for the abuse of that free will which God has given to man, it is highly ast and equitable that a man should be excused for those acts which are done through unavoidable force and compulsion. *1. Of this nature, in the first place, is the obligation of civil subjection, [*28 whereby the inferior is constrained by the superior to act contrary to what his own reason and inclination would suggest; as when a legislator establishes iniquity by a law and commands the subject to do an act contrary to religion or sound morality. How far this excuse will be admitted in foro conscientiæ, or whether the inferior in this case is not bound to obey the divine rather than the human law, it is not my business to decide; though the question, I believe, among the casuists, will hardly bear a doubt. But, however that may be, obedience to the laws in being is undoubtedly a sufficient extenuation of civil guilt before the municipal tribunal. The sheriff who burned Latimer and Ridley, in the bigoted days of queen Mary, was not liable to punishment from Elizabeth for executing so horrid an office; being justified by the commands of that magistracy, which endeavoured to restore superstition under the holy auspices of its merciless sister, persecution. As to persons in private relations: the principal case, where constraint of a superior is allowed as an excuse for criminal misconduct, is with regard to the matrimonial subjection of the wife to her husband; for neither a son nor a servant are excused for the commission of any crime, whether capital or other. wise, by the command or coercion of the parent or master; (b) though in some cases the command or authority of the husband, either expressed or implied, will privilege the wife from punishment even for capital offences. And therefore if a woman commit theft, burglary, or other civil offences against the laws of society by the coercion of her husband; or even in his company, which the law construes a coercion; she is not guilty of any crime; being considered as acting by compulsion and not of her own will.(c) Which doctrine is at least a thousand years old in this kingdom, being to be found among the laws of king *Ina, the West Saxon. (d) And it appears that among the northern nations on the continent this privilege extended to any woman transgressing in concert with a man, and to any servant that committed a joint offence with a freeman; the male or freeman only was punished, the female or slave dismissed: "procul dubio quod alterum libertas, alterum necessitas impelleret."(e) But (besides that in our law, which is a stranger to slavery, no impunity is given to servants, who are as much free agents as their masters) even with regard to wives, this rule admits of an exception in crimes that are mala in se, and prohibited by the law of nature, as murder and the like: not only because these are of a deeper dye, but also, since in a state of nature no one is in subjection (b) 1 Hawk. P. C. 3. () 1 Hal. P. C. 45. (d) Cap. 57. [*29 jus ignorare permissum est: quod et in fœminis in quibusdam causis propter sexus infirmitatem dicitur, et ideo, sicubi non est delictum, sed juris ignorantia, non læduntur." D. 22, 6, 9. And see Pothier, Traité de l'Action, Condictio indebiti, part 2, sect. 2, art. 3. In Vernon's case (Mich. 20 Hen. VII. fol. 2, pl. 4) the defendants justified taking away the plaintiff's wife, on the ground that they were accompanying her to Westminster, to sue for a divorce in ease of her conscience. It was objected to the plea that the defendants ought to have taken her to the ordinary or the metropolitan; but the plea was held good, "for perhaps they had not knowledge of the law as to where the divorce should be sued." And see Manser's case, 2 Co. Rep. 4. Doctor and Student, book 2, cap. 46, 47. Eichhorn vs. Le Maitre, 2 Wils 368.-CHITTY. The husband, however, must be present when the offence is committed, or the presumption of coercion by him does not arise. Rex vs. Morris, R. & R. C. C. 270. The wife is not treated as an accessory to a felony for receiving her husband who has been guilty of it, though, on the contrary, it appears the husband would be for receiving his wife. H. P. C. vol. 1, s. 10. 1 Hale, 44. And if an offence be committed by the wife alone, without the husband's concurrence, she may be punished by way of indictment without him. Id.; and see Moor, 813.-CHITTY. The law seems to protect the wife in all felonies committed by her in company with her husband, except murder and manslaughter. Hal. P. C. 47.-CHRISTIAN. to another, it would be unreasonable to screen an offender from the punishment due to natural crimes by the refinements and subordinations of civil society. In treason, also, (the highest crime which a member of society can as such be guilty of,) no plea of coverture shall excuse the wife; no presumption of the husband's coercion shall extenuate her guilt:(f) as well because of the odious ness and dangerous consequences of the crime itself, as because the husband, having broken through the most sacred tie of social community by rebellion against the state, has no right to that obedience from a wife, which he himself as a subject has forgotten to pay. In inferior misdemeanours also we may remark another exception: that a wife may be indicted, and set in the pillory with her husband, for keeping a brothel;10 for this is an offence touching the domestic economy or government