justify every species of crimes it extends only to thofe which are created by the pofitive laws of fociety: and acts which are criminal by the laws of nature, cannot be justified on this principle. Thus, if a man has no other way to fave himself, than by killing an innocent perfon, he will not be justified in doing it but ought rather to fuffer, himfelf. He would be permitted to kill an affailant, as has been obferved. : The only inftance, in which the civil fubjection that one perfon owes to another, will excufe from a crime, is in the cafe of husband and wife: for a fon, or fervant are never excufed on account of the commands of the father or after. But fuch is the fubjection, that a wife owes to her husband, that when she breaks the laws of fociety, by the coercion, command, or in the company of her husband, fhe is not deemed guilty of any crime, becaufe fhe is fuppofed to have no will: but in respect of crimes, which are bad in themselves and prohibited by the law of nature, as murder, fhe fhall not be excufed. But in all cafes where the wife offends alone, without the company or coercion of her hufband, fhe is punishable for the crimes the commits. a In the case of drunkenness or intoxication, tho a man is thereby deprived of his reafon, yet this circumstance is fo far from extenuating, that it rather aggravates the guilt of the offence and a man, when he is fober, fhall be refponfible for his conduct, when in a ftate of ebriety. b CHAPTER SEVENTEENTH. OF PRINCIPAL AND ACCESSARY. IN treating of principal and acceffary, we obferve that a man may be principal in an offence in two degrees: in the firft, he is the actor and perpetrator: in the fecond, he is prefent, aiding and abetting. This prefence, need not always be an actual standing by, within fight or hearing: for if one commit a robbery or murder, and another keep watch at a convenient distance, both are principals in the crime actually perpetrated. So a man need not be prefent at the death of a perfon, whom he murders by poi. foning Foft. 315. 1 Hal. P. C. 615. 4 Black. Com. 28 ☐ 1 Inft. 247. foning, laying a trap or pitfall, or turning out a wild beast, with an intent to do mifchief. An acceffary, is the perfon who is not the chief actor, nor prefent when the crime was conumitted, but in fome way concerned in it, either before or after. An acceflary before the fact, is he who counfels, procures, or commands the crime to be committed, but is not prefent when the act is done: and the procuring may be by the intervention of a third perfon. To counfel or command another to commit a crime, renders one accessory to all that enfues upon that unlawful act but not to any other diftinct act. If one commands another to kill a third perfon, and he commits a robbery, the perfon commanding the murder, is not acceflory to the robbery but if he commands the killing to be done in a particular manner, and it is done in a different, he is an acceflary to the fact, because it is fubftantially the fame crime. : An acceflary after the fact is, where a perfon knowing the crime to be committed, receives, relieves, comforts, or affifts the criminal. Any affittance to prevent his being apprehended, tried or punished, makes a perfon an acceffary. As furnishing a horfe to escape his purfers, money, food, or any fhelter to conceal him : or by open force or violence, to rescue or protect him, to convey inftruments to him, to enable him to break goal, or to bribe the goaler to let him efcape: but merely to relieve him by clothes or other neceffaries in goal is no offence; because the crime confiits in doing fome act to prevent the criminal from being brought to juftice. The crime must be complete when the affittance is given. Thus if one wounds another, and before his death, a perfon receives him, he is not acceffory to the crime. But where the crime is compleated, no relationship will justify the receiving of the offender, knowing the crime to have been committed, except it be a wife, who may receive and conceal her hulband, because the is prefumed to act under his coercion. But a husband may not receive his wife, a parent his child, a mafter his fervant, and fo of every oth. er connection. This rule of the common law, feem to bear hard upon fome of the degrees of relation. It would be cruel to oblige the father, to refute to admit the fon into his houfe, or to be come 4 Black. Com. 33 H. P. C. 618. come his accufer, when he had committed a crime which he ab. horred from his heart. It is provided by ftatute in the cafe of theft that a man shall be excufed from making known the crime, if committed by any of his family. But where the feelings of affection do not impel a perfon to befriend a criminal, this law ought to be executed with the utmoft rigor, and it would be a great check upon the commiffion of crimes, to convince every body, that the receiving, aiding, and concealing a criminal knowingly, subjected them to the fame punishment as the criminal. In treafon there can be no acceffaries, but all are principals. In manslaughter there can be no acceffaries before the fact, becanfe the crime is committed fuddenly, without provecation. In all crimes of the lowest Kind there can be no acceffiries, neither can there be in trefpafis, but all who are in any measure guilty, fhail be deemed principals: Lecaufe the law will not defcend