[authority. It is here justifiable and even necessary to beat, or wound, or perhaps to kill, the offenders, rather than permit an escape, or the riot to continue ().

There is yet another case of necessity, which has occasioned great speculation among the writers upon general law; viz. whether a man in extreme want of food or clothing may justify stealing either, to relieve his present necessities? And this both Grotius and Puffendorf, together with many other of the foreign jurists, hold in the affirmative; maintaining, by many ingenious, humane, and plausible reasons, that in such cases the community of goods, by a kind of tacit concession of society, is revived. And some even of our own lawyers have held the same, though it seems to be an unwarranted doctrine, borrowed from the notions of some civilians (a) ; at least it is now antiquated, the law of England admitting no such excuse at present (b). And this its doctrine is agreeable, not only to the sentiments of many of the wisest of the antients, particularly Cicero (c); who holds that "suum cuique incommodum ferendum est, potius quam de alterius commodis detrahendum," but also to the Jewish law, as certified by King Solomon himself (d)—"If a thief "steal to satisfy his soul when he is hungry," he shall restore sevenfold, and "shall give all the substance of his "house" which was the ordinary punishment for theft in that kingdom. And this is founded upon the highest reason for men's properties would be under a strange insecurity, if liable to be invaded according to the wants of others, of which wants no one can possibly be an adequate judge, but the party himself who pleads them. In this country, especially, there would be a peculiar (2) 1 Hale, P. C. 51.

(a) De Jure B. et P. 1. 2, c. 2; L. of Nat. and N. 1. 2, c. 6.

(b) See Britt. c. 10; Mirr. c. 4, s. 16; 1 Hale, P. C. 54. The Report of the Criminal Code Bill Commission (p. 10, Note A.) notices that

Lord Hale admits the general rule
to be subject to some exceptions,—
as, for instance, in the seizure of
private stores of provisions by the
master in the case of shipwreck.

(c) De Off. 1. 3, c. 5.
(d) Prov. vi. 30.

[impropriety in admitting so dubious an excuse for by our laws such sufficient provision is made for the poor, that it is impossible that the most needy stranger should ever be reduced to the necessity of thieving to support nature. This case of a stranger is, by the way, the strongest instance put by Baron Puffendorf, and whereon. he builds his principal arguments; which, however, they may hold elsewhere, yet must lose all their weight and efficacy in England, where charity is reduced to a system, and interwoven in our very constitution. Therefore our laws ought by no means to be taxed with being unmerciful, for denying this privilege to the necessitous; especially when we consider that the sovereign, on the representation of the ministers of justice, hath a power to soften the law, and to extend mercy in cases of peculiar hardship: an advantage which is wanted in many states, particularly those which are democratical; and these have in its stead introduced and adopted, in the body of the law itself, a multitude of circumstances tending to alleviate its rigour. But the founders of our constitution thought it better to vest in the Crown the power of pardoning particular objects of compassion, than to countenance and establish theft by one general undistinguishing law.

To these several cases in which the incapacity of committing crimes arises from a deficiency of the will, we may add one more, in which the law supposes an incapacity of doing wrong, from the excellence and perfection of the person which extend as well to the will as to the other qualities of the mind. It is the case of the sovereign, who by virtue of the royal prerogative is not under the coercive power of the law: which will not suppose him capable of committing a folly, much less a crime (e). We are, therefore, out of reverence and decency, to forbear any idle inquiries of what would be the con

(e) 1 Hale, P. C. 44.

[sequence if the sovereign were to act thus and thus: since the law deems so highly of his wisdom and virtue as not even to presume it possible for him to do any thing inconsistent with his station and dignity; and, therefore, has made no provision to remedy such a grievance. But of this sufficient was said in a former division of this work, to which we must refer the reader (f).]

CHAPTER III.

OF PRINCIPALS AND ACCESSORIES.

[Ir having been shown in the preceding chapter what persons are not, upon account of their situation and circumstances, capable of committing crimes, we are next to make a few remarks on the different degrees of guilt among persons that are capable of offending; viz. as principal and

accessory.

I. A man may be principal in an offence, in two degrees. A principal in the first degree is he that is the actor or absolute perpetrator of the crime: and, in the second degree, he who is present aiding and abetting the fact to be done (a). Which presence need not always be an actual immediate standing by, within sight or hearing of the fact; but there may be also a constructive presence, as when one commits a robbery or murder, and another keeps watch or guard at some convenient distance (b). And this rule hath also other exceptions: for, in case of murder by poisoning, a man may be a principal felon, by preparing and laying the poison, or persuading another to drink it who is ignorant of its poisonous quality, or giving it to him for that purpose (c); and yet not administer it him

(a) 1 Hale, P. C. 615; see R. v. Howell, 9 Car. & P. 437.

(b) Foster, 350. In the case of rape, if the prisoner was present aiding and abetting, he may be charged as principal, either in the first or the second degree. (R. v.

Crisham, 1 Car. & M. 187.) A principal in the second degree in larceny, cannot be convicted as a receiver. Queen v. Perkins, 21 L. J., M. C. 152.

(c) Kel. 52; Foster, 349; R. v. Harley, 4 C. & P. 369.

[self, nor be present when the very deed of poisoning is committed (d); and the same reasoning will hold, with regard to other murders committed in the absence of the murderer, by means which he had prepared beforehand, and which probably could not fail of their mischievous effect. As by 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; in every of these cases the party offending is guilty of murder, as a principal in the first degree. For he cannot be called an accessory, 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 accessory, and cannot be so as accessory, it follows that he must be so 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 (e).] It is to be observed, however, that though the law makes the distinction between principals in the first and in the second degree, yet in general the punishment inflicted upon either class of offenders is the same (f).

II. [An accessory is he who is not the chief actor in the offence, nor present at its performance, but is some way concerned therein, either before or after the fact committed. In considering the nature of which degree of guilt, we will first 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 merely as such, and distinct from principals, are to be treated.

(d) 3 Inst. 138; 1 Hale, P. C. 616; Hawk. P. C. b. 2, c. 29, s. 11. (e) 1 Hale, P. C. 617; Hawk. ubi sup.

(f) See, in particular, the fol

lowing enactments:-24 & 25 Vict. c. 96, s. 98; c. 97, s. 56; c. 98, s. 49; c. 99, s. 35; c. 100, s. 67; in reference to the felonies punishable under those Acts respectively.