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As we 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 wise from punishment, even for capital offences. And therefore if a woman commit thesi, burglary, or other civil offences against the laws of society, by the coer. cion 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 Xc) (10). Which doctrine is at least

a thousand years old in this kingdom, being to be found among the [ *29] laws of king "Ina, the West Saxon (d). And it appears that

among the northern 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 free. man 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 (11): not only because these are of a deeper dye, but also, since in a state of nature no one is in sub, jection 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 community by rebellion against the stale, 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 wise may be indicted and set in the pillory with her busband, 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) (12).

And in all cases,

(6) 1 Hawk. P. C. 3.
(c) 1 Hal. P. C. 45.
(d) cap. 57.

(el Stiernh. de jure Sucon. 1. 2, c. 4.
(S) I Hal. P. C. 47.
(g) I Hawk. P. C. 2. 3.

(10) The husband, however, must be pre- (11) The law seems to protect the wife in sent when the offence is committed, or the all felonies committed by her in company with presumption of coercion by him does not arise. her husband, except murder and manslaughker . Morris, R. and R. C. C. 270. The ter. Hal. P. C. 47. wife is not treated as an accessary to a selony (12) In all misdemeanors it appears that the for receiving her husband who has been guilty wise may be found guilty with the husband. of it, though, on the contrary, it appears the li is said, the reason why she was excused in husband would be for receiving his wise. H. burglary, larceny, &c. was because she could P. C. vol. 1, $ 10, 1 Hale, 44. And if an of. not tell what property the husband might claim 'ence be committed by the wife alone, without in the goods. io Mod. 63. & 335. But the

he husband's concurrence, she may be pu- better reason seems to be, that boy the ancient Bished by way of indictment, without him. Id. law the husband had the benefit of the clergy, nd see Moor, 813

if he could read, but in no case could women

where the wise 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 [ 30 ] calls 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 huinan 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 timiduin et reticulosum,” as Bracton expresses it (8), 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)(13.) 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 hie 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 pernicions of the two. Here the will cannot be said freely [*31 ] to exert itself, being rather passive than active; or, if active, it is rather in rejecting the greate evil than in choosing the less. Or this sort is that necessity, where a man by the commandment of the law is bound io 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 (14). 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 in 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 (?), 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 admiting ng 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 inoommodum ferendum est, potius quam de alterius commodis delrahendurn;" but also to the Jewish law, as certified by king

(h) See book. I. p. 131.
(i) I. 2, S. 16.
(k) Ff. 4. 2.5 & 6.

(1) 1 Hal. P. C. 50.
(m) 1 Hal. P. C. 51.
(n) i Hal. P. C. 52.

have that benefit ; it would therefore have The only force that doth excuse, is a force been an odious proceeding to have executed upon the person, and present fear of death ; the wise, and to have dismissed the husband and this force and fear must continue all the with a slight punishment: to avoid this, it was time the party remains with the rebels. It is thonght better that in such cases she should incumbent upon men, who make force their be altogether acquitted ; but this reason did defence, lo shew an actual force, and that they not apply to misdemeanors.

joined pro timore mortis, et recesserunt quàm cito (13) The fear of having houses burnt, or potuerunt. Fost. 14. 216. goods spoiled, is no excuse in the eye of the (14) See 2 R. S. 660. law, for joining and marching with rebels..

Solomon himself (1): “if a thief steal to satisfy his soul when he [*32 ] is hungry, he shall restore *seven-fold, and shall give all the sub

stance 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. 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 democrati cal; 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 excel [*33) lence 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 prerogative, is not under the coercivo power of the law (u); which will not suppose him capable of committing a folly, much less a crime (15). We are theresore, out of reverence and decen

(0) de jure b. & p. 1. 2, c. 2.
ip) L. of Nat. and N. 1.2, c. 6.
(9) Britton. c. 10. Mirr. c. 4, 16.
() I Hal. P. C. 34.

(s) de off. I. 3. c. 5.
(0) Prov. vi. 30.
(w) I Hal. P. C. 44.

(15) In the U. S. the highest officer has no such exemplion.

cy, to forbear any idle inquiries, of what would be the consequence is the king were to act thus and thus : since the law deems so highly of bis wis. dom 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 (v), to which I must refer the reader.



It having been shewn in the preceding chapter what persons are, or aro not, upon account of their situation and circumstances, capable of comamitring crimes, we are next to make a few remarks on the different degrees of guilt among persons that are capable of oflending; viz, as principat, and as accessary.

