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choosing one, he chooses the *least pernicious of the two. Here the will cannot be said freely to exert itself, being rather passive than active; or,
[*31 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.(n)
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, hu. mane, 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, (q) 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 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:(t) “If a thief steal to satisfy his soul when he is hungry, he shall restore *sevenfold, and 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; för 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. 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 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 undistin. guishing 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 his mind. I mean the case of the king; who, by virtue of his royal pre
*33 rogative, 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 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 bim 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,(v) to which I must refer the reader.
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 is 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.(0) 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
(6) Foster, 350.
(+) Book i. ch. 7, page 214.
() Kel. 52.
1 Where a person stood outside a house to receive goods which a confederate was stealing within it, he was held a principal, (1 Ry. & M. C. C. 96;) and in the case of privately stealing in a shop, if several are acting together, some in the shop and some out of it, and the property is stolen by the hands of one of those who are in the shop, those who are outside are equally guilty as principals, (Russ. & R. C. C. 343;) and if several combine to forge an instrument, and each executes by himself a distinct part of the forgery, and they are not together when the instrument is completed, they are nevertheless all guilty as principals. Russ. & R. C. C. 446. But where a man incites a guilty agent to commit murder, and he is neither actually nor constructively present, the perpetrator is the principal felon, and the former only an accessory before the fact. 1 Hale, 435. 3 Inst. 49. Persons not present, nor sufficiently near to give assistance, are not principals. Russ. & R. C. C. 363, 421. Mere presence is not sufficient to constitute the party a principal, without he aids, assists
, and abets. Thus, if two are fighting, and a third comes by and looks on, but assists neither, he is not guilty if homicide ensue, (1 Hale, 439. 2 Hawk. c. 29, s. 10;) but if several come with intent to do mischief, though only one does it, all the rest are principals in the second degree. 1 Hale, 440. 2 Hawk. c. 29, s. 8. So, if one present conimand another to kill a third, both the agent and contriyer are guilty. Id.; and see 1 Hale, 442, 443, 44+. 2 Hawk. c. 29, s. 8. In a late singular case it was held that if a man encourage a woman to murder herself, and is present abetting her while she does so, such person is guilty of murder as a principal; and that if two encourage each other to murder themselves together, and one does so, but the other fails in the attempt upon himself, he is a principal in the murder of the other ; but if it be uncertain whether the deceased really killed herself, or whether she came to her death by accident before the moment when she meant to destroy herself, it will not be murder in either. Russ. & R. C. C. 523.
Besides presence and aiding and abetting the principal, there must be a participation in the felonious design, or at least the offence must be within the compass of the original intention to constitute a principal in the second degree. Thus, if a master assaults another with malice prepense, and the servant, being ignorant of his master's malignant design, takes part with hin, the servant is not an abettor of murder, but manslaughter only. See 1 Hale, 446. Russ. & R. C. C. 99. And in order to render persons liable as ignorant of its po sonous 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
[*35 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 presupposing 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 its performance, but is 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 prin cipals, 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.(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, there can be no accessories before the fact; since the *very advice and abet
[*36 ment 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, queen, 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 inay 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.() So too in petit larceny, and in
i 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,
() Foster, 349.
i Hal. P. C. 617. 2 Hawk. P. C. 315.
(a) Foster, 342.
principals in the second degree, the killing or other act must be in pursuance of some original unlawful purpose, and not collateral to it. 1 East, P. C. 358.
The punishment of principals in the second degree is in general the same as principals in the first degree. 1 Leach, 64. .4 Burr. 2076. But where the act is necessarily personal, as in stealing privately from the person, he whose hand took the property can alone he guilty, under the statute, and aiders and abettors are only principals in a simple larceny. 1 Hale, 529. So, on an indictment on the statute against stabbing, only the party who actually stabs is ousted of clergy. 1 Jac. I. c. 8. 1 East, P. C. 348, 350. 1 Hale, 468.
Principals in the second degree may be arraigned and tried before the principal in the first degree has been outlawed or found guilty. 1 Hale, 437. 4 Burr. 2076. 2 Hale, 223. 9 Co. 67.--Cutty.
* This seems to apply merely to felonies, where, by the law, judgment of death ought regularly to ensue. 1 Hale, 618. 1 Burn, 5. The crime of petit treason is now abo. lished. Cutty.
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 misdemeanours. 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 bervant 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 com. niitted, 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 princi
pal and A. is accessory in the murder. And this holds even though the party killed be not in rerum naturâ at the time of the advice given. As if A., the reputed father, advises B., the mother of a bastard child unborn, to strangle it when born, and she does so; A. is accessory to this murder.(0) And it is also settled(p) that whoever procureth a felony to be committed, though it be by the intervention of a third person, is an accessory before the fact. It is likewise a rule, that he who in any wise commands or counsels another to commit an unlawful act is accessory to all that ensues upon that unlawful act; but is not accessory to any act distinct from the other. As if A. commands B. to beat C., and B. beats him so that be dies : B. is guilty of murder as principal, and A. as accessory. But if A. commands B. to burn C.'s house, and he, in so doing, commits a robbery; now A., though accessory to the burning, is not accessory to the robbery, for that is a thing of a distinct and unconsequential nature.(9)* But if the felony committed be the same in substance with that which is commanded, and only varying in some circumstantial matters; as if, apon a command to poison Iitius, he is stabbed or shot, and dies; the commander is still accessory to the murder, for the substance of the thing commanded was the death of Titius, and the manner of its execution is a mere collateral circumstance.(r)
3. An accessory after the fact may be, where a person, knowing a felony to bave been committed, receives, relieves, comforts, or assists the felon.(s) Therefore to make an accessory ex post facto, it is in the first place requisite that he knows of the felony committed!(t); In the next place, he must receive, relieve, comfort, or assist him. And, generally, any assistance whatever given to a felon, to hinder his being apprehended, tried, or suffering punishment, makes the assistor an accessory. As furnishing him with a horse to escape his *38]
*pursuers, money or victuals to support him, a house or other shelter to conceal bim, or open force and violence to rescue or protect him.(u) So
This must be understood to have reference to a case where the command is to beat violently. 1 Hale, 442, 443, 444. 1 East, P. C. 257, 258, 259. Kel. 109, 117.-CHITTY.
