command of the husband will privilege the wife from punishment, even for a capital offence. If a wife commit theft or other crime in her husband's company, the law construes his presence as a coercion, and she is not deemed guilty of a crime, being not considered as acting by her own will. Among the northern nations, this privilege extended to any woman transgressing in concert with a man; the male alone was punished, the female was dismissed.

Exceptions. Mala in se. This rule admits of an exception as to wives, in crimes that are mala in se, and prohibited by the law of nature, as murder and the like, inasmuch as in a state of nature, no one is in subjection to another. So in treason, no plea of coverture shall excuse the wife; no presumption of the husband's coercion shall extenuate her guilt. In inferior misdemeanors, an exception also exists, that a wife may be indicted with her husband for keeping a brothel, as this is an offence touching the government of the house, and is an act, as a rule, conducted by females. In all cases, where the wife offends alone, without the company or coercion of her husband, she is responsible for her offence, as if she were a feme sole.

2. Duress per Minas. This species of compulsion is by threats or menaces, which induce a fear of death or bodily harm, and for that reason take away the guilt of many crimes, at least before a human tribunal. The fear which compels a man to do an unwarrantable action ought to be well grounded. This holds as to positive crimes, so created by the laws of society, but not as to natural offenses, so declared by divine law.

3. Choice Between two Evils. This species of necessity is the result of reason and reflection, and obliges a man to do an act, which, without such obligation, would be criminal. This occurs, when a man has his choice of two evils set before him, and chooses the less pernicious one. He rejects the greater evil. and chooses the less. As where a man is bound to arrest another for a capital offence, and being resisted, kills the offender, rather than permit him to escape.

4. Theft from Necessity. It has been a disputed point, whether a man in extreme want of food or clothing is justified in stealing to relieve his present necessities. Grotius and Puffendorf, together with many foreign jurists, hold in the affirmative, maintaining by many plausible reasons, that in such cases, the community of goods revived, Yet it is an unwarranted doctrine

and is now antiquated; the law of England admitting no such excuse. King Solomon says: "If a thief steals to satisfy his soul when he is hungry, he shall restore seven-fold; he shall give all the substance of his house." Men's properties would be insecure, if liable to be invaded to supply the wants of others, of which wants no man can be an adequate judge, but the party who pleads them.

VII. The King can do no Wrong. This arises from the excellence and perfection of his royal person. He is not under the coercive power of the law, and is deemed incapable of committing a folly or a wrong.

CHAPTER III. PRINCIPALS AND ACCESSORIES.

I. A Principal. A man may be a principal in an offence in two degrees. In the first degree, he is the actor, the perpetrator of a crime; in the second degree, he is present, aiding and abetting the act to be done. The presence may be a constructive rather than an actual one, as when one commits a robbery, and another keeps watch at a convenient distance. In case of murder by poisoning, a man may be a principal, by preparing and laying the poison or persuading another to drink it, who is ignorant of its quality; and yet not administer it himself, nor be present when it is taken. Such a party cannot be termed an accessory, otherwise there would be no principal. He is guilty as principal in the first degree.

II. An Accessory. Such a one is not the chief actor in the offence nor present at its performance, but in some way concerned therein, either before or after the act. We will inquire what offences admit of accessories; who may be an accessory before the fact; who may be an accessory after the fact; and lastly how accessories, distinct from principals, are to be treated.

1. What Offences admit of Accessories. In high treason, there are no accessories, but all are principals, on account of the heinousness of the crime. The bare intent to commit treason is in many instances actual treason. This will not hold in the inferior species of treason, which do not amount to the idea of compassing the death of the king. In petit treason, murder

and felonies, there may be accessories, except only in those offences, which are unpremeditated, as manslaughter, in which there can be no accessories before the fact. In petit larceny, and in all crimes under the degree of felony, there are no accessories either before or after the act, but persons concerned therein, if guilty at all, are principals. In trespass, all are principals, because the law does not descend to distinguish the different shades of guilt in petty misdemeanors. An accessory cannot be guilty of a higher crime than his principal.

2. Who may be an Accessory before the Fact. This is one, who being absent at the time of the commission of the crime, does yet procure, counsel or command another to commit a crime. Absence is necessary to make him an accessory, for if he be present, he is guilty of the crime as principal. 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 act, but he is not accessory to any act distinct from the other. Thus if A command or advise B to burn C's house, and he, in so doing, commit 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. But if the felony committed be the same in substance with that which is commanded, and only varying in circumstantial, matters, as if upon a command to poison B, he should be stabbed or shot by A, the commander is accessory to the murder, the manner of the execution of the order being merely collateral.

