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And, thirdly, wbere a man has his choice of two evils set before him, and, being under a necessity of choosing one, he chooses the least peruicious of the two.
15. What is the principal case, where constraint of a superior is allowed as an excuse ?—28, 29.
In that of the matrimonial subjection of the wife to her husband. In some cases the command or authority of the husband, either expressed or implied, will privilege the wife from punishment, even for capital offences. And therefore if a woman commit theft, burglary, or other civil offences against the laws of society, by the coercion 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. Which doctrine is at least a thousand years old in the kingdom, being to be found among the laws of king Ina, the West Saxon. 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 freeman only was punished, the female or slave dismissed.
16. Why, in treason, shall no plea of coverture or presumption of the husband's coercion, extenuate the offense of the wife ?—29.
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 state, has no right to that obedience from a wife, which he himself, as a subject, has forgotten to pay.
17. For what offense may a wife be indicted, and set in the pillory, with her husband ?-29.
For keeping a brothel ; for this is an offense touching the domestic economy or government of the house, in which the wife has a principal share ; and is also such an offense as the law presumes to be generally conducted by the intrigues of the female
18. When the wife offends alone, horo far is she responsible for her offense ?—29.
In all cases where she offends alone, without the company or coercion of her husband, she is responsible for her offense as much as any feme sole.
19. If a man be violently assaulted, and hath no other possible means of escaping death but by killing an innocent person, may he kill that person ?-30.
No; the fear and force shall not acquit him of murder ; for he ought rather to die himself, than escape by the murder of an innocent man.
20. When a man, by the commandment of the lar, is bound to arrest another for any capital offense, or to disperse a riot, and resistance is made to his authority, may he kill the offenders ?-31.
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.
21. May a man, in extreme want of food or clothing, justify steal ing either, to relieve his present necessities 2–31, 32.
The law admits no such excuse.
22. In whom does the lar suppose an incapacity of doing wrong, from the excellence and perfection of the person ?-32, 33.
In the king.
OF PRINCIPALS AND ACCESSARIES.
1. What are the degrees of guilt among persons that are capable of offending 2—34.
They may offend as principals, or as accessaries.
2. In what degrees may a man be principal in an offense ?—34.
In two degrees : a principal in the first degree is he that is the actor, or absolute perpetrator of the crime ; and a principal in the second degree is he who is present, aiding and abetting the act to be done.
3. Must this presence of the principal in the second degree be an actual immediate standing by, within sight or hearing of the fact ! -34.
It need not ; there may be a constructive presence. 4. In cases of murder, committed in the absence of the murderer, by means which he had prepared beforehand, in what degree as principal is he guilty ?-34, 35.
He is guilty as principal in the first degree.
5. What reason does the law assign for this ?—35.
That, in the case of preparing poison or 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, the party offending cannot be called an accessary, 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 accessary, and cannot be so as accessary, it follows that he must be guilty 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. 6. Who is an accessary ?—35.
An accessary is he who is not the chief actor in the offense, nor present at its performance, but is some way concerned therein, either before or after the fact committed.
7. Why are all principals in high treason?—35.
Upon account of the heinousness of the crime.
8. In what crimes may there be accessaries —36.
In petit treason, murder, and felonies, with or without the benefit of clergy ; except only in those offenses which, by judgment of law, are sudden and unpremeditated, as manslaughter, and the like, which therefore cannot have any accessaries before the fact.
9. In petit larceny, and in all crimes under the degree of felony, why are all principals ?—36.
Because the law does not descend to distinguish the different shades of guilt in petit misdemeanors.
10. If a servant instigates a stranger to kill his master, of what is he guilty ?–36.
He is accessary only to the crime of murder.
11. Who may be an accessary before the fact !-36.
Sir Matthew Hale defines him to be “one who, being absent at the time of the crime committed, doth yet procure, counsel, or command another to commit a crime.”
so that he
12. If A. command B. to beat C., and B. beats him dies, in what degree is A. guilty ?—36, 37.
He is guilty as accessary.
13. If A. command B. to burn C.'s house, and he in so doing commits a robbery, in what degree is A. guilty ?—37.
A. though accessary to the burning, is not accessary to the robbery.
14. Who is an accessary after the fact ?—37, 38.
The one who assists a felon, knowing him to be such. To make an accessary ex post facto, it is in the first place requisite that he knows of the felony committed. In the next place, he must receive, relieve, comfort, or assist the felon.
15. Is the relief of a felon, in jail, with clothes or other necessaries an offense ?–38.
It is not.
16. What if one wounds another mortally, and, after the wound given but before death ensues, a person assists or receives the delin. quent ?—38.
The latter does not become accessary to the homicide ; for, till death ensues, there is no felony committed.
17. Where a felony is actually complete, are the nearest relatives suffered to aid or receive one another 1-38, 39.
They are not. If the parent assists his child, or the child his parent; if the brother receives brother ; the master his servant, or the servant his master ; or even if the husband receives his wife, who have any of them committed a felony, the receivers become accessaries ex post facto. But a feme covert cannot become an accessary by the receipt and concealment of her husband.
18. Horo were accessaries treated, considered distinct from principals 2-39.
The general rule of the ancient law (borrowed from the Gothic constitution) is this, that accessaries shall suffer the same punishment as their principals.
19, For what reasons, then, are elaborate distinctions made betroeen accessaries and principals 2–39, 40.
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 accusation from that of harboring the robber.
2. Because, though by the ancient common law the rule is that both shall be punished alike, yet now, by the statute relating to the benefit of clergy, a distinction is made between them.
3. Because, formerly, no man could be tried as accessary til. after the principal was convicted, or, at least, he must have been tried at the same time with him ; though that law is now much altered.
4. Because, though a man be indicted as accessary and acquitted, he may afterward be indicted as principal.
20. Is an acquittal of receiving or counseling a felon, an acquittal of the felony itself!-40.
It is not.