to religion or sound morality. How far this excuse will be admitted in foro conscientiæ, 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 casuists, 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) (5) Which doctrine is at least a 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 north[*29] ern nations on the continent, this privilege extended to any woman transgressing 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 com (b) 1 Hawk. P. C. 8. (c) 1. Hal P. C. 45. (S) 1 Hal. P. O. 47. (5) The husband must, however, be present when the offense 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., 7th ed., §§ 359, 891a; 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; Commonwealth 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., 887; and perhaps robbery should be added to this list. Arch. Cr. L., 6; 1 Bish. Cr. L., 7th ed., § 358; Rex v. Cruse, 8 C. and P., 541. 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, i Met., 151. And husband and wife may be jointly indicted and convicted of an assault: Regina V. Cruse, 8 C. and P., 541; or of keeping a liquor nuisance. Commonwealth v. Tryon, 99 Mass., 442. munity 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 [*30] duress per minas; (h) 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 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) (6) 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 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 self-defence, 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 conse (g) 1 Hawk. P. C. 2, 3. (h) See book I, p. 131. (i) l. 2, f. 18. (k) Ff. 4, 2, 5 and 6. (m) 1 Hal. P. C. 51. 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. It is not necessary for the woman to prove an actual marriage in these cases; the jury may presume it from evidence of cohabitation and reputation. Rex v. Woodward, 8 C. and P., 561; Reg. v. 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; Kliffleld v. State, 4 How. Miss., 306; Hays v. State, 13 Mo., 246; State v. Bugbee, 22 Vt., 32; Barrow v. Page, 5 Hayw., 97. See, also, post, p. 37, n. (6) Respublica v. McCarty, 2 Dall., 86. "In the eye of the law nothing will excuse the act of joining an enemy, but the fear of immediate death; not the fear of any inferior personal injury, nor the apprehension of any outrage upon property." See, also, Rex v. McGrowther, 1 East, P. C., 71. quence to the public; and therefore excuse the felony, which the killing would otherwise amount to. (n) (7) 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 (o) and Puffendorf, (p) 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 confession of society, is revived. And some even of our own lawyers have held the same, (9) 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. (r) And this its doctrine is agreeable not only to the sentiments of many of the wisest ancients, particularly Cicero, (s) 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: (t) “if a [*32] thief steals to satisfy his soul 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. 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 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 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 [*33] of 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; (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 grievance. But of this sufficient was said in a former volume, (v) to which I must refer the reader. (n) 1 Hal. P. C. 52. (0) De jure b. and p. 1. 2, c. 2. (p) L. of Nat and N. 1, 2, c. 6. (q) Britton, c. 10. Mirr. c. 4, § 16. (i) Prov. vi. 30. (7) See State v. Roane, 2 Dev., 58; Tate v. State, 5 Blackf., 73. CHAPTER III. OF PRINCIPALS AND ACCESSORIES. Ir having been shown 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 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. (b) (1) 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 (c) who is ignorant of its poisonous quality, (d) 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. (e) And the same reasoning will hold, with regard to other murders committed in the absence of the murderer, by means which he had prepared beforehand, and which probably could not fail (a) 1 Hal. P. C. 615. (b) Foster, 850. [*35] (c) Kel. 52. (d) Foster. 