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[is, by the way, the strongest instance put by Baron Puffendorf, and whereon he builds his principal arguments; which, however they may hold elsewhere, 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 sovereign, on the representation of the ministers of justice, hath a power to soften the law, and to extend mercy in cases of peculiar hardship: an advantage which is wanted 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.

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 the mind. It is the case of the sovereign, who by virtue of the 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 (h). We are, therefore, out of reverence and decency, to forbear any idle inquiries of what would be the consequence if the sovereign 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

() i Hale, P. C. 44.

[station and dignity; and, therefore, has made no provision to remedy such a grievance. But of this sufficient was said in a former division of this work, to which we must refer the reader (i).]

(i) Vide sup. bk. iv. pt. I. C. VI.

CHAPTER III.

OF PRINCIPALS AND ACCESSORIES.

[It 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 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 (). 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 its poisonous quality, or giving it to him for that purpose (c);

(a) 1 Hale, P. C. 615. See R. v. Howell, 9 Car. & P. 437.

(6) Foster, 350. In the case of rape, if the prisoner was present aiding and abetting, he may in the indictment be charged as principal either in the first or the second

degree. (R. v. Crisham, 1 Car. & M. 187.) A principal in the second degree in larceny, cannot be convicted as a receiver. (Queen v. Perkins, 21 L. J. (M. C.) 152.)

(c) Kel. 52; Foster, 349.

[and yet not administer it himself, nor be present when the very deed of poisoning is committed (d); 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 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 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 so 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(e).] It is to be observed, however, that though the law makes the distinction between principals in the first and in the second degree, yet in general the punishment inflicted upon either class of offenders is the same (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

(d) 3 Inst. 138; 1 Hale, P. C. 616; Hawk. P. C. b. 2, c. 29, s 11.

(e) 1 Hale, P. C. 617; Hawk.

lowing enactments: 24 & 25 Vict. c. 96, s. 98; c. 97, s. 56; c. 98, 8. 49; c. 99, s. 35; c. 100, s. 67; in reference to the felonies punishable under those Acts respectively.

ubi sup.

(1) See, in particular, the fol

crown.

[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 treason there are no accessories, but all are principals: the same acts that make a man accessory in felony, making him a principal in treason, upon account of the heinousness of the crime (9). Besides, it is to be considered, that the bare intent to commit treason is many times actual treason : as imagining the death of the sovereign, or conspiring to take away his

And as no one can advise or 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. In murder or other felonies, 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 (h). So, too, 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 (i); the same rule thus holding with regard to the highest and lowest offences, though upon different reasons. In treason all are principals, propter odium delicti; in misdemeanors all are principals, because the law, which de minimis non curat, does not descend to distinguish the different shades of guilt in crimes below the degree of felony.

2. As to the second point, who may be an accessory before the fact: Sir Matthew Hale defines him to be one

(9) 3 Inst. 138; 1 Hale, P. C. 613. As to the crime of treason, vide post, c. VI.

(h) 1 Hale, P. C. pp. 615, 616; Evans' case, Foster, 73. But see Reg. v. Gaylor, 1 D. & B. (C. C.) 288.

(i) Hale, ubi sup. ; see Moland's case, 2 Moody, C. C. R. 276; Queen

v. Greenwood, 21 L.J. (M. C.) 127. In accordance with this rule, the 24 & 25 Vict. c. 94, s. 8, declares that “ whosoever shall aid, abet, counsel,

or procure the commission of any “ misdemeanor, shall be liable to be “ indicted, tried and punished as a

principal offender.”

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