degrees of guilt according to the part taken by the several actors. The person who, by his own hand or immediate act, kills or poisons another is the principal. Others may be accessories or aiders and abettors. The mere presence of a person at the commisson of the crime of murder is not the test of being an aider in the crime. For a person may look on and yet not be guilty, either as a principal or as an accessory; though the least that one ought to do, if present under such circumstances, is to interfere and prevent whatever it is reasonably safe to do, consistently with one's own self-preservation. And, for a like reason, he who holds the stakes, while two persons fight but not in his presence, cannot on that account alone be construed to be an accessory before the fact.2

In the case of Lord Mohun, the question was discussed how far a friend, who accompanies A to meet B, and who knows A is at enmity with B, will be implicated in any guilt arising out of A attacking and killing B. The judges held that the mere knowledge by the friend of A's animosity and the mere accompanying of A to meet B was no crime; but if the friend knew that A intended to kill B, and A did kill B, then it is murder in the friend also. And hence in such a situation everything will turn on whether the friend impliedly by his conduct knew and approved of A's design.3

While the mere presence of a person does not constitute one as principal, on the other hand, mere absence is not a test of his not being an accessory.* 4 If one watch at a distance and the other kill, both are alike guilty of murder.5 It is also possible for the one who causes the death to be guilty of manslaughter only, and the abettor to be guilty of murder, according to the malice or intent proved in each individual.

Where there is a principal actor in the murder, and others more or less engaged with him, it is competent to try each separately for his several offence. If a person instigates or counsels a third party himself, or by any intermediate agent, to commit a murder which is afterwards carried

1 Fost. C. L. 350; 1 Hale, P. C. 439. 2 R. v Taylor, 44 L. J., M. C. 65. 3 R. v Mohun, 12 St. Tr. 1034, 1038. 4 Fost. C. L. 350; 1 Hale, P. C, 439. 5 1 Hale, P. C. 615; Fost. C. L. 350. 61 Hale, 446; R. v Salusbury, Plowd. 97.

out, the former is guilty of being an accessory before the fact to the murder, and his offence is punishable in the same manner as murder itself.1 For though the party counselled ought to know he is not bound to act on such advice, and cannot excuse himself on that account, the adviser is responsible for all that ensues on his advice, if acted on, and even for things done in course of such advice being pursued.2 The responsibility of the adviser is, however, limited to the main or substantial point, and only to such things as are the direct and immediate consequence of the advice being acted on, and does not include remote and collateral effects. Thus, where A counsels B to poison C, and C gives part of the poison to D; or if A counsels B to beat C, and B stabs or poisons C, then A will be responsible only for the murder or beating of C, and no further.3 Whereas if A counsel B to poison C, and B stabs or shoots C, A is equally guilty, for it was the death of C that he substantially instigated. Thus in ascertaining whether the murder was in pursuance of the counsel or instigation, the test is whether the perpetration of the crime as committed was a probable consequence of such counsel. And when the crime committed is the same in substance, though the means used may differ, the person who counsels is nevertheless guilty, as an accessory before the fact; thus it is, when the instigation is to poison, and the deed done is to stab or shoot.4

Moreover, to solicit and incite a person to commit murder, though none is committed, is itself a misdemeanour.5

Receiving a felon into one's house.-Where a person has had no part in a murder, but merely has after the fact acquired knowledge, that is, reasonably certain knowledge that the murder has been committed, he will be guilty of being an accessory after the fact to such murder, if he harbour or assist or relieve the murderer, or cause his escape. An accessory after the fact is liable to imprison

6

1 24 & 25 Vic. c. 94; 24 & 25 Vic. c. 100, § 67. P. C. c. 29, § 18.

1 Hale, P. C. 431.

2 2 Hawk.

3 Ibid.; R. v Michael, 2 Mood. C. C. 120; 4 2 Hawk. P. C. c. 29, § 20; 4 Bl. Com. 37. 6 R. v Greenacre, 8 C. & P.

5 R. v Gregory, L. R., 1 C. C. R. 77. 35; 2 Hawk. P. C. c. 29, § 35.

ment for two years or less, or to penal servitude for life, or for at least five years.1

Owing to the absence of malice, which implies deliberation, one distinguishing characteristic of manslaughter is, that there can be no accessories before the fact, for as the principal actor is assumed to have himself not intended the death, or at least not premeditated it, he can have no associates. Therefore, though there may be more than one guilty of the principal felony, all such must have been present and taking part together in the criminal act.2 Yet if poison was given to procure abortion, accessories might be distinguished. And though there may not be accessories before the fact to manslaughter, there may be accessories after the fact. The offence of an accessory after the fact is, however, one seldom prosecuted, partly from the difficulty of evidence, and partly because sympathy and humanity incline most people to treat this as a venial offence. And the court will not allow even a confession of the guilty principal to be treated as evidence against the accessory, who must always be more or less uncertain whether or not the person he harboured has committed the crime. Moreover something more than the bare receiving a felon into one's house is required in order to prove the offence of an accessory after the fact. And the receiving by a wife of her husband, though she has good reason to believe he has committed a felony, is deemed no offence in her, owing to the superior claims of her relationship.5

