But the principal case where this constraint of a superior is allowed as an excuse for crime is in the case of a wife; for neither a son nor a servant is excused by the command or coercion of the parent or master. If a woman commit theft, burglary, or other civil offence by the coercion of her husband -or in his company, which the law construes coercion—she is not guilty of any crime, being considered as acting by compulsion, and not of her own will. But this rule admits of exception in crimes mala in se, as murder and the like; because it would be unreasonable to screen an offender from the punishment due to natural crimes, by the refinements of civil society. And in all cases where the wife offends alone, without the company or coercion of her husband, she is responsible for her offence as much as any feme-sole.

Another species of compulsion or necessity is what the law calls duress per minas: or threats and menaces, which induce a fear of death or other bodily harm. Therefore, if a man be violently assaulted, and has no other means of escaping death, he is permitted to kill the assailant; for here the law of nature, and self-defence its primary canon, make him his own protector.

There is a third necessity, viz., when a man has his choice of two evils, and being obliged to choose one, he chooses the least pernicious of the two. Where, for instance, a man, by the command of the law, is bound to arrest another for a capital offence, and resistance is made; here it is justifiable and even necessary to wound or perhaps to kill the offender, rather than permit the murderer to escape.

There has been much speculation whether a man in extreme want of food or clothing may justify stealing either, to relieve his present necessities? But our law admits no such excuse; for sufficient provision is made for the poor by the power of the civil magistrate.

One other instance only need be added in which the law supposes an incapacity of doing wrong, from the perfection of the person; viz., in the case of the sovereign; whom the law will not suppose capable of committing a folly, much less a

crime.

CHAPTER III.

OF PRINCIPALS AND ACCESSORIES.

THE degrees of guilt among persons that are capable of offending, viz., as principal, or as accessory, vary.

I. A man may be principal in an offence in two degrees. A principal in the first degree is he that is the perpetrator of the crime; in the second degree, he is who is present, aiding and abetting the act to be done. Which presence need not be an actual standing by, within sight or hearing; but may be constructive, as when one commits a robbery or murder, and another keeps watch or guard at a convenient distance. This rule has also other exceptions: for, in case of murder by poisoning, a man may be a principal felon, by preparing the poison, or persuading another to drink it; and yet not administer it himself, nor be present when the deed of poisoning is committed,

II. An accessory is he who is not the chief actor in the offence, nor present at its performance, but is in some way concerned therein, either before or after the fact. In considering these different degrees of guilt, it will be convenient firstly, to 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 as such, and distinct from principals, are treated.

1. In high treason there are no accessories, but all are principals: the same act that makes a man accessory in felony, making him a principal in high treason, In murder and other felonies, there may be accessories: except only in those offences which are sudden and unpremeditated, as manslaughter and the like; which, therefore, cannot have any accessories before the fact. So too in misdemeanors and all crimes under felony, there are no accessories either before or after the fact; but all persons concerned, if guilty at all, are principals.

2. An accessory before the fact, is one, who being absent at

the time of the crime committed, doth yet procure, counsel, or command another to commit a crime. Herein absence is necessary to make him an accessory; for if such procurer be present, he is a principal. If A advises B to kill another, and B does it in the absence of A, B is principal, and A is accessory in the murder. And whoever procures a felony to be committed, though it be by the intervention of a third person, is an accessory before the fact.

3. An accessory after the fact may be where a person, knowing a felony to have been committed, receives, relieves, comforts, or assists the felon. Therefore, to make an accessory ex post facto, it is, firstly, requisite that he knows of the felony committed; and, secondly, he must receive, relieve, comfort, or assist him. Any assistance whatever given to a felon, to hinder his being apprehended, tried, or suffering punishment, makes the assistor an accessory. To convey instruments to a felon to enable him to break gaol, makes a man an accessory to the felony. But to relieve a felon in gaol with necessaries is no offence; for the crime imputable to this kind of accessory is the hindrance of public justice, by assisting the felon to escape. To buy or receive stolen goods, knowing them to be stolen, is at common law a misdemeanor, and made not the receiver an accessory, because he received the goods only, and not the felon. By statute all such receivers are now accessories and felons; and may be indicted either as accessories after the fact, or for a substantive felony.

