BLACKSTONE'S COMMENTARIES:
WITH
NOTES OF REFERENCE,
TO
THE CONSTITUTION AND LAWS,
OP THE
FEDERAL GOVERNMENT OF THE UNITED STATES;
AND OF THE
COMMONWEALTH OF VIRGINIA.
IN FIVE VOLUMES.
WITH AN APPENDIX TO EACH VOLUME,
CONTAINING
SHOUT TRACTS UPON SUCH SUBJECTS AS APPEARED NECESSARY TO FORM A CONNECTED
VIEW OF THE LAWS OF VIRGINIA,
AS A MEMBER OF THE FEDERAL UNION.
BY ST. GEORGE TUCKER,
PROFESSOR OF LAW, IK THE UNIVERSITY OF WILLIAM AND MARY, AND ONE OF THE JUDGES OF THE GENERAL COURT IN VIRGINIA.
PHILADELPHIA:
PUBLISHED BY WILLIAM YOUNG BIRCH, AND ABRAHAM SMALL,
NO. 17, SOUTH SECOND-STREET.
ROBERT CARR, PRINTER.
1803.
District of Pennsylvania: to wit.
BE it remembered, That on the ninth day of May, in the twenty-seventh Year of the Independence of the United States of America, William Young Birch, and Abraham Small, of the said District, have deposited in this Office the Title of a Book, the right whereof they claim as Proprietors, in the words following, to wit: "Blackstone's Commentaries: with Notes of Reference, to the Constitution and Laws of the Federal Government of the United States; and of the Commonwealth of Virginia. In Five Volumes. With an Appendix to each Volume, containing, Short Tracts upon such Subjects as appeared necessary to form a connected View of the Laws of Virginia, as a Member of the Federal Union, By St. George Tucker, Professor of Law, in the University of William and Mary, and one of the Judges of the General Court in Virginia." In Conformity to the Act of the Congress of the United States, intituled, "An Act for the Encouragement of Learning, by securing the Copies of Maps, Charts, and Books, to the Authors and Proprietors of such Copies during the times therein mentioned," and also, to an Act entituled, "An Act supplementary to an Act, entituled, an Act for the Encouragement of Learning, by securing the Copies of Maps, Charts, and Books, to the Authors and Proprietors of such Copies, during the Times therein mentioned. And extending the Benefits hereof to the Arts of designing, engraving, and etching historical, and other Prints." (L. S.) D. CALDWELL,
Clerk of the District of Pennsylvania.
COMMENTARIES ON THE LAWS OF ENGLAND.
BOOK THE FOURTH. OF PUBLIC WRONGS.
CHAPTER THE FIRST. OF THE NATURE OF CRIMES; AND THEIR PUNISHMENT.
WE are now arrived at the fourth and last branch of these commentaries; which treats of public wrongs, or crimes and misdemesnors. For we may remember that, in the beginning of the preceding volumea, wrongs were divided into two species; the one private, and the other public. Private wrongs, which are frequently termed civil injuries, were the subject of that entire book: we are now, therefore, lastly, to proceed to the consideration of public wrongs, or crimes and misdemesnors; with the means of their prevention and punishment. In the pursuit of which subject, I shall consider, in the first place, the general nature of crimes and punishments; secondly, the persons capable of committing crimes; thirdly, their several degrees of guilt, as principals or accessories; fourthly, the several species of crimes, with the punishment annexed to each, by the laws of England;
a Book III, c. 1.
fifthly, the means of preventing their perpetration; and sixthly, the method of inflicting those punishments, which the law has annexed to each several crime and misdemesnor.
First, as to the general nature of crimes and their punishment; the discussion and admeasurement of which forms in every country the code of criminal law; or, as it is more usually denominated with us, in England, the doctrine of the pleas of the crown; so called, because the king, in whom centers the majesty of the whole community, is supposed by the law to be the person injured by every infraction of the public rights belonging to that community, and is, therefore, in ail cases, the proper prosecutor for every public offence b.
