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 TM. But in such a case he is permitted to kill the assailant; for there the law of nature, and self-defence, it's primary canon, have made him his own protector. m 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 will cannot be said freely to [ 31 ] 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 ".. : 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 cloathing may justify stealing either, to relieve his present necessities? And this both Grotius and Puffendorf", 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 con m 1 Hal. P. C. 51. n Ibid. 53. • de jure b. & p. l.2. c.2. cession 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 it's doctrine is agreeable not only to the sentiments of many of the wisest antients, 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 [32]" when he is hungry, he shall restore sevenfold, he shall give "all the substance of his house:" which was the ordinary punishment for theft in that kingdom. (6) 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 9 Britton. c. 10. Mirr. c. 4. § 16. de off. 1. 3. c. 6. (6) It is rather singular that the author referring to Puffendorf but a few lines before, does not notice his observation upon this passage, that it does not suppose those circumstances of extreme indigence or necessity, upon which alone he is arguing. He had also before that, remarked that the case of the Jews formed an exception to his general principle, because among them the law compelled the giving of alms; and therefore on that account also the extremity could not occur, which he contends to be a justification of theft. It may be added too, that the force of the passage is a little altered by its not being cited entire. “Men do not despise a thief, if he steal to satisfy his soul when he is hungry; but if he be found," &c. 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 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 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 [ 33 ] his mind. 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 a grievance. But of this sufficient was said in a former volume ", to which I must refer the reader. 1 Hal. P. C. 44. Book 1. ch. 7. pag. 244. VOL. IV, D CHAPTER THE THIRD. OF PRINCIPALS AND ACCESSORIES. IT having been shewn 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 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 is who is present, aiding, and abetting the fact to be done. 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 b. And this rule hath also other exceptions: for, in case of murder by poisoning, a man may be a principal felon by preparing and laying the poison, or persuading another to drink it who is ignorant of it's poisonous quality, or giving it to him for that purpose; and yet not administer it himself, nor be present when the very deed of poisoning is committed ". And the same reasoning will hold, with regard to other murders committed in the absence [35] 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 inciting a madman to commit murder, so that : death thereupon ensues; 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 accessory, that necessarily pre-supposing 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 accessory, 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 superior in the guilt, whom he could aid, abet, or assist f. II. AN accessory is he who is not the chief actor in the offence, nor present at it's performance, but is someway concerned therein, either before or after the fact committed. In considering the nature of which degree of guilt, we will, first, examine, what offences admit of accessories, and what not: secondly, who may be an accessory before the fact: thirdly, who may be an accessory after it: and lastly, how accessories, considered merely as such, and distinct from principals, are to be treated. 1. AND, first, as to what offences admit of accessories, and what not. In high treason there are no accessories, but all are principals: the same acts, that make a man accessory in felony, making him a principal in high treason, upon account of the heinousness of the crime 5. Besides it is to be considered, that the bare intent to commit treason is many times actual treason: as imagining the death of the king, or conspiring 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 accessories before the fact; since the very advice and abetment amount to principal treason. But [ 36 ] this will not hold in the inferior species of high treason, which do not amount to the legal idea of compassing the death of the king, queen, or prince. For in those no advice to commit them, unless the thing be actually performed, will make a man a principal traitor". In petit treason, murder f 1 Hal. P. C. 617. 2 Haw. P. C. c. 29. § 11. 83 Inst. 138. 1 Hal. P.C. 613. h Foster.342. |