The felony must be complete at the time of the assistance given, else it makes not the assistant an accessory. As if one wounds another mortally, and a person assists the delinquent before death ensues, this does not make him an accessory; for, till death ensues, there is no felony committed. But where a felony is complete, the nearest relations may not aid or receive one another. If the parent assists his child, or the child his 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. But a feme-covert cannot become an accessory by the receipt and concealment of her husband; for she is presumed to act under his coercion.

4. The rule of the ancient law was that accessories should suffer the same punishment as the principal. But this is now altered as to accessories after the fact, whose offence is obviously of a lower degree of guilt to that of the principal, as tending chiefly to evade public justice. Accessories before the fact may be indicted and punished in all respects like the principal.

CHAPTER IV.

OF OFFENCES AGAINST GOD AND RELIGION.

HUMAN laws, as has been already pointed out, 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 ought, therefore, to be estimated merely according to the mischief which they produce in society; and consequently private vices or the breach of absolute duties, cannot be the object of any municipal law, any further than as by their evil example, or other pernicious effects, they prejudice the community, and thereby become public crimes. Drunkenness, if committed privately, is beyond the knowledge, and, of course, beyond the reach of human tribunals; but if committed publicly, its evil example makes it liable to temporal censures.

On the other hand, there are some misdemeanors, not in themselves criminal, which are unlawful by the positive constitutions of the state, such as poaching, smuggling, and the like. These are naturally no offences at all; their criminality consists in their disobedience to the supreme power, which has the right of making some things unlawful which are in themselves indifferent. Considering, therefore, all offences as deriving their particular guilt from the law of man, the several offences punishable by our laws may be distributed under the following heads: firstly, those which are injurious to religion; secondly, such as violate the laws of nations; thirdly, such as affect the executive power of the state; fourthly, such as infringe the rights of the public or commonwealth; and, lastly, such as derogate from the rights and duties of individuals.

I. Of offences against religion, the first is apostasy; or a total

renunciation of Christianity, by embracing either a false religion, or no religion at all. This offence is within the cognizance only of the ecclesiastical courts, which correct the offender pro salute animæ,

II. A second offence is heresy; which consists not in a total denial of Christianity, but of some of its essential doctrines, publicly and obstinately avowed. The doctrines which are to be considered heresy are left to the determination of the ecclesiastical judge; and what ought to have alleviated the punishment, the uncertainty of the crime, seems in the early Christian centuries rather to have enhanced it. For to the blind zeal of the age only, can be attributed the capital punishments inflicted on the Donatists and Manichæans by the emperors Theodosius and Justinian; and the constitution of the emperor Frederic, adjudging all persons to be burnt with fire, who were convicted of heresy by the ecclesiastical judge. The same

emperor, indeed, ordained that if any temporal lord, when admonished by the church, should neglect to clear his territories of heretics within a year, it should be lawful to seize and occupy the lands, and utterly to exterminate the heretical possessors. And upon this foundation was built that arbitrary power, so long claimed and so fatally exerted by the Roman Curia, of disposing even of the kingdoms of refractory princes to more dutiful sons of the church.

It is not to be expected that our island should be free from the persecutions which deformed Christianity; and we find, accordingly, among our ancient precedents a writ de hæretico comburendo, which is thought to be as old as the common law itself. A conviction could not be had, however, in any ecclesiastical court, but only before the archbishop himself in a provincial synod; till in the reign of Henry IV., the clergy obtained an act of parliament, which sharpened the edge of persecution by enabling the diocesan alone to convict of heretical tenets; and unless the convict abjured his opinions, the sheriff was bound ex officio, if required by the bishop, to commit the unhappy victim to the flames. The power of the ecclesiastics was afterwards somewhat moderated; the statute 25 Hen. VIII. c. 14, declaring that offences against the see of Rome are not heresy; and the ordinary being thereby restrained from pro