The knowlege of this branch of jurisprudence, which teaches the nature, extent, and degrees of every crime, and adjusts to it, it's adequate and necessary penalty, is of the utmost importance to every individual in the state. For, (as a very great master of the crown lawc has observed upon a similar occasion) no rank or elevation in life, no uprightness of heart, no prudence or circumspection of conduct, should tempt a man to conclude that he may not, at some lime or other, be deeply interested in these researches. The infirmities of the best among us, the vices, and ungovernable passions of others, the instability of all human affairs, and the numberless unforeseen events, which the compass of a day may bring forth, will teach us (upon a moments reflection) that to know with precision what the laws of our country have forbidden, and the deplorable consequences to which a wilful disobedience may expose us, is a matter of universal concern.
In proportion to the importance of the criminal law, ought also to be the care and attention of the legislature in properly forming and enforcing it. It should be founded upon principles that are permanent, uniform, and universal; and always conformable to the dictates of truth and justice, the feelings of humanity, and the indelible rights of mankind: though it sometimes (provided there be no transgression of these eternal boun-
b See Vol. I, p. 268.
c Sir Michael Foster, Pref. to Rep.
daries) may be modified, narrowed, or enlarged, according to the local or occasional necessities of the state which it is meant to govern. And yet, either from a want of attention to these principles in the first concoction of the laws, and adopting in their stead the impetuous dictates of avarice, ambition, and revenge; from retaining the discordant political regulations, which successive conquerors of factions have established, in the various revolutions of government; from giving a lasting efficacy to sanctions that were intended to be temporary, and made (as lord Bacon expresses it) merely upon the spur of the occasion; or from, lastly, too hastily employing such means as are greatly disproportionate to their end, in order to check the progress of some very prevalent offence; from some, or from all, of these causes it hath happened, that the criminal law is in every country of Europe more rude and imperfect than the civil. I shall not here enter into any minute inquiries concerning the local constitutions of other nations; the inhumanity and mistaken policy of which have been sufficiently pointed out by ingenious writers of their own d. But even with us in England, where our crown-law is with justice supposed to be more nearly advanced to perfection; where crimes are more accurately defined, and penalties less uncertain and arbitrary; where all our accusations are public, and our trial in the face of the world; where torture is unknown, and every delinquent is judged by such of his equals, against whom he can form no exception nor even a personal dislike.... even here we shall occasionally find room to remark some particulars, that seem to want revision and amendment. These have chiefly arisen from too scrupulous an adherence to some rules of the antient common law, when the reasons have ceased upon which those rules were founded; from not repealing such of the old penal laws as are either obsolete or absurd; and from two little rare and attention in framing and passing new ones.... The enacting of penalties, to which a whole nation shall be subject, ought not to be left as a matter of indifference to the passions or interests of a few, who upon temporary motives may prefer or support such a bill; but be calmly and maturely considered by persons who know what provisions the laws have al-
d Baron Montesquieu, marquis Beccaria, &c.
ready made to remedy the mischief complained of, who can from experience foresee the probable consequences of those which are now proposed, and who will judge without passion or prejudice how adequate they are to the evil. It is never usual in the house of peers even to read a private bill, which may affect the property of an individual, without first referring it to some of the learned judges, and hearing their report thereone. And surely equal precaution is necessary, when laws are to be established, which may affect the property, the liberty, and perhaps even the lives, of thousands. Had such a reference taken place, it is impossible that in the eighteenth century it could ever have been made a capital crime, to break down (however maliciously) the mound of a fishpond, whereby any fish shall escape; or to cut down a cherry-tree in an orchardf. Were even a committee appointed but once in an hundred years to revise the criminal law, it could not have continued to this hour a felony without benefit of clergy, to be seen for one month in the company of persons who call themselves, or are called Egyptiansg.
It is true, that these outrageous penalties, being seldom or never inflicted, are hardly known to be law by the public: but that rather aggravates the mischief, by laying a snare for the unwary. Yet they cannot but occur to the observation of anyone, who hath undertaken the task of examining the great outlines of the English law, and tracing them up to their principles: and it is the duty of such a one to hint them with decency to those, whose abilities and stations enable them to apply the remedy.... Having therefore premised this apology for some of the ensuing remarks, which might otherwise seem to savour of arrogance, I proceed now to consider (in the first place) the general nature of crimes.
