ous and mad, as in Spain and Italy, than where it only renders them stupid and heavy, as in Germany and more northern countries. And accordingly, in the warm climate of Greece, a law of Pittacus enacted, "that he who committed a crime when drunk, should receive a double punishment;" one for the crime itself, and the other for the ebriety which prompted him to commit it.(t) The Roman law, indeed, made great allowances for this vice: "per vinum delapsis capitalis pæna remittitur."(u) But the law of England, considering how easy it is to counterfeit this excuse, and how weak an excuse it is (though real), will not suffer any man thus to privilege one crime by another.(w)(3)

IV. A fourth deficiency of will is where a man commits an unlawful act by misfortune or chance, and not by design. Here the will observes a total neutrality, and does not co-operate with the deed; which therefore wants one main ingredient of a crime. Of this, when it affects the life of another, we shall find more occasion to speak hereafter; at present only observing, that if any accidental mischief *happens to follow from the performance of a lawful [*27] act, the party stands excused from all guilt; but if a man be doing any thing unlawful, and a consequence ensues which he did not foresee or intend, as the death of a man or the like, his want of foresight shall be no excuse; for, being guilty of one offence, in doing antecedently what is in itself unlawful, he is criminally guilty of whatever consequence may follow the first misbehaviour.(2)(4)

V. Fifthly: ignorance or mistake is another defect of will; when a man, intending to do a lawful act, does that which is unlawful. For here, the deed and the will acting separately, there is not that conjunction between them which is necessary to form a criminal act. But this must be an ignorance or mistake of fact and not an error in point of law. As if a man, intending to kill a thief or house breaker in his own house, by mistake kills one of his own family, this is no criminal action: (y) but if a man thinks he has a right to kill a person excommunicated or outlawed, wherever he meets him, and does so; this is wilful murder. For a mistake in point of law, which every person of discretion not only may, but is bound and presumed to know, is in criminal cases no sort of defence. Ignorantia juris, quod quisque tenetur scire, neminem excusat, is as well the maxim of our own law,(z) as it was of the Roman.(a)(5)

(u) Ff. 49. 16. 6.

(e) Plowd. 313.

(w) Plowd, 19. (a) Ff. 22. 6. 9.

(t) Puff. L. of N., b. 8, c. 3. (y) Cro. Car. 538.

(x)1 Hal. P. C. 39.

(3) A man who, by means of intoxication, voluntarily puts himself in condition to have no control of his actions, must be held to intend the consequences. The safety of community requires this rule. Intoxication is so easily counterfeited, and when real it is so often resorted to as a means of nerving the person up to the commission of some desperate act, that the law cannot recognize it as an excuse for the commission of crime. U. S. v. Drew, 5 Mason, 28; Pirtle v. State, 9 Humph. 663; Commonwealth v. Hawkins, 3 Gray, 463; People v. Garbutt, 17 Mich. 9; Choice v. State, 31 Geo. 424; State v. Avery, 44 N. H. 392. Nevertheless, the drunkenness of the party is often an important consideration in criminal cases, where the guilty knowledge or intent constitute the principal ingredient of the crime, so as to make the peculiar state and condition of the criminal's mind at the time, with reference to the act done, the important subject of inquiry. See Swan v. State, 4 Humph. 141; U. S. v. Roudenbush, 1 Bald. 517; Kelley v. State, 3 S. and M. 518. As in the case of passing connterfeit money: Pigman v. State, 14 Ohio, 555; or the appropriation of another's property which might be larceny or a trespass merely, according as the specific intent to steal was present or absent. Rex v. Pitman, 2 C. and P. 423. See further, O'Herrin v. State, 14 Ind. 420; State v. Cross, 27 Mo. 332; Golden v. State, 25 Geo. 527; Mooney v. State, 33 Ala. 419; Regina v. Cruse, 8 C. and P. 541; State v. Garey, 11 Minn. 154; People v. Harris, 29 Cal. 678; Bailey v. State, 26 Ind. 42; State v. Schingen, 20 Wis. 74. Where insanity results from long continued intoxication, the insane person is no more to be punished for his acts than if the delirium had proceeded from causes not under his control. U. S. v. Drew, 5 Mason, 28; State v. McCants, 1 Spears, 384; Bailey v. State, 26 Ind. 423; State v. Hundley, 46 Mo. 414.

(4) [By "unlawful" is intended here, any act morally wrong; that which is malum in se; for if it was barely malum prohibitum, as shooting at game by a person not qualified by statute law to use a gun for that purpose, the party will not be answerable for the unforeseen consequence. Foster, 259.]

(5) Ignorance of the law, which every man is bound to know, excuses no man. See the maxim and illustrations in Broom's Legal Maxims, p. 190.

And this maxim in criminal cases cannot often work a wrong, for there are few acts punish 313

VOL. II.-40

VI. A sixth species of defect of will is that arising from compulsion and inev itable necessity. These are constraint upon the will, whereby a man is urged to do that which his judgment disapproves; and which, it is to be presumed, his will (if left to itself) would reject. As punishments are therefore only inflicted for the abuse of that free will which God has given to man, it is highly just 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 subjec[*28] tion, 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 conscientia, 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 causists, 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 burnt 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 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)(6) Which doctrine is at least a

able criminally which a party can be excusable for committing, whether he is aware of the penalty or not. Nevertheless, the ignorance of the party may sometimes be ground for inflicting a nominal punishment, or recommending him to pardon. Rex v. Lynn, 2 T. R. 733; Rex v. Bailey, R. and Ry. 1; Regina v. Esop. 7 C. and P. 456. And in some cases where the intent is the essence of the crime, it may constitute a defence. As where a person is prosecuted for larcency for the conversion to his own use of money which he had found, and which he erroneously believed became his own by the finding. The Queen v. Reed, Car. and M. 306. Or where parties riotously destroy a house, in the mistaken belief that in law it belongs to one of them. The Queen v. Langford, Car. and M. 602. Or where a bankrupt, in honestly following the advice of counsel, withholds property from his schedule which ought to be included, and makes to the same an affidavit which in law is false. U. S. v. Conner, 3 McLean, 573.

