4. THERE is yet another case of neceffity, which has occafioned great fpeculation among the writers upon general law; viz. whether a man in extreme want of food or cloathing may justify stealing either, to relieve his present 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 reasons, 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 fome civilians: at leaft it is now antiquated, the law of England admitting no fuch excufe at present. And this it's doctrine is agreeable not only to the sentiments of many of the wifeft antients, particularly Ciceros, who holds that "fuum cuique incommodum ferendum eft, potius quam "de alterius commodis detrahendum;" but alfo to the Jewish law, as certified by king Solomon himself: "if a thief "steal to fatisfy his foul when he is hungry, he fhall restore "fevenfold, and fhall give all the fubftance of his houfe:" [ 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 ftrange 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 provision is made for the poor by the power of the civil magistrate, that it is impoffible that the most needy ftranger should ever be reduced to the neceffity of thieving to fupport nature, This cafe 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 induftry of the natives or • 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. VOL. IV. D 1 Hal. P. C. 54. • de off. 1. 3. c. 5. : Prov. vi. 30. ders ders every one to work or starve, yet must lose all their weight and efficacy in England, where charity is reduced to a fyftem, 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; efpecially when we confider, 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 ftates, particularly thofe which are democratical: and thefe have in it's ftead 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. To these feveral cafes, in which the incapacity of committing crimes arifes 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 per[33]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 vir. tue 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 inquiries, of what would be the confequence if the king were to act thus and thus: fince the law deems fo highly of his wifdom and virtue, as not even to prefume it poffible for him to do any thing inconsistent with his ftation and dignity; and therefore has made no provifion to remedy fuch a grievance. But of this fufficient was faid in a former volume", to which I must refer the reader. I Hal. P. C. 44, w Book I. ch. 7. pag. 244. CHAPTER THE THIRD. OF PRINCIPALS AND ACCESSORIES. T having been fhewn in the preceding chapter what perfons 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 perfons that are capable of offending; viz. as principal, and as acceffory. I. A MAN may be principal in an offence in two degrees. A principal, in the firft degree, is he that is the actor, or abfolute perpetrator of the crime; and, in the second degree, he is 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 alfo a conftructive prefence, as when one commits a robbery or murder, and another keeps watch or guard at fome 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 perfuading another to drink it who is ignorant of it's poifonous quality, or giving it to him for that purpofe; and yet not administer it himself, nor be prefent when the very deed of poisoning is committed. And the fame reasoning will hold, with regard to other murders committed in the abfence 1 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 exciting a madman to commit murder, so 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 prefuppofing a principal: and the poison, the pitfall, the beast, or the madman cannot be held principals, being only the inftruments of death. As therefore he must be certainly guilty, either as principal or acceffory, and cannot be so as accessory, 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 fuperior in the guilt, whom he could aid, abet, or affift f. II. AN acceffory is he who is not the chief actor in the offence, nor prefent 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, laftly, how acceffories, confidered merely as fuch, and diftinct from principals, are to be treated. 1. AND, firft, 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 treafon, upon account of the heinousness of the crime. Befides it is to be confidered, that the bare intent to commit treafon is many times actual treason; as imagining the death of the king, or confpiring to take away his crown. And, as no one can advife and abet fuch a crime without an intention to have it done, there can be no acceffories before the fact; fince the fi Hal. P. C. 617. 2 Hawk. P. C. 315. € 3 Inft. 138. i Hal, P. G. 613. very advice and abetment amount to principal treafon. But. this will not hold in the inferior fpecies of high treafon, which do not amount to the legal idea of compassing the death of the king, queen, or prince. For in thofe no advice to commit them, unless the thing be actually performed, will make a man a principal traitor ". In petit treason, murder, and felonies with or without benefit of elergy, there may be acceffories: except only in thofe offences, which by judgment of law are fudden and unpremeditated, as manflaughter and the like; which therefore cannot have any acceffories before the fact 1. So too in petit larceny, and in all crimes under the degree of felony, there are no acceffories either before or after the fact; but all perfons concerned therein, if guilty at all, are principals: the fame rule holding with regard to the highest and lowest offences; though upon different reafons. In treafon all are principals, propter odium delicti; in trefpafs all are principals, becaufe the law, quae de minimis non curat, does not defcend to diftinguish the different fhades of guilt in petty misdemefnors. It is a maxim, that accefforius fequitur naturam fui principalis: and therefore an accefforý cannot be guilty of a higher crime than his principal; being only punished, as a partaker of his guilt. So that if a fervant inftigates a stranger to kill his mafter, this being murder in the ftranger as principal, of course the fervant is acceffory only to the crime of murder; though, had he been present and affifting, he would have been guilty as principal of petty treason, and the ftranger of murder ". 2. As to the fecond point, who may be an acceffory before the fact; fir Matthew Hale" defines him to be one, who being abfent at the time of the crime committed, doth yet procure, counsel, or command another to commit a crime. Herein abfence is neceffary to make him an acceffory: for if fuch procurer, or the like, be prefent, he is guilty of the crime as principal. If A then advises B to kill another, and h Fofter. 342. I Hal. P. C. 615. 13 Inft. 139. m 2 Hawk. P. C. 315. D3 B does |