I. A crime, or misdemesnor, is an act committed, or omitted, in violation of a public law, either forbidding or commanding it. This general definition comprehends both crimes and misdemesnors; which, properly speaking, are mere synony-
e See Vol. II. p. 345.
f Stat. 9 Geo. I. c. 22, 31 Geo. II, c. 42.
g Stat. 5 Eliz. c. 20.
mous terms: though, in common usage, the word "crimes" is made to denote such offences as are of a deeper and more atrocious dye; while smaller faults', and omissions of less consequence, are comprized under the gentler names of "misdemesnors" only1.
The distinction of public wrongs from private, of crimes and misdemesnors from civil injuries, seems principally to consist in this: that private wrongs, or civil injuries, are an infringement or privation of the civil rights which belong to individuals, considered merely as individuals; public wrongs, or crimes and misdemesnors, are a breach and violation of the public rights and duties, due to the whole community, considered as a community, in it's social aggregate capacity. As if I detain a field from another man, to which the law has given him aright, this is a civil injury, and not a crime; for here only the right of an individual is concerned, and it is immaterial to the public, which of us is in possession of the land: but treason, murder, and robbery are properly ranked among crimes; since, besides the injury done to individuals, they strike at the very being of society, which cannot possibly subsist, where actions of this sort are suffered to escape with impunity.
In all cases the crime includes an injury: every public offence is also a private wrong, and somewhat more: it affects the individual, and it likewise affects the community. Thus treason in imagining the king's death involves in it conspiracy against an individual; which is also a civil injury; but as this species of treason in it's consequences principally tends to the dissolution of government, and the destruction thereby of the order and peace of society, this denominates it a crime of the highest magnitude. Murder is an injury to the life of an individual; but the law of society considers principally the loss which the state sustains by being deprived of a member, and the pernicious ex-
1. In the English law misdemeanour is generally used in contradistinction to felony; and misdemeanours comprehend all indictable offences, which do not amount to felony; as perjury, battery, libels, conspiracies, &c. ... Christian.
ample thereby set for others to do the like. Robbery may be considered in the same view: it is an injury to private property; but were that all, a civil satisfaction in damages might atone for it: the public mischief is the thing, for the prevention of which our laws have made it a capital offence. In these gross and atrocious injuries the private wrong is swallowed up in the public: we seldom hear any mention made of satisfaction to the individual; the satisfaction to the community being so very great. And indeed, as the public crime is not otherwise avenged than by forfeiture of life and property, it is impossible afterwards to make any reparation for the private wrong: which can only be had from the body or goods of the aggressor. But there are crimes of an inferior nature, in which the public punishment is not so severe, hut it affords room for a private compensation also: and herein the distinction of crimes from civil injuries is very apparent. For instance; in the case of battery, or beating another, the aggressor may be indicted for this at the suit of the king, for disturbing the public peace, and be punished criminally by fine and imprisonment: and the party beaten may also have his private remedy by action of trespass for the injury which he in particular sustains, and recover a civil satisfaction in damages. So also, in case of a public nuisance, as digging a ditch across a highway, this is punishable by indictment, as a common offence to the whole kingdom and all his majesty's subjects: but if any individual sustains any special damage thereby, as laming his horse, breaking his carriage, or the like, the offender may be compelled to make ample satisfaction, as well for the private injury, as for the public wrong.
Upon the whole we may observe, that in taking cognizance of all wrongs, or unlawful acts, the law has a double view: viz. not only to redress the party injured, by either restoring to him his right, it possible; or by giving him an equivalent; the manner of doing which was the object of our inquiries in the preceding book of these commentaries: but also to secure to the public the benefit of society, by preventing or punishing every breach and violation of those laws, which the sovereign power has thought proper to establish, for the government and tranquility
of the whole. What those breaches are, and how prevented or punished, are to be considered in the present book.
II. The nature of crimes and misdemesnors in general being thus ascertained and distinguished, I proceed in the next place to consider the general nature of punishments: which are evils or inconveniencies consequent upon crimes and misdemesnors; being devised, denounced, and inflicted by human laws, in consequence of disobedience or misbehaviour in those, to regulate whose conduct such laws were respectively made. And herein we will briefly consider the power, the end, and the measure of human punishment.