to diftinguifh the different degrees of guilt in the loweft crimes. Acceffaries are punished in the fame manner as principals, and the reafon of making the diftinction, is for the purpofe of afcertaining the nature and denomination of crimes: that the accufed may better know how to make their defence, and because no perfon can be tried, as acceffry till the principel is convicted, or at leaft must be tried with him. A perlou indicted as accefliry and acquitted, may afterwards be indicted as principal, and a perfon acquitted as principal, may be indicted as acceflary after the fact. By ftatute, in the cales of theft, the concealer of the fact, and the receiver of flolen goods, may be proceeded against as principal, tho the principal be not convicted. CHAPTER EIGHTEENTH. OF SUMMARY CONVICTIONS, AND CONTEMPTS. WE have in this book of our enquiries, considered the various actions which are deemed to be crigues. In treating of thefe crimes, and in defining the power and jurifdictions of courts, we have defcribed thofe courts which have cognizance of crimes and punithments. We are next to confiderthe various modes of proceeding to e 4 Black. Cum. 39. ! bring criminals to juftice. In this chapter, we fall difcufs trials. of a fummary nature, and then proceed in the remaining part of this book, to confider trials of a regular nature. A fummary proceeding is authorised and directed by statute, with out the intervention of a jury, in a different manner from the common law. We have but a very few inftances of this nature. For the crimes of drunkennefs, profane fwearing and fabbath breaking, plain view and perfonal knowledge by an aflitant or justice of the peace, fhall be good and foficient evidence for them to make up judgment against fuch offenders; but they must first iffue a warrant to apprehend and bring the offender before them to be heard, and then they may convict them on their own perfonal knowledge, without calling upon any evidence. Contempts are openly to infult or refift the powers of a court, er abuse the perfons of the judges, and from the very nature of the offence, it is neceflary that the mode of proceeding fhould be fummary and instantaneous, in order to defend the rights, and upport the dignity of the court. The ftatute law provides, that if any perfon or perfons, upon examination or trial, for delinquency or any other perfon not under examination or on trial, fhall either in words or actions, behave contemptuously or diforderly, in the prefence of any court, it fhall be in the power of the court, afliftant or justice of the peace, to inflict upon them fuch punishment as they fhall judge moft fuitable to the nature of the offence, provided that no fingle minifter of juftice fall inflict any other punishment upon fuch offenders, than binding to the peace or good behaviour, to the next county court, putting them in the ftocks not exceeding two hours, or impofing a fine not exceeding thirty fhillings. If any perfon infaults the court, or any of its officers by abufive language, obftructs the bufinefs of the court, is guilty of any perfonal violence to any of the court, or any perfon prefent, or behave rudely, by making a disturbance, or is guilty of a breach of the peace, it fail be confidered as a contempt in the face of the court, and they may inftantly order fuch perfon to be apprehended, or if he leaves the court, may illue a warrant, and upon their own knowledge, f Statutes, 40. knowledge, may order fuch punishment to be inflicted upon him, as they think proper, pursuant to law. But tho all courts but aflitants and juttices of the peace, have an unlimitted difcretionary power, yet this cannot be deemed to authorife them to inflict capital punifliment. It can be fuppofed to extend only to fine, imprifonment, or fuch corporal punishment as may be fuited to the nature of the offence, and according to the principles of the common law. By the ftatute law, our courts have power to punish fuch contempts only, as are committed in face of the court, tho by the English law a great variety of acts done out of the court, have been confidered as contempts, and attachments are illued to bring the offenders before the court: fuch as the mifconduct of inferior magiftrates, the oppreffion of sheriffs and goalers, and the speaking contemptuously of courts: but I have never known an instance where the courts here have attempted to proceed in a fummary way against any contempts, but thofe committed in the face of the court. In addition to this it may be remarked, that by ftatute, courts have a power to inflict a fine not exceeding five fhillings, upon an attorney who fhall tranfgrefs the rules of pleading appointed by court, or for notorious misbehaviour and scandalous practices, may wholly fufpend and difplace them. By the common law, if a witness refuses to be fworn or examined, or prevaricates when fworn he may be punished for a con. tempt. So if a juror refufes to be fworn or to give a verdict, or is guilty of any mifbehaviour or irregularities, he may be punished for a contempt, and fo may any attorney or party, who fhall difregard and difobey the rules and orders of the court. CHAPTER NINETEENTH. OF THE SEVERAL MODES OF PROSECUTION. THERE HERE are four modes of profecuting crimes. By complaint or prefentment of a grandjuror: by information exhibited by an attorney |