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 otherwise, 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) (10). Which doctrine is at least

a thousand years old in this kingdom, being to be found among the [*29] 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 (11): not only because these are of a deeper dye, but also, since in a state of nature no one is in subjection 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 odiousness 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 misdemeanors also we may remark another exception; that a wife may be indicted and set in the pillory with her husband, for keeping a brothel; 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) (12). And in all cases,

(b) 1 Hawk. P. C. 3.
(c) 1 Hal. P. C. 45.
(d) cap. 57.

(10) The husband, however, must be present when the offence is committed, or the presumption of coercion by him does not arise. Rex v. Morris, R. and R. C. C. 270. The wife is not treated as an accessary 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, § 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.

(e) Stiernh. de jure Sucon. 1. 2, c. 4.

(f) 1 Hal. P. C. 47.

(g) 1 Hawk. P. C. 2. 3.

(11) 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.

(12) In all misdemeanors 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. & 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

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.

*2. Another species of compulsion or necessity is what our law [ 30 ] 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 misdemeanors; 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 the time of peace (1) (13.) 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.

[*31 ]

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 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 greate evil than in choosing the less. 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 (14). For the preservation of the peace of the kingdom, 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).

Of this sort

4. There is yet another case of necessity, which has occasioned great speculation among the writers upon general law; viz. whether a man in ex

(h) See book. I. p. 131.

(i) l. 2, f. 16.

(k) Ff. 4. 2. 5 & 6.

have that benefit;

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 misdemeanors.

(13) The fear of having houses burnt, or goods spoiled, is no excuse in the eye of the law, for joining and marching with rebels.

(1) 1 Hal. P. C. 50.
(m) 1 Hal. P. C. 51.
(n) 1 Hal. P. C. 52.

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 shew an actual force, and that they
joined pro
timore mortis, et recesserunt quàm cito
potuerunt. Fost. 14. 216.
(14) See 2 R. S. 660.

treme 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 ancients, particularly Cicero (s), who holds that "suum cuique inoommodum 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 [*32] is hungry, he shall restore *seven-fold, and shall give all the sub

stance of his house:" which was the ordinary punishment for theft in that kingdom. 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 excel[*33] lence 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 him capable of committing a folly, much less a crime (15). We are therefore, out of reverence and decen

(0) de jure b. & p. 1. 2, c. 2.

(p) L. of Nat. and N. 1. 2, c. 6.

(q) Britton. c. 10. Mirr. c. 4, ◊ 16.

(7) 1 Hal. P. C. 54.

(s) de off. 1. 3. c. 5.
(t) Prov. vi. 30.
(u) 1 Hal. P. C. 44.

(15) In the U. S. the highest officer has no such exemption.

cy, 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.

CHAPTER III.

OF PRINCIPALS AND ACCESSARIES (1).

Ir having been shewn 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 accessary.

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) (2).

(v) Book I. ch. 7. page 244. (a) 1 Hal. P. C. 615.

(1) See in general, 1 Chitty Crim. L. 255 to 275. 3 ed. id. index, tit. Accessaries, and tit. Principals.

(2) 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 accessary 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, I

(b) Foster, 350.

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 command another to kill a third, both the agent and contriver are guilty. Id.; and see I Hale, 442, 3, 4. 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

And this rule hath also other exceptions: 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 ignorant of its poisonous 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 [*35] committed in the absence of the murderer, by means which he 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 beast, 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 accessary, that necessarily pre-supposing 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 accessary, and cannot be so as accessary, 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 accessary 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 accessaries, and what not: secondly, who may be an accessary before the fact: thirdly, who may be an accessary after it: and, lastly, how accessaries, considered merely as such, and distinct from principals, are to be treated.

1. And, first, as to what offences admit of accessaries, and what not. In high treason there are no accessaries, but all are principals: the same acts, that make a man accessary 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 bare 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 accessaries before [*36] the fact; since the *very advice and abetment 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).

(c) Kel. 52.

(d) Foster, 349.

(e) 3 Inst. 138.

Hale, 446. Russ. & R. C. C. 99. And in order to render persons liable as principals in the second degree, the killing or other act must be in pursuance of some original unlawful purpose, and not collateral to it. I East, P. Č. 358.

The punishment of principals in the second degree, is in general the same as principals in 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

(f) 1 Hal. P. C. 617. 2 Haw. P. C. 315.
(g) 3 Inst. 138. 1 Hal. P. C. 613.
(h) Foster, 342.

guilty, under the statute, and aiders and abetters 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. Í 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.