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IV. A FOURTH deficiency of will, is where a man commits an unlawful act by misfortune or chance, and not by defign. Here the will obferves 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 occafion to fpeak hereafter; at prefent only obferving that if any accidental mifchief hap[27] pens to follow from the performance of a lawful act, the party ftands excufed from all guilt: but if a man be doing any thing unlawful, and a confequence enfues which he did not forefee or intend, as the death of a man or the like, his want of forefight fhall be no excufe; for, being guilty of one offence, in doing antecedently what is in itself unlawful, he is criminally guilty of whatever confequence may follow the first misbehaviour *(3)

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 feparately, there is not that conjunction between them, which is neceffary to form a criminal act. But this must be an ignorance or miftake of fact, and not an error in point of law. As if a man, intending to kill a thief or houfebreaker in his own house, by mistake kills one of his own family, this is no criminal action: but if a man thinks he has a right to kill a perfon excommunicated or outlawed, wherever ' he meets him, and does fo; this is wilful murder. For a mistake in point of law, which every perfon of difcretion y Cro. Car. 538.

x1 Hal. P. C. 39

(3) But a very important diftinction is made in fuch cafes, viz. whether the unlawful act is alfo in it's original nature wrong and mifchievous, for a person is not answerable for the incidental confequences of an unlawful act, which is merely a malum prohibitum; as where any unfortunate accident happens from an unqualified person being in purfuit of game, he is amenable only to the fame extent as a man duly qualified. Foft. 259. Hale, P. C. 475.


not only may, but is bound and prefumed to know, is in criminal cafes no fort of defence. Ignorantia juris, quod quifque tenetur fcire, neminem excufat, is as well the maxim of our own law, as it was of the Roman *.

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VI. A SIXTH fpecies of defect of will is that arising from compulfion and inevitable neceffity. These are a 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 fhould be excufed for thofe acts, which are done through unavoidable force and compulfion.

1. Of this nature, in the first place, is the obligation of [28] civil fubjection, whereby the inferior is constrained by the fuperior to act contrary to what his own reafon and inclination would fuggeft: as when a legiflator establishes iniquity by a law, and commands the fubject to do an act contrary to religion or found morality. How far this excufe will be admitted in foro confcientiae, or whether the inferior in this cafe is not bound to obey the divine, rather than the human law, it is not my business to decide; though the queftion I believe, among the cafuifts, will hardly bear a doubt. But, however that may be, obedience to the laws in being is undoubtedly a fufficient extenuation of civil guilt before the municipal tribunal. The fheriff, who burnt Latimer and Ridley, in the bigotted days of queen Mary, was not liable to punishment from Elizabeth, for executing fo horrid an office; being juftified by the commands of that magiftracy, which endeavoured to reItore superstition under the holy aufpices of it's merciless fifter, perfecution.

As to perfons in private relations; the principal cafe, where constraint of a superior is allowed as an excufe for cri

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minal misconduct, is with regard to the matrimonial subjection of the wife to her husband: for neither a fon nor a fervant are excufed for the commiffion of any crime, whether capital or otherwise, by the command or coercion of the parent or master ; though in some cases the command or authority of the husband, either exprefs 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; fhe is not guilty of any crime; being confidered as acting by compulfion and not of her own will. Which doctrine is at leaft a thousand years old in this kingdom, being to be found among the laws of king 29 Ina the Weft Saxon ". And it appears that, among the northern nations on the continent, this privilege extended to any woman tranfgreffing in concert with a man, and to any fervant that committed a joint offence with a freeman; the male or freeman only was punished, the female or flave difmiffed; "proculdubio quod alterum libertas, alterum neceffitas

impelleret." But (befides that in our law, which is a stranger to flavery, no impunity is given to fervants, 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 fe, and prohibited by the law of nature, as murder and the like (4): not only because these are of a deeper dye; but also, fince in a state of nature no one is in subjection to another, it would be unreasonable to screen an offender from the punifhment due to natural crimes, by the refinements and subordinations of civil fociety. In treafon alfo, (the highest crime which a member of fociety can, as fuch, be guilty of,)

b 1 Hawk. P. C. 3.

C1 Hal. P. C. 45.


cap. 57.

e Stiernh. de jure Sucon. 1. 2. c. 4»

(4) The law feems to protect the wife in all felonies committed by her in company with her husband, except murder and manflaughter. 1 Hal. P. C. 47.


no plea of coverture fhall excufe the wife; no prefumption of the husband's coercion shall extenuate her guilt: as well because of the odiousness and dangerous confequence of the crime itself, as because the husband, having broken through the most facred 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 mifdemefnors alfo, 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 oeconomy or government of the house, in which the wife has a principal fhare; and is also fuch an offence as the law prefumes to be generally conducted by the intrigues of the female fex. And in all cafes, where the wife offends alone, without the company or coercion of her husband, she is refponfible for her offence, as much as any feme-fole.

2. ANOTHER species of compulfion or neceffity is what [ 30 ] our law calls duress per minas; 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 mifdemefnors; at leaft before the human tribunal. But then that fear, which compels a man to do an unwarrantable action, ought to be just and well-grounded; fuch, "qui cadere "poffit in virum conftantem, non timidum et meticulofum," as, Bracton expreffes it', in the words of the civil law *. Therefore, in time of war or rebellion, a man may be juftified in doing many treasonable acts by compulfion of the enemy or rebels, which would admit of no excufe in the time of peace' (5). This however feems only, or at least principally,

f 1 Hal. P. C. 47.

g 1 Hawk, P. C. 2, 3. h See Vol. I. pag. 131.

11. 2. f. 16.

k Ff. 4. 2. 5 & 6.

11 Hal. P. C. 50.

(5) The fear of having houfes burnt or goods fpoiled is no excufe in the eye of the law for joining and marching with rebels. The only force that doth excufe is a force upon the perfon, and prefent fear of death; and this force and fear must continue all the time


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to hold as to pofitive crimes, fo created by the laws of fociety; and which therefore fociety may excufe; but not as to natural offences fo declared by the law of God, wherein human magiftrates are only the executioners of divine punishment. And therefore though a man be violently affaulted, and hath no other poffible means of escaping death, but by killing an innocent perfon: this fear and force fhall not acquit him of murder; for he ought rather to die himself, than escape by the murder of an innocent ". But in fuch a cafe he is permitted to kill the affailant; for there the law of nature, and felf-defence it's primary canon, have made him his own protector.

3. THERE is a third fpecies of neceffity, which may be distinguished from the actual compulfion of external force or fear; being the refult of reafon and reflection, which act upon and constrain a man's will, and oblige him to do an action, which without fuch obligation would be criminal. And that is, when a man has his choice of two evils fet before him, and, being under a neceffity of chufing one, he chufes the leaft 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 chufing the lefs. 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 difperse a riot, and refiftance 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 ". m Hal. P. C. 51.

n Ibid. 53.

time the party remains with the rebels. It is incumbent upon men, who make force their defence, to fhew an actual force, and that they joined pro timore mortis, et recefferunt quam cito potuerunt. Faft. 14. 216.


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