1. As to the power of human punishment, or the right of the temporal legislator to inflict discretionary penalties for crimes and misdemesnors h. It is clear, that the right of punishing crimes against the law of nature, as murder and the like, is in a state of mere nature vested in every individual: For it must be vested in somebody; otherwise the laws of nature would be vain and fruitless, if none were empowered to put them in execution; and if that power is vested in any one, it must also be vested in all mankind; since all are by nature equal. Whereof the first murderer, Cain, was so sensible, that we find him i expressing his apprehensions, that whoever should find him would slay him. In a state of society this right is transferred from individuals to the sovereign power; whereby men are prevented from being judges in their own causes, which is one of the evils that civil government was intended to remedy. Whatever power therefore individuals had of punishing offences against the law of nature, that is now vested in the magistrate alone; who bears the sword of justice by the consent of the whole community. And to this precedent natural power of individuals must be referred that right, which some have argued to belong to every state, (though, in fact, never exercised by any) of punishing not only their own subjects, but also foreign ambassadors, even with death itself; in case they have offended, not indeed against the
h See Grotius, de j. & p. l. 2. c. 20, Puffendorf, L. of Nat. and N. b. 8. c. 3. i Gen. iv. 14.
municipal laws of the country, but against the divine laws of nature, and become liable thereby to forfeit their lives for their guiltk.
As to offences merely against the laws of society, which are only mala prohibita, and not mala in se; the temporal magistrate is also empowered to inflict coercive penalties for such transgressions: and this by the consent of individuals; who in forming societies, did either tacitly or expressly invest the sovereign power with a right of making laws, and of enforcing obedience to them when made, by exercising, upon their non-observance, seventies adequate to the evil. The lawfulness therefore of punishing such criminals is founded upon this principle, that the law by which they suffer was made by their own consent; it is a part of the original contract into which they entered, when first they engaged in society; it was calculated for, and has long contributed to, their own security.
This right, therefore, being thus conferred by universal consent, gives to the state exactly the same power, and no more over all it's members, as each individual member had naturally over himself or others. Which has occasioned some to doubt, how far a human legislature ought to inflict capital punishments for positive offences; offences against the municipal law only, and not against the law of nature; since no individual has, naturally, a power of inflicting death upon himself or others for actions in themselves indifferent. With regard to offences mala in se, capital punishments are in some instances inflicted by the immediate command of God himself to all mankind; as, in the case of murder, by the precept delivered to Noah, their common ancestor and representativel, "whoso sheddeth man's blood, by man shall his blood be shed." In other instances they are inflicted after the example of the Creator, in his positive code of laws for the regulation of the Jewish republic; as in the case of the crime against nature. But they are sometimes inflicted without such express warrant or example, at the will and discretion of the human legislature; as for forgery, for theft, and sometimes for offences of a lighter kind. Of these we are
k See Vol. I. page 254.
l Gen. ix. 6.
principally to speak: as these crimes are, none of them, offences against natural, but only against social, rights; not even theft itself, unless it be accompanied with violence to one's house or person: all others being an infringement of that right of property; which, as we have formerly seen m, owes it's origin not to the law of nature, but merely to civil society
The practice of inflicting capital punishments, for offences of human institution, is thus justified by that great and good man, sir Matthew Hale n: "when offences grow enormous, frequent, and dangerous to a kingdom or state, destructive, or highly pernicious to civil societies, and to the great insecurity and danger of the kingdom or it's inhabitants, severe punishment, and even death itself is necessary to be annexed to laws in many cases by the prudence of lawgivers." It is therefore the enormity, or dangerous tendency, of the crime, that alone can warrant any earthly legislature in putting him to death that commits it. It is not it's frequency only, or the difficulty of otherwise preventing it, that will excuse our attempting to prevent it by a wanton effusion of human blood. For, though the end of punishment is to deter men from offending, it never can follow from thence, that it is lawful to deter them at any rate and by any means; since there may be unlawful methods of enforcing obedience even to the justest laws. Every humane legislator will be therefore extremely cautious of establishing laws that inflict the penalty of death, especially for slight offences, or such as are merely positive. He will expect a better reason for his so doing, than that loose one which generally is given: that it is found by former experience that no lighter penalty will be effectual. For is it found upon farther experience, that capital punishments are more effectual? Was the vast territory of all the Russias worse regulated under the late empress Elizabeth, than under her more sanguinary predecessors ? Is it now, under Catherine II, less civilized, less social, less secure ? And yet we are assured, that neither of these illustrious princesses have, throughout their whole administration, inflicted the penalty of death: and the latter has, upon full persuasion of it's being useless, nay even pernicious, given orders for abolishing it entirely throughout her
m Book II. ch. 1.