349. (e) 8 Inst. 188. (1) To be a principal in the first degree, it is not necessary that one should be actually present at the commission of the injury; as if one lay poison for another and the latter takes it. See Rex v. Harley, 4 C. & P., 369. If several combine to forge an instrument, each doing a separate part, and they are not together when the instrument is completed, all are guilty as principals. See Rex v. Bingley, R. & R., 446. So, a person may be a principal if he acts by means of an insane or innocent person or an inanimate substance. See Commonwealth v. Hill, 11 Mass., 136; Adams v. People, 1 N. Y., 173; S. C., 45 Am. Dec., 468; Reg. v. Michael, 9 C. & P., 356; R. v. Mazeau, 9°C. & P., 676; Reg. v. Clifford, 2 C. & K., 202. If the instrument so used is aware of his act, he is a principal in the first degree, and his employer, if present at the time of the commission of the offense, is principal in the second degree; if absent, an accessory before the fact. Sce Rex v. Stewart, R. & R., 363; Fost., 349. As to criminal liability of a master for the acts of his servant in his business, see Com. v. Nichols, 10 Met., 259; S. C., 43 Am. Dec., 432. Mere presence at the commission of a felony, if one takes no part in it and does not act in concert with the felons, does not make one a principal in the second degree. See Connaughty v. State, 1 Wis., 159; Plummer v. Commonwealth, 1 Bush, 76; People v. Ah Ping, 27 Cal., 489; State v. Maloy, 44 la., 104. To convict a person as principal in the second degree, it is not necessary to show actual assistance. It is enough if one's will contributed to the criminal act, and at the time was in position to render assistance to the perpetrator, if necessary. Rex v. Owen, 1 Mood. 96; Commonwealth v. Knapp, 9 Pick., 496; Thompson v. Commonwealth, 1 Metc. (Ky.), 13; Rex v. Kelly, R. & R., 420. Any concerted participation in a general felonious plan, provided there be constructive presence, is enough to warrant a conviction as a principal in the second degree. See Rex v Standby, R. & R., 305; Rex v. Passey, T. C. & P., 282; Rex v. Lockett, Ibid., 300. If one counsels another to commit suicide, and it is committed, the one so advising is guilty of murder. See Commonwealth v. Bowen, 13 Mass., 306. So, the seconds at a duel, if death ensue are held as principals for murder. Reg. v. Young, 8 C. & P., 644. In some states the distinction between a principal in the first and in the second degree is abolished by statute. All concerned in the commission of the offense, and all who aid or abet its commission, may be punished as principals. A person may be principal in a crime in a state where, at the time, he is not, if he is instigator of the criminal act and accomplishes it through innocent agents. People v. Adams, 3 Denio, 190; S. C., 45 Am. Dec., 468. 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 incíting 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. (ƒ) II. An accessory is he who is not the chief actor in the offence, nor present at its performance, but in some way 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. In 1. And, first, as to what offences admit of accessories, and what not. 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.(g) 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, [*36] there can be no accessories before the fact; since the *very advice and abetment amount to principal treason. But 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, qucen, or prince. For in those no advice to commit them, unless the thing be actually performed, will make a man a principal traitor. (h) In petit treason, murder and felonies, with or without benefit of clergy, there may be accessories: except only in those offences which by judgment of law are sudden and unpremeditated, as manslaughter and the like; which therefore cannot have any accessories before the fact. (i) So, too, in petit larceny, and in all crimes under the degree of felony, there are no accessories either before or after the fact; but all persons concerned therein, if guilty at all, are principals; (k) the same rule holding with regard to the highest and lowest offences, though upon different reasons. In treason all are principals, propter odium delicti; in trespass all are principals, because the law, quæ de minimis non curat, does not descend to distinguish the different shades of guilt in petty misdemeanors. It is a maxim, that accessorius sequitur naturam sui principalis; (1) and therefore an accessory cannot be guilty of a higher crime than his principal; being only punished as a partaker of his guilt. So that if a servant instigates a stranger to kill his master, this being murder in the stranger as principal, of course the servant is accessory only to the crime of murder; though, had he been present and assisting, he would have been guilty as principal of petit treason, and the stranger of murder.(m) 2. As to the second point, who may be an accessory before the fact; Sir Matthew Hale (n) defines him to be one who being absent at the time of the crime committed, doth yet procure, counsel, or command another to commit a crime. Herein absence is necessary to make him an accessory: for if such procurer, or the like, be present, he is guilty of the crime as principal. If A then advises B to kill another, and *B does it in the absence of A, now B is [*37] principal and A is accessory in the murder. And this holds, even though the party killed be not in rerum natura at the time of the advice (f) 1 Hal. P. C. 617. 2 Haw. P. C. 613. (i) 1 Hal. P. C. 615. (k) Ibid. 613, (n) 1 Hal. P. C. 616. (h) Foster. 342. (g) 3 Inst. 138. 1 Hal. P. C. 615. |