of the house, in which the wife has a principal share; and is also such an offence as the law presumes to be generally conducted by the intrigues of the female sex. (g)" And in all cases where the wife offends alone, without the company or coercion of her husband, she is responsible for her offence as much as any feme-sole. *30] *2. Another species of compulsion or necessity is what our law calls duress per minas; (h) or threats and menaces which induce a fear of death or other bodily harm, and which take away for that reason the guilt of many crimes and misdemeanours; at least, before the human tribunal. But then that fear which compels a man to do an unwarrantable action ought to be just and well grounded, such "qui cadere possit in virum constantem, non timidum, et meticulosum," as Bracton expresses it(i) in the words of the civil law.(k) Therefore, in time of war or rebellion, a man may be justified in doing many treasonable acts by compulsion of the enemy or rebels which would admit of no excuse in time of peace.(1)12 This, however, seems only, or at least principally, to hold as to positive crimes, so created by the laws of society, and which therefore society may excuse; but not as to natural offences so declared by the law of God, wherein human magistrates are only the executioners of divine punishment. And therefore, though a man be violently assaulted, and hath no other possible means of escaping death but by killing an innocent person, this fear and force shall not acquit him of murder; for he ought rather to die himself than escape by the murder of an innocent.(m) But, in such a case, he is permitted to kill the assailant; for there the law of nature, and self-defence, its primary canon, have made him his own protector. 3. There is a third species of necessity, which may be distinguished from the actual compulsion of external force or fear; being the result of reason and reflection which act upon and constrain a man's will, and oblige him to do an action which, without such obligation, would be criminal. And that is, when a man has his choice of two evils set before him, and being under a necessity of 10 The punishment of the pillory was abolished, by 56 Geo. III. c. 138.-STEWART. "In all misdemeanours it appears that the wife may be found guilty with the husband. It is said the reason why she was excused in burglary, larceny, &c. was because she could not tell what property the husband might claim in the goods. 10 Mod. 63 and 335. But the better reason seems to be that by the ancient law the husband had the benefit of the clergy, if he could read, but in no case could women have that benefit. It would therefore have been an odious proceeding to have executed the wife and to have dismissed the husband with a slight punishment. To avoid this, it was thought better that in such cases she should be altogether acquitted; but this reason did not apply to misdemeanours.-CHRISTIAN. 12 The fear of having houses burned, or goods spoiled, is no excuse in the eye of the law for joining and marching with rebels. The only force that doth excuse is a force upon the person and present fear of death; and this force and fear must continue all the time the party remains with the rebels. It is incumbent upon men who make force their defence to show an actual force, and that they joined pro timore mortis, et recesserunt quam cito potuerunt. Fost. 14, 216 CHR TIAN [*31 choosing one, he chooses the least pernicious of the two. Here the will cannot be said freely to exert itself, being rather passive than active; or, if active, it is rather in rejecting the greater evil than in choosing the less. Of this sort is that necessity where a man by the commandment of the law is bound to arrest another for any capital offence, or to disperse a riot, and resistance is made to his authority: it is here justifiable, and even necessary, to beat, to wound, or perhaps to kill the offenders, rather than permit the murderer to escape, or the riot to continue. For the preservation of the peace of the king. dom, and the apprehending of notorious malefactors, are of the utmost consequence to the public; and therefore excuse the felony which the killing would otherwise amount to.(n) 4. There is yet another case of necessity, which has occasioned great speculation among the writers upon general law; viz., whether a man in extreme want of food or clothing may justify stealing either, to relieve his present necessities? And this both Grotius(o) and Puffendorf,(p) together with many other of the foreign jurists, hold in the affirmative; maintaining, by many ingenious, humane, and plausible reasons, that in such cases the community of goods, by a kind of tacit confession of society, is revived. And some even of our own lawyers have held the same, (q) though it seems to be an unwarranted doctrine, borrowed from the notions of some civilians; at least it is now antiquated, the law of England admitting no such excuse at present. (r) And this its doctrine is agreeable not only to the sentiments of many of the wisest antients, particularly Cicero,(s) who holds that "suum cuique incommodum ferendum est, potius quam de alterius commodis detrahendum," but also to the Jewish law, as certified by king Solomon himself:(t) "If a thief steal to satisfy his soul when he is hungry, he shall restore *sevenfold, and shall give all the substance of his house" which was the ordinary punishment