n 1 Hal. P. C. 13.
extensive dominions o. But indeed, were capital punishments proved by experience to be a sure and effectual remedy, that would not prove the necessity (upon which the justice and propriety depend) of inflicting them upon all occasions when other expedients fail. I fear this reasoning would extend a great deal too far. For instance, the damage done to our public roads by loaded waggons is universally allowed, and many laws have been made to prevent it; none of which have hitherto proved effectual. But it does not therefore follow, that it would be just for the legislature to inflict death upon every obstinate carrier, who defeats or eludes the provisions of former statutes. Where the evil to be prevented is not adequate to the violence of the preventive, a sovereign that thinks seriously can never justify such a law to the dictates of conscience and humanity. To shed the blood of our fellow-creature is a matter that requires the greatest deliberation, and the fullest conviction of our own authority: for life is the immediate gift of God to man; which neither he can resign, nor can it be taken from him, unless by the command or permission of him who gave it; either expressly revealed, or collected from the laws of nature or society by clear and indisputable demonstration.
I would not be understood to deny the right of the legislature in any country to enforce it's own laws by the death of the transgressor, though persons of some abilities have doubted it; but only to suggest a few hints for the consideration of such as are, or may hereafter become, legislators. When a question arises, whether death may be lawfully inflicted for this or that transgression, the wisdom of the laws must decide it: and to this public judgment or decision all private judgments must submit; else, there is an end of the first principle of all society and government. The guilt of blood, if any, must lie at their doors, who misinterpret the extent of their warrant; and not at the doors of the subject, who is bound to receive the interpretations that are given by the sovereign power.
2. As to the end, or final cause of human punishments. This is not by way of atonement or expiation for the crime commit-o Grand instructions for framing a new code of laws for the Russian empire, Sec. 210.
ted; for that must be left to the just determination of the Supreme Being: but as a precaution against future offences of the same kind. This is effected three ways: either by the amendment of the offender himself; for which purpose all corporal punishments, fines, and temporary exile or imprisonment are inflicted: or, by deterring others by the dread of his example from offending in the like way, "ut poena (as Tullyp expresses it) ad paucos metus ad omnes perveniat;" which gives rise to all ignominious punishments, and to such executions of justice as are open and public: or, lastly, by depriving the party injuring of the power to do future mischief; which is effected by either putting him to death, or condemning him to perpetual confinement, slavery, or exile. The same one end of preventing future crimes, is endeavoured to be answered by each of these three species of punishment. The public gains equal security, whether the offender himself be amended by wholesome correction, or whether he be disabled from doing any farther harm: and if the penalty fails of both these effects, as it may do, still the terror of his example remains as a warning to other citizens. The method however of inflicting punishment ought always to be proportioned to the particular purpose it is meant to serve, and by no means to exceed it: therefore the pains of death, and perpetual disability by exile, slavery, or imprisonment, ought never to be inflicted, but when the offender appears incorrigible: which may be collected either from a repetition of minuter offences; or from the perpetration of some one crime of deep malignity, which of itself demonstrates a disposition without hope or probability of amendment: and in such cases it would be cruelty to the public, to defer the punishment of such a criminal, till he had an opportunity of repeating perhaps the worst of villainies.
3. As to the measure of human punishments. From what has been observed in the former articles we may collect, that the quantity of punishment can never be absolutely determined by any standing invariable rule; but it must be left to the arbitration of the legislature to inflict such penalties as are warranted by the laws of nature and society, and such as appear to be the
p Pro Cluentio. 46.
best calculated to answer the end of precaution against future offences.
