Sivut kuvina

is an offense touching the domestic economy or government of the house, in which the wife has a principal share, and is also such an offense as the law presumes to be generally conducted by the intrigues of the female sex.g1 And in all cases where the wife offends alone, without the company or coercion of her husband, she is responsible for her offense, as much as any femesole.

2. Another species of compulsion or necessity is what our [ 30 ] law calls duress per minas ;h or threats and menaces which in- 2. Duress duce a fear of death or other bodily harm, and which take per minas. 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, 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" 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 offenses 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-defense, its primary canon, have made him his own protector.

8 1 Hawk., P. C., 2, 3.
See vol. i., p. 131.
i L. 2, f. 16.

(10) 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 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 misdemeanors.-[CHRISTIAN.] It must be

* Ff., 4, 2, 5, and 6.
11 Hal., P. C., 50.
m Ibid., 51.

considered as still a doubtful question,
whether the wife is punishable with the
husband for all misdemeanors. See 8
Car. & P., 19, 541.

(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 defense, to show an actual force, and that they joined pro timore mortis, et recesserunt quàm citò potuerunt. Fost., 14, 216.-[CHRISTIAN.]

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, [31] being under a necessity of choosing one, he chooses the least pernicious of the two. Here the will can not 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 offense, 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 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

3. Where party

Choose be tween two


4. Want of


4. There is yet another case of necessity which has occafood or cloth- sioned 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 Grotiuso 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 concession. of society, is revived. And some even of our own lawyers have held the same, 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. And this its doctrine is agreeable not only to the sentiments of many of the wisest ancients, particularly Cicero, 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: "if a thief steal to satisfy his soul when he is hungry, he shall restore [ 32 ] seven-fold, and shall give all the substance 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 pe

1 Hal., P. C., 53.

• De Jure B. and P., 1. 2, c. 2.

P L. of Nat. and N., 1. 2, c. 6.

1 Britton, c. 10; Mirr., c. 4, § 16.

1 Hal., P. C., 54.

De Off., 1. 3, c. 5.
Prov., vi., 30.

culiar 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 rigor. 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 com- VII. Where mitting crimes arises from a deficiency of the will, we may posed to be add one more, in which the law supposes an incapacity of doing incapable of wrong, from the excellence and perfection of the person; which a wrong. extend as well to the will as to the other qualities of the mind. [ 33 ] I mean the case of the king, who, by virtue of his royal prerogative, is not under the coercive power of the law," which will not suppose 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 grievance. But of this sufficient was said in a former volume,w to which I must refer the reader.

1 Hal., P. C., 44.

Book i., ch. 7, p.


Principals and accessories.

I. Principals.




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 offense 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. And this rule hath also other exceptions; for, in case

a 1 Hal., P. C., 615.

(1) See, in general, 1 Chitty, Crim. L., 255 to 275, 3d ed.; Id., index, tit. Accessories, and tit. Principals.

b Foster, 350.

transaction; it is sufficient to show that he originally assented to the robbery, and was present, aiding and abetting, when the offense was consummated, al(2) Where a person stood outside a though he was not at the inception; as house, to receive goods which a confed- where the servants of A. feloniously reerate was stealing within it, he was held moved goods in A.'s ware-house from one a principal, 1 Moody, C. C., 96; and in part of it to another, and B. several hours the case of privately stealing in a shop, afterward assisted in removing the goods if several are acting together, some in from the ware-house, it was held B. the shop and some out of it, and the was a principal, since it was a continuing property is stolen by the hands of one transaction. 2 East, P. C., 767, 768. of those who are in the shop, those who So, if several persons come to a house are outside are equally guilty as princi- with intent to make an affray, and one pals, Russ. & R., C. C., 343; and if sev- be killed, while the rest are engaged in eral combine to forge an instrument, and riotous and illegal proceedings, though each executes by himself a distinct part they are dispersed in different rooms, all of the forgery, and they are not togeth- will be principals in the murder. Dalt., er when the instrument is completed, J., c. 161; 1 Hale, 439. But where a they are nevertheless all guilty as prin- man incites a guilty agent to commit cipals. Russ. & R., C. C., 446. If sev- murder, and he is neither actually nor eral act in concert to steal a man's goods, constructively present, the perpetrator and he is induced by fraud to trust one is the principal felon, and the former of them, in the presence of the others, only an accessory before the fact. 1 with the possession of such goods, and Hale, 435; 3 Iust., 49. Persons not another of them entices him away, that present, nor sufficiently near to give asthe man who has his goods may carry sistance, are not principals. Russ. & R., them off, all are principals. Russ. & R., C. C., 363, 421. Where H. and S. broke C. C., 305. And it is not necessary to open a ware-house and stole thereout show that one indicted as a principal goods, which they carried along the was present during the whole of the street thirty yards, and then fetched the