for theft in that kingdom. [*32 And this is founded upon the highest reason: for men's properties would be under a strange insecurity if liable to be invaded according to the wants of others, of which wants no man can possibly be an adequate judge but the party himself who pleads them. In this country especially there would be a peculiar impropriety in admitting so dubious an excuse; for by our laws such sufficient provision is made for the poor by the power of the civil magistrate, that it is impossible that the most needy stranger should ever be reduced to the necessity of thieving to support nature. This case of a stranger is, by the way, the strongest instance put by baron Puffendorf, and whereon he builds his principal arguments: which, however they may hold upon the continent, where the parsimonious industry of the natives orders every one to work or starve, yet must lose all their weight and efficacy in England, where charity is reduced to a system and interwoven in our very constitution. Therefore our laws ought by no means to be taxed with being unmerciful for denying this privilege to the necessitous; especially when we consider that the king, on the representation of his ministers of justice, hath a power to soften the law and to extend mercy in cases of peculiar hardship. An advantage which is wanting in many states, particularly those which are democratical; and these have, in its stead, introduced and adopted in the body of the law itself a multitude of circumstances tending to alleviate its rigour. But the founders of our constitution thought it better to vest in the crown the power of pardoning particular objects of compassion than to countenance and establish theft by one general undistinguishing law. VII. To these several cases, in which the incapacity of committing crimes arises from a deficiency of the will, we may add one more, in which the law supposes an incapacity of doing wrong, from the excellence and perfection of the person; which extend as well to the will as to the other qualities of his mind. I mean the case of the king; who, by virtue of his royal prerogative, is not under the coercive power of the law;(u) which will not suppose [*33 him capable of committing a folly, much less a crime. We are therefore, out of reverence and decency, to forbear any idle inquiries of what would be the consequence if the king were to act thus and thus: since the law deems so highly of his wisdom and virtue as not even to presume it possible for him to do any thing inconsistent with his station and dignity; and therefore has made no provision to remedy such a grievance. But of this sufficient was said in a former volume,(v) to which I must refer the reader. *34] CHAPTER III. OF PRINCIPALS AND ACCESSORIES. *IT having been shown in the preceding chapter what persons are, or are not, upon account of their situation and circumstances, capable of committing crimes, we are next to make a few remarks on the different degrees of guilt among persons that are capable of offending, viz.: as principal, and as accessory. I. A man may be principal in an offence in two degrees. A principal in the first degree is he that is the actor or absolute perpetrator of the crime; and in the second degree he is who is present, aiding and abetting the fact to be done. (a) Which presence need not always be an actual immediate standing by, within sight or hearing of the fact; but there may be also a constructive presence, as when one commits a robbery or murder and another keeps watch or guard at some convenient distance.(b)i And this rule hath also other excep tions: for, in case of murder by poisoning, a man may be a principal felon by preparing and laying the poison, or persuading another to drink it(c) who is () Book i. ch. 7, page 244. (a) 1 Hal. P. C. 615. () Foster, 350. Where a person stood outside a house to receive goods which a confederate was stealing within it, he was held a principal, (1 Ry. & M. C. C. 96;) and in the case of privately stealing in a shop, if several are acting together, some in the shop and some out of it, and the property is stolen by the hands of one of those who are in the shop, those who are outside are equally guilty as principals, (Russ. & R. C. C. 343;) and if several combine to forge an instrument, and each executes by himself a distinct part of the forgery, and they are not together when the instrument is completed, they are nevertheless all guilty as principals. Russ. & R. C. C. 446. But where a man incites a guilty agent to commit murder, and he is neither actually nor constructively present, the perpetrator is the principal felon, and the former only an accessory before the fact. 1 Hale, 435. 3 Inst. 49. Persons not present, nor sufficiently near to give assistance, are not principals. Russ. & R. C. C. 363, 421. Mere presence is not sufficient to constitute the party a principal, without he aids, assists, and abets. Thus, if two are fighting, and a third comes by and looks on, but assists neither, he is not guilty if homicide ensue, (1 Hale, 439. 2 Hawk. c. 29, s. 10;) but if several come with intent to do mischief, though only one does it, all the rest are principals in the second degree. 1 Hale, 440. 2 Hawk. c. 29, s. 8. So, if one present conìmand another to kill a third, both the agent and contriver are guilty. Id.; and see 1 Hale, 442, 443, 444. 