor asked for a receipt; but Morris said his friend would do as well: and Shelton made some enquiries as to the doctor to whom Jackson had applied, but received only evasive answers. The prosecutor swore to the falsehood of the charge, but said he was scared at it, and that was the reason why he parted with his money. On his cross-examination it appeared, that Jackson had first made the charge on the morning after the night they had lain together, but did not repeat it then; and that they continued eating and drinking for several hours after: that afte4rwards, he had heard of Jackson's having repeated the charge in several companies, which had caused him much agitation. Shelton's evidence went to confirm the prosecutor in his account as to the part of the transaction which happened in his presence; and he also swore that as they were gong into the public-house, he called the prosecutor back, and advised him not to pay the money. And he added, that the prosecutor was quite scared out of his wits.

These facts being left to the jury, they found the prisoners guilty, and sentence was passed upon them; but execution was respited on a doubt conceived by Graham. B., by whom they were tried, whether the case did not go somewhat beyond those which had been previously decided; and principally, because the prosecutor had a friend present during the transaction. The case being submitted to the consideration of the Judges, a majority of them were of opinion that it did not amount to robbery, though the money were taken in the presence of the prosecutor, and the fear of losing his character were upon him. Most of the majority thought that, in order to constitute robbery, the money must be parted with from an immediate apprehension of present danger upon the charge being made; and not, as in this case, where the parties had separated, and the prosecutor had time to deliberate upon it, and apply for assistance; and had applied to a friend, by whom he was advised not to pay it, and who was actually present at the very time when it was paid; which circumstances they thought had the appearance rather of a composition of a prosecution than of a robbery, and seemed like a calculation whether it were better to lose his money, or risk his character. And one of the Judges, who agreed that it was not robbery, thought that there was not such a continuing fear as could operate in constantem virum, from the time when the money was demanded, until it was paid; as in the interval the prosecutor had taken advice, and might have procured assistance. Those Judges, who thought the case did amount to a robbery, considered the question as concluded by the finding of the jury, that the prosecutor had parted with his money through fear continuing at the time, which fell within the definition of robbery which had been long adopted and acted upon; and they said that it would be difficult to draw any other line. They thought also that this sort of fear so far differed from cases of mere bodily fear, that it was not likely to be dispelled, as in those cases, by having the opportunity of applying to magistrates or others for assistance; the money being given to prevent the public disclosure of the charge. [Jackson, Shipley, and Morris (case of) cor. Graham, B. Nottingham Spr. Ass. 1802, and East. T. 1802. 1 East. P. C. Addenda xxi.]

Mr. East, who cites this case, from MS. Jud. has suggested a question whether the decision does not in a great measure over-rule the case of Hickman, which is mentioned in the preceding pages. But it should be observed, that the circumstances of these cases materially differ; and particularly that in Hickman's case the two guineas were given immediately upon the charge being made, and that there was no previous application to any friend or other person, from whom advice or assistance might have been procured.

Having thus treated of the facts and circumstances necessary to constitute the crime of robbery, this chapter may be concluded by shortly adverting to some points which have been decided respecting persons aiding and abetting in this offence, and also respecting the indictment. . . .

SOURCE: Wm. Oldnall Russell, A Treatise on Crimes and Misdemeanors, 2 vols, First American Edition, Boston, 1824. Volume II, pp. 1008-1024.

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