Murder excludes the notion of lawful business or conduct. -Though murder is a malicious killing of another, yet, owing to the difficulty in ascertaining whether malice existed and the secrecy and fraud under which it is concealed, it is well to add that the killing must be such that it cannot be justified either by self-defence or the lawful conduct or business of the killer. This branch of the definition opens up several situations in which the killer is, or affects to be, lawfully doing some business of his own at the time, and if this lawful business or conduct is made plain, it generally excludes and negatives any 2 1 Hale, 4 R. v Greenacre,

1 24 & 25 Vic. c. 100, § 67; 27 & 28 Vic. c. 47. P. C. 450. 3 R. v. Gaylor, D. & B. 288.

8 C. & P. 35.

5 Bract, b. iii. c. 32, § 9.

necesssity to search for a malicious motive. What then are those departments of lawful business, and conduct, which lead most frequently to a qualification of the rule that killing is murder ? These embrace several common and familiar classes of circumstances. Nothing can be more lawful than self-defence, yet even that may be carried to excess; so may the defence of one's relatives and one's property. There are other lawful things in the doing of which a human being may be killed, and the motive or malice of which may be doubtful till the circumstances are scrutinised. Such are the correction of children— the enforcing or resisting of illegal arrests-the resisting and stopping of crime. On the other hand, there may be a killing of human beings in a course of cruel treatment, and apparently also by perjury in certain circumstances. Of these in their order.

Killing in self-defence.-Self-defence is one of the irrepressible tendencies of human nature, and no law of civilisation or any code of positive enactments, however perfect, can hope to dispense with it. All the actions, indictments, sureties of the peace, and remedies, that courts of law can entertain and enforce can never supersede that radical law of the human being, which operates with the rapidity of an instinct, and which teaches each one who is attacked without cause to repel force with force, to overcome that force with still greater force-to proportion the resistance to the strength of the attack, but at all extremities, even if a deadly weapon is at last the only means of victory, then to attain victory even if the life of the assailant is destroyed in the effort. The reason why self-defence must be recognised in every law is this, that as life or death is often an affair of a moment, there is none but the individual attacked who can bring to bear a sufficiently prompt and effective remedy for the occasion.

While self-defence is a lawful remedy reserved to all human beings against immediate violence, it must at the same time be used with the caution and consideration for others which become a reflective being. There are certain qualifications therefore to be used in defining the limits of this right. The first is, that the degree of force used in self-defence must not exceed what is reasonably calculated to prevent the adversary's success. The second is, that

while one may gradually advance from a lower to a higher degree of force according to the occasion, yet the highest of all, namely, the killing of the adversary, can only be justified by the immediate apprehension that nothing else will prevent the assailed being himself killed. The law always requires that every man shall respect his neighbour's life and safety if consistent with his own; but if in extremities one of two lives must be sacrificed, then self-preservation is presumed by law to be the natural choice of all, though in a few sublime instances of devotion heroes and martyrs have thought little of their own lives in comparison with those of others, or with the triumph or vindication of some great and worthy object that is to be attained. The law may be said, however, to be incapable of comprehending such self-devotion. It deals only with common humanity, endowed as it is with a sufficiency of selfish instincts. The higher elevations in moral and religious life which the law cannot attain to have other standards of right and wrong. Its views of life are mostly selfish. It does not profess to protect or encourage or even comprehend martyrdom.

Saving one's self by flight before killing pursuer.—It seems that a kind of artificial rule was attempted to be laid down on this subject by Hale, to the effect that no one would be justified in killing another in self-defence without first running or flying to the wall, or other non ultra, so as to avoid the violence of the assault; and when he felt bound to say how far such flight must be carried, Hale answered, "Suppose it half a mile." But this was carrying the niceties of dogmatic rules too far. Who can pretend to judge when a man's extremity is reached, when he has shot his last arrow, and must either kill or be killed? In each supreme moment the party attacked must usually be judged with candour, for a third party can seldom enter into each critical situation and the surrounding difficulties of another, which must be measured in the twinkling of an eye. No rule of half a mile or half an hour can be of the least assistance in guiding a jury to decide, whether the killing in self-defence was a moment too soon. swords and pistols are called for, as Pratt, C. J., said, no man can be expected to stand still and be murdered.1

116 St. Tr. 52.

When