wickedly yields it obedience from being held as art and part in the legal murder, and suffering for its commission. But, on the other hand, if the error was in such a part of the proceedings as the officer intrusted with its execution has no opportunity of seeing, and is not called upon in duty to examine, and if the warrant put into his hands be fair and in ordinary form, certainly he will not be answerable for any illegality or vice in the previous and to him inscrutable proceedings1. 1798 The same distinction is applicable to the case of a soldier acting in obedience to the orders of his superior officer, with this additional circumstance in his favour, that he is not only in a much humbler station, and trained to more implicit obe- ! dience, than a legal functionary, but subjected to a peculiar and peremptory code of laws, armed with powers of extraordinary severity, for the express purpose of enforcing on his part the most implicit obedience to command. It will require, therefore, the very strongest case to subject a soldier to punishment for what he does in obedience to the distinct commands of his commanding officer. But still this privilege must have its limits; it is confined to what is commanded in the course of official duty, and which does not plainly and evidently transgress its limits. For what if an officer command a private soldier to commit murder, or to steal, or to aid him in a rape, or if he order a file of soldiers to fire on an inoffensive multitude, certainly in none of these cases will the privates be exempt from punishment if they yield obedience to such criminal mandates. Of this description was the case of William Ferguson and others, February 6. 1674, who had been sent out to poind for deficiencies in the quota of militiamen, upon the warrant of their officer alone, who had no right to give it, and who had been guilty of great excess in carrying it into execution. They were held answerable for the consequences.5 But these cases are rare, and, in general, the express command of the magistrate is considered as liberating the military officer, and that of the officer the private soldier. 3 7. The excuse of extreme distress or hunger is not admitted as a legal defence, though, when duly proved, it may be a just ground for extenuating punishment. 1 Hume, i. 54.-2 Ibid. Ibid.1 Ibid.— Ibid. The principle of our law in this respect is just and necessary, that no defence founded on alleged want or necessity can be admitted. The law of Burdensack, as it was called, did not amount to an absolute liberation from the punishment of theft, but only a mitigation of its pains. Even under this limitation, however, the law has long ago been abandoned,1 and the mitigation of the usual penalty in such cases wherein severe want has been really experienced, is left to the discretion of the judge; or, if the case be one of a capital nature, to the interposition of the royal mercy.5 Burnett, 117; Hume, i, 55.-2 Reg. Maj. iv. Act 16.3 Skene, c. 13. No. 9; Hume, i. 55.- Burnett, 117.5 Hume, i. 56. U u 2 |