Hence it will be evident, that what some have so highly extolled for it's equity, the lex talionis, or law of retaliation, can never be in all cases an adequate or permanent rule of punishment. In some cases, indeed, it seems to be dictated by natural reason; as in the case of conspiracies to do an injury, or false accusations of the innocent: to which we may add that law of the Jews and Egyptians, mentioned by Josephus and Diodorus Siculus, that whoever without sufficient cause was found with any mortal poison in his custody, should himself be obliged to take it. But, in general, the difference of persons, place, time, provocation, or other circumstances, may enhance or mitigate the offence; and in such cases retaliation can never be a proper measure of justice. If a nobleman strikes a peasant, all mankind will see, that if a court of justice awards a return of the blow, it is more than a just compensation. On the other hand, retaliation may, sometimes, be too easy a sentence; as, if a man maliciously should put out the remaining eye of him who had lost one before, it is too slight a punishment for the maimer to lose only one of his: and therefore the law of the Locrians, which demanded an eye for an eye, was in this instance judiciously altered; by decreeing in imitation of Solon's laws 1, that he who struck out the eye of a one-eyed man, should loose both his own in return. Besides, there are very many crimes, that will in no shape admit of these penalties, without manifest absurdity and wickedness. Theft cannot be punished by theft, defamation by defamation, forgery by forgery, adultery by adultery, and the like. And we may add, that those instances, wherein retaliation appears to be used, even by the divine authority, do not really proceed upon the rule of exact retribution, by doing to the criminal the same hurt he has done to his neighbour and no more; but this correspondence, between the crime and punishment, is barely a consequence from some other principle. Death is ordered to be punished with death; not because one is equivalent to the other, for that would be expiation, and not punishment. Nor is death always an equivalent for death: the execution of a needy decrepid assassin is a poor satisfaction for the murder of
1 Pott. Ant. b. 1, c. 2G.
a nobleman in the bloom of his youth, and full enjoyment of his friends, his honours, and his fortune. But the reason upon which this sentence is grounded seems to be, that this is the highest penalty that man can inflict, and tends most to the security of mankind: by removing one murderer from the earth, and setting a dreadful example to deter others: so that even this grand instance proceeds upon other principles than those of retaliation. And truly, if any measure of punishment is to be taken from the damage sustained by the sufferer, the punishment ought rather to exceed than equal the injury: since it seems contrary to reason and equity, that the guilty (if convicted) should suffer no more than the innocent has done before him; especially as the suffering of the innocent is past and irrevocable, that of the guilty is future, contingent, and liable to be escaped or evaded. With regard indeed to crimes that are incomplete, which consist merely in the intention, and are not yet carried into act, as conspiracies, and the like; the innocent has a chance to frustrate or avoid the villany, as the conspirator has also a chance to escape his punishment: and this may be one reason why the lex talionis is more proper to be inflicted, if at alt, for crimes that consist in intention, than for such as are carried into act. It seems indeed consonant to natural reason, and has therefore been adopted as a maxim by several theoretical writersr, that the punishment due to the crime of which one falsely accuses another, should be inflicted on the perjured informer. Accordingly, when it was once attempted to introduce into England the law of retaliation, it was intended as a punishment for such only as preferred malicious accusations against others; it being enacted by statute 37 Edw. III, ch. 18, that such as preferred any suggestions to the king's great council, should put in sureties of taliation; that is, to incur the same pain that the other should have had, in case the suggestion were found untrue. But, after one year's experience, this punishment of taliation was rejected, and imprisonment adopted in its stead s.
But though from what has been said, it appears, that there cannot be any regular or determinate method of rating the quan-
r Beccar. c. 15.
s Stat. 38 Edw. III, c. 9.
tity of punishments for crimes, by any one uniform rule; but they must be referred to the will and discretion of the legislative power: yet there are some general principles, drawn from the nature and circumstances of the crime, that may be of some assistance in allotting it an adequate punishment.