* The crime must be of the same complexion, and not on a different object than that to which the agent was instigated. Thus, if A. commands B. to burn a certain house with which he is well acquainted, and he burns another, or to steal a certain horse, and he steals a different one, A. will not be liable to be indicted is accessory to the crimes committed, because, B. acting in contradiction to the commands of A., and that know. ingly, it is on his part a mere ineffectual temptation, and the specific crime he planned was never completed. Plowd. 475. Hawk. b. 2, c. 29, s. 18. 1 Hale, 617. Coin. Dig. Justices, T. 1 Fost. 360.-Cutty. 6 He must know that the felon is guilty; and it seems to be the better opinion that an
notice is not sufficient. 1 Hale, 323, 622.-Cutty.
likewise to convey instruments to a felon to enable him to break gaol, or to bribe the gaoler to let him escape, makes a man an accessory to the felony. But to relieve a felon in gaol with clothes or other necessaries is no offence; for the crime imputable to this species of accessory is the hinderance of public justice, by assisting the felon to escape the vengeance of the law.(v) To buy or receivo stolen goods, knowing them to be stolen, falls under none of these descriptions; it was therefore at common law a mere misdemeanour, and made not the receiver accessory to the theft; because he received the goods only and not the felon :(r) but now, by the statutes 5 Anne, c. 31, and 4 Geo. I. c. 11,9 all such receivers are made accessories, (where the principal felony admits of accessories,)(x) and may be transported for fourteen years; and, in the case of receiving linen goods stolen from the bleaching-grounds, are, by statute 18 Geo. II. c. 27, declared felons without benefit of clergy. In France such receivers are punished with death; and the Gothic constitutions distinguished also three sorts of thieves," unum qui consilium daret, alterum qui contrectaret, tertium qui receptaret et occuleret; pari pænæ singulos obnoxios." (y)
The felony must be omplete at the time of the assistance given; else it makes not the assistant an accessory. As, if one wounds another mortally, and after the wound given, but before death ensues, a person assists or receives the delinquent: this does not make him accessory to the homicide; for, till death ensues, there is no felony committed.(z) But so strict is the law where a felony is actually complete, in order to do effectual justice, that the nearest relations are not suffered to aid or receive one another. If the parent assists his child, or the child the parent, if the brother receives the brother, the master his servant, or the servant his master, or even if the husband relieves his wife, who have any of them committed a *felony, the receivers become accessories ex post facto.(z) But a feme-covert cannot become an accessory by
[*39 the receipt and concealment of her husband; for she is presumed to act under his coercion, and therefore she is not bound, neither ought she, to discover her lord.(a)
4. The last point of inquiry is how accessories are to be treated, considered distinct from principals. And the general rule of the antient law (borrowed from the Gothic constitutions)(6) is this, that accessories shall suffer the same punishment as their principals : if one be liable to death the other is also fiable;(C) as, by the laws of Athens, delinquents and their abettors were to receive the same punishment.(d) Why then, it may be asked, are such elaborate distinctions made between accessories and principals, if both are to suffer the same punishment? For these reasons: 1. To distinguish the nature and denomination of crimes, that the accused may know how to defend himself when indicted; the commission of an actual robbery being quite a different accusation from that of harbouring the robber. 2. Because, though by the antient common law the rule is as before laid down, that both shall be punished alike, yet now by the statutes relating to the benefit of clergy a distinction is made be
()1 Hal. P. C. 620, 621.
(a) 3 Inst. 108. 2 Hawk. P. C. 320.
65 Anne, c. 31 is repealed by 7 Geo. IV. c. 31, as relating to this subject; and 4 Gtev. IV. c. 11, as to this offence, is repealed by 7 & 8 Geo. IV. c. 27; and now, by 7 & 8 Goo. IV. c. 29, such receivers may be indicted as accessories after the fact, or for a substantive felony; and, in the latter case, whether the principal shall or shall not have been previously convicted, or shall not be amenable to justice, and are liable to transportation or imprisonment.-Cutty.
But now, by stat. 7 & 8 Geo. IV. c. 29, s. 54, the receiver of stolen goods may be indicted either as accessory after the fact or for a substantive felony, and is liable to penal servitude (16 & 17 Vict. c. 99) or imprisonment.-STEWART.
* By 7 & 8 Geo. IV. c. 29, s. 16, this offence is punishable by transportation for lise, for any term not less than seven years, or by imprisonment rot exceeding four years, with public or private whippings for male offenders.—Cutty.