3. Accessory after the Fact. This may be, where a person, knowing a felony to have been committed, receives or assists the felon. Any assistance whatever given to a felon, to prevent his being apprehended and punished, makes the assistor an accessory. As furnishing him with a horse to escape, money or food to support him, a house or other shelter to conceal him, or open force to protect him. But to relieve a felon in jail with clothes or other necessaries, is no offence, for this is not helping him to escape the vengeance of the law. All receivers of stolen goods, with knowledge of facts, are now accessories to the theft, though formerly they were not considered so. The felony must be complete at the time the assistance was given. To do effectual justice, the nearest relations are not permitted to aid or receive one another, if it will tend to prevent an arrest. Otherwise such parties become accessories ex post facto. But a wife

cannot become such accessory by the concealment of her husband, for she is presumed to act under his coercion, and hence is not bound to make known the place of his hiding.

4. How Accessories are Punished. By the ancient law, borrowed from the Gothic constitutions, accessories suffered the same punishment as the principals. If one was liable to death, so was the other. This was the law in Athens. The reasons of the present distinctions between accessories and principles are: (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 crime from that of harboring the robber. (2) Because, though by the ancient law, both were punished alike, yet now, by the statutes relating to the benefit of clergy, a distinction is made between them; accessories after the fact being allowed the benefit of clergy in all cases, except horse stealing and stealing of linen from bleaching grounds, which is denied to the principals and to accessories before the fact, the latter to be treated with a little less severity than the former. This may prevent the perpetration of many crimes, by increasing the difficulty of finding a person to execute the deed itself, as his danger would be greater than his accomplices, by reason of the difference of the punishment. (3) Because formerly no accessory could be tried, until his principal was convicted, or at least he must have been tried at the same time, though that law is now much altered. (4) Because, though a man may be indicted as accessory and acquitted, he may afterwards be indicted as principal; for an acquittal of receiving and counselling a felon, is no acquittal of the felony itself, but it is doubtful, if a man be acquitted as principal, whether he can afterwards be indicted as accessory before the fact, since the offences are so nearly allied; an acquittal of the one may be an acquittal of the other. The punishment is nearly the same for principals and for accessories before the fact.

CHAPTER IV.-OFFENCES AGAINST GOD AND RELIGION.

PREAMBLE.

Distinction between Private and Public Vices. Human laws can have no concern with any but social and relative duties, being intended only to regulate the conduct of man, as a member

of society. All crimes, therefore, ought to be estimated merely according to the mischiefs which they produce in civil society; and private vices, or breach of mere absolute duties, which man as an individual is bound to perform, are not the object of any municipal law, any further than as by their evil example they may prejudice the community, and become a species of public crimes. Thus the vice of drunkenness, if committed privately, is beyond the reach of human tribunals, but if committed publicly, is liable to temporal censure. The vice of lying is not taken notice of by our law, unless it carries with it some public inconvenience, as spreading false news, or some social injury, as slander, for which a private recompense is given. Both public and private vices are subjects of eternal justice, but public vices alone are liable to temporal punishments.

Mala Prohibita Only. On the other hand, there are some misdemeanors which are punished by municipal law, that have in themselves nothing criminal, but are made unlawful by reason of public convenience, such as poaching and the like. Naturally these are not crimes, but their criminality consists in their disobedience to the supreme power, which has an undoubted right, for the peace of the community, to make some things unlawful, which are in themselves indifferent.

Division of Offences. The offences which are injurious to civil society, and therefore punishable by our laws, may be divided thus:

1. Those which are more immediately injurious to God and religion.

2. Such as violate or transgress the law of nations.

3. Such as especially affect the executive power of the state, or the king and his government.

4. Such as more directly infringe the rights of the public.

5. Such as derogate from those rights and duties, which are owing to particular individuals, in the preservation of which the community is interested.

OFFENCES AGAINST GOD AND RELIGION.

Defined. These are crimes which more immediately offend God, by openly transgressing the precepts of religion, either natural or revealed, and mediately, by their bad example and consequence, the law of society also, which renders them amenable to censure.