T. 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 (b) (2). (v) Book I. ch. 7. page 244.

(0) Foster, 350. (a) I Hal. P. C. 615.

(1) See in general, 1 Chitty Crim. L. 255 to Hale, 439. 2 Hawk. c. 29. s. 10; but if seve275. 3 ed. id. index, tit. Accessaries, and tit. mal come with intent to do mischief, though Principals.

only one does it, all the rest are principals in (2) Where a person stood outside a house, the second degree. 1 Hale, 440. 2 Hawk. c. to receive goods which a confederate was 29. s. 8. So, if one present command another stealing within it, he was held a principal, i to kill a third, both the agent and contriver are Ry. & M. C. C. 96 ; and in the case of pri- guilty. Id.; and see i Hale, 442, 3, 4. ? vately stealing in a shop, if several are acting Hawk. c. 29. s. 8. In a late singular case it together, some in the shop and some out of it, was held, that if a man encourage a woman and the property is stolen by the hands of one to murder herself, and is present abetting her of those who are in the shop, those who are while she does so, such person is guilty of outside are equally, guilty as principals, Russ. murder as a principal; and that if iwo en. & R. C. C. 343; and il several combine to courage each other to murder themselves to forge an instrument, and each executes by gether, and one does so, but the other fails in kimself a distinct part of the forgery, and they the attempt upon himself, he is a principal in are not together when the instrument is com- the murder of the other ; but if it be uncertain pleted, they are nevertheless all guilty as whether the deceased really killed herself, or principals. Russ. & R. C. C. 446. But whether she came to her death by accident be. where a man incites a guilty agent to commit fore the moment when she meant to destroy murder, and he is neither actually nor con- herself, it will not be murder in either. Ross. structively present, the perpetrator is the prin. & R. C. C. 523. cipal felon, and the former only an accessary Besides presence, and aiding and abelting before the fact. i Hale, 435. 3 Inst. 49. the principal, there must be a participation in Persons not present nor sufficiently near to the felonicus design, or at least the offence must give assistance, are not principals. Russ. & be within the compass of the original inten. R. C. C. 363. 421.

tion, to constituie a principal in the second Mere presence is not sufficient to constitute degree. Thus, if a master assaults another the party a principal, without he aids, assists, with malice prepense, and the servant being and abels. Thus if two are fighting and a ignorant of his master's malignant design, third comes by and looks on, but assists nei. takes part with him, the servant is not an abete cher, he is not guilty if homicide ensue, I tor oʻ'murder but manslaughter only. See 1

And this rule hath also other exceptions : for, in case of murder by poisoning, a man may be a principal selon by preparing and laying the poison, or persuading another to drink it (c) who is ignorant of its 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 (e).

And the same reasoning will hold, with regard to other murders ( *35] 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 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 accessary, 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 accessary, and cannot be so as accessary, it follows that he must be guilty as princis pal, 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 (s).

II. An accessary 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 accessaries, and what not: secondly, who may be an accessary before the fact : thirdly, who may be an accessary after it; and, lastly, how accessaries, considered merely as such, and distinct from principals, are to be treated.

1. And, first, as to what offences admit of accessaries, and what not. In high treason there are no accessaries, but all are principals : the same acts, that make a man accessary 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 ireason 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 with

out an intention to have it done, there can be no accessaries before [ 36 ] the fact; since the very advice and abetment amount to principai

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).

( 1 Hal. P. C.017. 2 Haw. P. C. 315.


(c) Kel. 52.
( Foster, 349.

3 Inst. 138.

(g) 3 Inst. 138. 1 Hal. P. C. 613.
(h) Foster, 342.

Hale, 446. Russ. & R. C. C. 99. And in guilty, under the statute, and aiders and abet order to render persons liable as principals in ters are only principals in a simple larceny. the second degree, the killing or other act 1 Hale, 5:29. So on an indictmeni on the sta. must be in pursuance of some original unlaw. tute against stabbing, only the pariy who acful purpose, and not collateral to it. i East, tually stabs is ousted of clergy. í Jac. I. c. P.C. 358.

8. i East, P. C. 348. 350. T Hale, 468. The punishment of principals in the second Principals, in the second degree, may be degree, is in general the same as principals arraigned and tried, before the principal in the in the first degree. | Leach, 64. 4 Burr. first degree has been outlawed or found guilty, 2076. But where the act is necessarily per. 1 Hale, 437. 4 Burr, 2076.2 Hale, 223. sonul, as in stealing privately froin the person, Co. 67. he whose hand wok the property can alone be

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