•

pernicious of the two. Here the will cannot be faid freely to exert itself, being rather paffive, than active; or, if active, it is rather in rejecting the greater evil than in choofing the less. Of this fort is that neceffity, 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 neceffary to beat, to wound, or perhaps to kill the offenders, rather than permit the murderer to escape, or the riot to continue. For the prefervation 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 otherwife amount to ".

4. THERE is yet another cafe of neceffity, which has occafioned great fpeculation among the writers upon general law; viz. whether a man in extreme want of food or clothing may justify stealing either, to relieve his prefent neceffities. And this both Grotius and Puffendorf, together with many other of the foreign jurists, hold in the affirmative; maintaining by many ingenious, humane, and plaufible reafons, that in fuch cafes the community of goods by a kind of tacit conceffion of fociety is revived. And fome even of our own lawyers have held the fame; 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 fuch excufe at prefent. And this it's doctrine is agreeable not only to the fentiments of many of the wifeft antients, particularly Cicero, who holds that "fuum cuique incommodum ferendum eft, potius "C quam de alterius commodis detrahendum;" but also to the Jewish law, as certified by king Solomon himself: "if a thief fteal to

66

fatisfy his foul when he is hungry, he shall restore sevenfold,

" and shall give all the substance of his houfe:" 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 infecurity, if liable to be invaded according to the wants of others; of which wants no man can poffibly be an adequate judge, but the party himself who pleads them. In this country especially, there would be a peculiar impropriety in admitting fo dubious an excufe: for by our laws fuch fufficient provifion is made for the poor by the power of the civil magistrate, that it is impoffible that the most needy stranger fhould ever be reduced to the neceffity of thieving to fupport 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 parfimonious 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 conftitution. Therefore our laws ought by no means to be taxed with being unmerciful, for denying this privilege to the neceffitous; especially when we confider, that the king, on the reprefentation of his minifters of justice, hath a power to soften the law, and to extend mercy in cafes of peculiar hardship. An advantage which is wanting in many ftates, particularly those which are democratical: and thefe have in it's stead introduced and adopted, in the body of the law itself, a multitude of circumstances tending to alleviate it's rigour. But the founders of our conftitution thought it better to veft in the crown the power of pardoning particular objects of compaffion, than to countenance and establish theft by one general undistinguishing law.

VII. IN the several cafes before-mentioned, the incapacity of committing crimes arifes from a deficiency of the will. To thefe we may add one more, in which the law supposes an incapacity of doing wrong from the excellence and perfection of the per

fon;

fon; which extend as well to the will as to the other qualities
of his mind. I mean the cafe of the king: who, by virtue of

his royal prerogative, is not under the coercive power of the
law";
which will not fuppofe him capable of committing a
folly, much lefs a crime. We are therefore, out of reverence
and decency, to forbear any idle enquiries, of what would be
the confequence if the king were to act thus and thus: fince
the law deems fo highly of his wisdom and virtue, as not even
to presume it poffible for him to do any thing inconsistent with
his station and dignity; and therefore has made no provifion to
remedy fuch a grievance. But of this fufficient was said in a
former volume", to which I must refer the reader.

w Book I, ch. 7. pag. 244.

I Hal. P. C. 44.

CHAPTER THE THIRD.

OF PRINCIPALS AND ACCESSORIES.

IT

T having been shewn in the preceding chapter what persons are, or are not, upon account of their fituation and circumftances, 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.

a1 Hal. P. C. 615.

b Fofter. 350.

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 abfolute perpetrator of the crime; and, in the second degree, he who is prefent, aiding, and abetting the fact to be done". Which prefence need not always be an actual immediate standing by, within fight or hearing of the fact; but there may be also a constructive prefence, as when one commits a robbery or murder, and another keeps watch or guard at some convenient distance. And this rule hath alfo other exceptions: for, in cafe of murder by poisoning, a man may be a principal felon, by preparing and laying the poison, or giving it to another (who is ignorant of it's poisonous quality) for that purpose; and yet not administer it himself, nor be present when the very deed of poisoning is committed". And the fame reasoning will hold,

with regard to other murders committed in the absence of the murderer, by means which he had prepared before-hand, 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 exciting a madman to commit murder, fo that death thereupon enfues; 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 acceffory, that neceffarily pre-fuppofing 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 acceffory, and cannot be so as acceffory, it follows that he must be guilty as principal: and if principal, then in the firft degree; for there is no other criminal, much less a superior in the guilt, whom he could aid, abet, or affist.

II. AN acceffory is he who is not the chief actor in the of fence, nor present at it's performance, but is fomeway concerned therein, either before or after the fact committed. In confidering the nature of which degree of guilt, we will, first, examine, what offences admit of acceffories, and what not: fecondly, who may be an acceffory before the fact: thirdly, who may be an acceffory after it: and, lastly, how acceffories, confidered merely as fuch, and distinct from principals, are to be treated.

I. AND, first, as to what offences admit of acceffories, and what not. In high treason there are no acceffories, but all are principals: the fame acts, that make a man acceffory in felony, making him a principal in high treason, upon account of the heinousness of the crime. Befides it is to be confidered, that the bare intent to commit treason is many times actual treason; as imagining the death of the king, or confpiring 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 acceffories

f

3 Inft. 138. 1 Hal. P. C. 613.

1 Hal. P. C. 617. 2 Hawk. P. C. 315.
E 2

before