of murder by poisoning, a man may be a principal felon by preparing and laying the poison, or persuading another to drink

prisoner, who was apprised of the robbery, and he assisted in carrying the property away, he was considered only as an accessory, and not a principal, the felony being completed before the prisoner interfered. Russ. & R., C. C., 332, 3, notes; 2 East, P. C., 767. [See, also, Russ. & R., C. C., 25, 113, 142, 249; 7 C. & P., 801; 9 C. & P., 437; 1 Carr. & Mar., 215.] And if several persons are out with the intention of committing a felony, and upon an alarm run different ways, and one of them maim a pursuer to avoid being taken, the others are not to be considered as principals in such an act. Russ. & R., C. C., 99. Persons privy to the uttering of a forged note by previous concert with the utterer, but who are not present at the time of uttering, or so near as to be able to afford aid or assistance, are not principals, but accessories before the fact. Russ. & R., C. C., 25; 2 East, P. C., 974, S. C.; and see Russ. & R., C. C., 365. And if several plan the uttering of a forged order for payment of money, and it is uttered accordingly by one in the absence of the others, the actual utterer alone is the principal. Russ. & R., C. C., 249. And it is not sufficient to make a person a principal in uttering a forged note, that he came with the utterer to the town where it was uttered, went out with him from the inn at which they had put up a little before he uttered it, and joined him again in the street a short time after the uttering, and at some little distance from the place of uttering, and ran away when the utterer was apprehended. Russ. & R., C. C., 113. In personating a seaman to obtain his prize-money, contrary to the 37 Geo. III., c. 127, all persons abetting are principals. Russ. & R., C. C., 353; see, further, 1 Chit., Crim. Law, 2d ed., 256, 7.

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 wheth er the deceased really killed herself, or whether she came to her death by acci dent before the moment when she meant to destroy herself, it will not be murder in either. Russ. & R., C. C., 523. See 1 Mood., C. C., 356; 8 C. & P., 418.

Besides presence, and aiding and abetting the principal, there must be a participation in the felonious design, or, at least, the offense 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 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., 258.

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. [With regard to most offenses, express provision to that effect is made by statute. See 7 & 8 Geo. IV., c. 29, s. 61; c. 30, s. 26; 9 Geo. IV., c. 31, s. 3; 1 Will. IV., c. 66, s. 25; 2 Will. IV., c. 34, s. 18; 1 Vict., c. 36, s. 35; c. 85, s. 7; c. 86, s. 6; c. 87, s. 9; c. 88, s. 4; c. 89, s. 11. But where, upon the construction of any particular statute, principals in the second degree are not punishable with death, and no punishment is prescribed by the statute, they may be transported for seven years, or imprisoned for a term not exceeding two years. 7 & 8 Geo. IV., c. 28, s. 10.]

Mere presence is not sufficient to constitute the party a principal, unless 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 command another to kill a third, both the agent and contriver are guilty, Id.; and see 1 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 314.]-[CHITTY.]*

* A principal in the second degree in the commission of a felony, and any per

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 [and may be convicted, though the party charged as principal in the first degree be acquitted. 2 Show., 510; Salk., 334; 1 Leach, 360; Russ. & R., C. C.,

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