(6) The husband must, however, be present when the offence is committed, or the presumption of coercion by him does not arise. Rex v. Morris. Russ. and Ry. 270. As to what is sufficient presence, see R. v. Connolly, 2 Lew. C. C. 229. And even then the presumption is not a conclusive one, but only prima facie, and it may be shown by evidence that in fact the wife was the real criminal. R. v. Hammond, 1 Leach, 347; 1 Bish. Cr. L. § 280; Whart. Cr. L. § 2475. The wife may therefore be indicted and tried jointly with the husband, and must rely on the coercion for an acquittal when the proofs are adduced at the trial. State v. Parkerson, 1 Strob. 169; Corimonwealth v. Murphy, 2 Gray, 510.

Coercion is not admitted as an excuse in the case of treason or murder. Reg. v. Manning, 2 C. and K. 903; and perhaps robbery should be added to this list. Arch. Cr. L. 6; 1 Bish. Cr. L. § 270; Rex v. Cruse, & C. and P. 545. It is allowed in other felonies, and in misdemeanors generally. R. v. Ingram, 1 Salk. 384; Commonwealth v. Neal, 10 Mass. 152. But the case of keeping a brothel and gaming-house are exceptions. R. v. Dixon, 10 Mod. 336; State v. Bentz, 11 Mo. 27; Commonwealth v. Lewis, Met. 151. And husband and wife may be jointly indicted and convicted of an assault: Regina r. Cruse, 8 C. and P. 541; or of keeping a liquor nuisance Commonwealth v. Tryon, 99 Mass. 442.

314

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 uations on the continent, this privilege extended to any woman trans- [*29] gressing 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 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) 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.

*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 [*30] 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) (7) 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

(f) 1 Hal. P. C. 47. (g) 1 Hawk. P. C. 2, 3. (k) Ff. 4, 2, 5 and 6. (1) Ilal. P. C. 50.

(d) Cap. 57. (e) Stiernh. de jure Sucon. 1. 2, c. 4.
(h) See book, I, p. 131.
(i) l. 2, f. 16.

The presumption of coercion will apply to admissions made by the wife in the husband's presence, calculated to exonerate him and inculpate herself. Reg. v. Laugher, 2 C. and K. 225. I is not necessary for the woman to prove an actual marriage in these cases; the jury may pre gume it from evidence of cohabitation and reputation. Rex v. Woodward, 8 C. and P. 561; Reg. r. Good, 1 C. and K. 185.

That an agent or other person acting under the authority of another is not excused from criminal liability by the command of his superior, see Commonwealth v. Hadley, 11 Met. 66; Kliffield v. State, 4 How. Miss. 304; Hays v. State, 13 Mo. 246; State v. Bugbee, 22 Vt. 32; Barrow v. Page, 5 Hayw. 97. See, also, post, p. 37, n.

(7) [The fear of having houses burnt, 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.]

See also Rex v. McGrowther, 1 East, P. C. 71; Respublica v. McCarty, 2 Dall. 86.

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 selfdefence, 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 choosing one, he chooses the least pernicious of the two. Here the [*31] 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 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. (2) (8)

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 (0) and Puffendorf, (p) together with many other of the foreign jurists, hold in the affimative; maintaining by many ingenious, humaue, 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. (?) And this its doctrine is agreeable not only to the sentiments of many of the wisest ancients, particularly Cicero, (x) who holds that " suum cuique incommodum ferendum est, potius quam de allerius commodis detrahendum;" but also to the Jewish law, as certified by King Solomon himself: ()" if a thief steals to satisfy his soul when he is hungry, he shall restore seven-fold, he shall give all the substance of his house:"

[*32] 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. The 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 necessito as; 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

(n) 1 Hal. P. C. 52. (0) De jure b. and p. 1. 2, c. 2.
(7) Britton, c. 10. Mirr. c. 1, § le.
(t) Prov. vi. 30.

(m) 1 Hal. P. C. 51.
(p) L. of Nat. and N. 1, 2, c. 6.
s) De off. 13, c. 5.

(r) 1 IIal.P. C. 31.

(8) See State v. Roane, 2 Dev. 58; Tate v. State, 5 Black f. 73.

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 preroga[*33] tive, is not under the coercive power of the law; (u) 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 was 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 provisions to remedy such a greviance. But of this sufficient was said in a former volume, (v) to which I must refer the reader.

CHAPTER III.

OF PRINCIPALS AND ACCESSORIES.

IT having been shown in the preceding chapter what persons are, or are not, upen 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 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. (6) (1) And this rule hath also other excep‐

(u) 1 Hal. P. C. 44.

(r) Book I, ch. 7, page 244.

(a) 1 Hal. P. C. 615.

(b) Foster, 350.

(1) [Where a person stood outside a house to receive goods which a confederate was stealmg within it, he was held a principal: 1 Ry. and 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. and 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. and 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, and 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 command another to kill a third, both the agent and contriver are guilty. Id.; and see 1 Hale, 442, 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 if the other fails in the attempt upon himself, he is a principal in the murder of the other; but if it be uncertain