2 Hawk. c. 29, s. 8. In a late singular case it was held that if a man encourage a woman to murder herself, and is present abetting her while she does so, such person is guilty of murder as a principal; and that if two encourage each other to murder themselves together, and one does so, but the other fails in the attempt upon himself, he is a principal in the murder of the other; but if it be uncertain whether the deceased really killed herself, or whether she came to her death by accident before the moment when she meant to destroy herself, it will not be murder in either. Russ. & R. C. C. 523. Besides presence and aiding and abetting the principal, there must be a participation in the felonious design, or at least the offence must be within the compass of the original intention, to constitute a principal in the second degree. Thus, if a master assaults another with malice prepense, and the servant, being ignorant of his master's malignant design, takes part with him, the servant is not an abettor of murder, but manslaughter only. See 1 Hale, 446. Russ. & R. C. C. 99. And in order to render persons liable as ignorant of its po sonous quality,(d) or giving it to him for that purpose, and yet not administer it himself, nor be present when the very deed of poisoning is committed.(e) And the same reasoning will hold with regard to other murders committed in the absence of the murderer by means which he [*35 had prepared beforehand, and which probably could not fail of their mischievous effect. As by laying a trap or pitfall for another, whereby he is killed, letting out a wild boast, with an intent to do mischief, or inciting a madman to commit murder, so that death thereupon ensues; in every of these cases the party offending is guilty of murder as a principal, in the first degree. For he cannot be called an accessory, that necessarily presupposing a principal; and the poison, the pitfall, the beast, or the madman cannot be held principals, being only the instruments of death. As therefore he must be certainly guilty either as principal or accessory, and cannot be so as accessory, it follows that he must be guilty as principal, and, if principal, then in the first degree; for there is no other criminal, much less a superior in the guilt, whom he could aid, abet, or assist.(f) II. An accessory is he who is not the chief actor in the offence, nor present at its performance, but is some way concerned therein, either before or after the fact committed. In considering the nature of which degree of guilt, we will first examine what offences admit of accessories, and what not; secondly, who may be an accessory before the fact; thirdly, who may be an accessory after it; and lastly, how accessories, considered merely as such, and distinct from principals, are to be treated. 1. And, first, as to what offences admit of accessories, and what not. In high treason there are no accessories, but all are principals: the same acts that make a man accessory in felony making him a principal in high treason, upon account of the heinousness of the crime.(g) Besides, it is to be considered, that the oare intent to commit treason is many times actual treason; as imagining the death of the king, or conspiring to take away his crown. And, as no one can advise and abet such a crime without an intention to have it done, there can be no accessories before the fact; since the *very advice and abet[*36 ment amount to principal treason. But this will not hold in the inferior species of high treason, which do not amount to the legal idea of compassing the death of the king, queen, or prince. For in those no advice to commit them, unless the thing be actually performed, will make a man a principal traitor.(h) In petit treason, murder, and felonies with or without benefit of clergy,' there may be accessories; except only in those offences which by judgment of law are sudden and unpremeditated, as manslaughter and the like, which therefore cannot have any accessories before the fact.(i) So too in petit larceny, and in all crimes under the degree of felony, there are no accessories either before or after the fact, but all persons concerned therein, if guilty at all, are princi. pals:(k) the same rule holding with regard to the highest and lowest offences, (4) Foster, 349. 3 Inst. 138. 1 Hal. P. C. 617. 2 Hawk. P. C. 315. g) 3 Inst. 138. 1 Hal. P. C. 613. (A) Foster, 342. principals in the second degree, the killing or other act must be in pursuance of some original unlawful purpose, and not collateral to it. 1 East, P. C. 358. The punishment of principals in the second degree is in general the same as principals m the first degree. 1 Leach, 64. 4 Burr. 2076. But where the act is necessarily personal, as in stealing privately from the person, he whose hand took the property can alone be guilty, under the statute, and aiders and abettors are only principals in a simple larceny. 1 Hale, 529. So, on an indictment on the statute against stabbing, only the party who actually stabs is ousted of clergy. 1 Jac. I. c. 8. 1 East, P. C. 348, 350. 1 Hale, 468. Principals in the second degree may be arraigned and tried before the principal in the first degree has been outlawed or found guilty. 1 Hale, 437. 4 Burr. 2076. 2 Hale, 223 9 Co. 67.-CHITTY. This seems to apply merely to felonies, where, by the law, judgment of death ought regularly to ensue. 1 Hale, 618. 1 Burn, 5. The crime of petit treason is now abo lished. CHITTY. VOL. II.-23 363 |