As, first, with regard to the object of it: for the greater and more exalted the object of an injury is, the more care should be taken to prevent that injury, and of course under this aggravation the punishment should be more severe. Therefore, treason in conspiring the king's death is, by the English law, punished with greater rigour than even actually killing any private subject. And yet, generally, a design to transgress is not so flagrant an enormity, as the actual completion of that design. For evil, the nearer we approach it, is the more disagreeable and shocking; so that it requires more obstinacy in wickedness to perpetrate an unlawful action, than barely to entertain the thought of it: and it is an encouragement to repentance and remorse, even till the last stage of any crime, that it never is too late to retract; and that if a man stops even here, it is better for him than if he proceeds: for which reason an attempt to rob, to ravish, or to kill, is far less penal than the actual robbery, rape, or murder. But in the case of a treasonable conspiracy, the object whereof is the king's majesty, the bare intention will deserve the highest degree of severity; not because the intention is equivalent to the act itself, but because the greatest rigour is no more than adequate to a treasonable purpose of the heart, and there is no greater left to inflict upon the actual execution itself.
Again: the violence of passion, or temptation, may sometimes alleviate a crime; as theft, in case of hunger, is far more worthy of compassion, than when committed through avarice, or to supply one in luxurious excesses. To kill a man upon sudden and violent resentment is less penal than upon cool deliberate malice. The age, education, and character of the offender; the repetition (or otherwise) of the offence; the time, the place, the company wherein it was committed; all these, and
a thousand other incidents, may aggravate or extenuate the crime *.
Farther: as punishments are chiefly intended for the prevention of future crimes, it is but reasonable that among crimes of different natures those should be most severely punished, which are the most destructive of the public safety and happiness v: and, among crimes of an equal malignity, those which a man has the most frequent and easy opportunities of committing, which cannot be so easily guarded against as others, and which therefore the offender has the strongest inducement to commit: according to what Cicero observes u, "ea sunt animadvertenda peccata maxime, quae difficillime praecaventur" Hence it is, that for a servant to rob his master is in more cases capital, than for a stranger: if a servant kills his master, it is a species of treason; in another it is only murder: to steal a handkerchief, or other trifle of above the value of twelve pence, privately from one's person, is made capital; but to carry off a load of corn from an open field, though of fifty times greater value, is punished with transportation only. And, in the island of Man, this rule was formerly carried so far, that to take away an horse or an ox, was there no felony, but a trespass, because of the difficulty in that little territory to conceal them or carry them off: but to steal a pig or a fowl, which is easily done, was a capital misdemesnor, and the offender was punished with death w.
Lastly, as a conclusion to the whole, we may observe that punishments of unreasonable severity, especially when indiscriminately inflicted, have less effect in preventing crimes, and amending the manners of a people, than such as are more merciful in general, yet properly intermixed with due distinctions of severity. It is the sentiment of an ingenious writer, who seems to have well studied the springs of human action x, that crimes
t Thus Demosthenes (in his oration against Midias) finely works up the aggravations of the insults he had received. "I was abused, says he, by my enemy, in cold blood, out of malice, not by heat of wine, in the morning, publicly, before strangers as well as citizens; and that in the temple, whither the duty of my office called me."
v Beccar. c. 6. u pro Sexto Roscio. 40.
w 4 Inst. 285. x Beccar. c. 7.
are more effectually prevented by the certainty, than by the severity of punishment. For the excessive severity of laws (says Montesquieu y) hinders their execution: when the punishment surpasses all measure, the public will frequently, out of humanity, prefer impunity to it. Thus also the statute, 1 Mar. st. 1. c. 1, recites in it's preamble, "that the state of every king consists more assuredly in the love of the subject towards their prince, than in the dread of laws made with rigorous pains; and that laws made for the preservation of the commonwealth without great penalties, are more often obeyed and kept, than laws made with extreme punishments." Happy had it been for the nation, if the subsequent practice of that deluded princess in matters of religion, had been correspondent to these sentiments of herself and parliament, in matters of state and government ! We may farther observe, that sanguinary laws are a bad symptom of the distemper of any state, or at least of it's weak constitution. The laws of the Roman kings, and the twelve tables of the decemviri, were full of cruel punishments: the Porcian law, which exempted all citizens from sentence of death, silently abrogated them all. In this period the republic flourished: under the emperors severe punishments were revived; and then the empire fell.
It is moreover absurd and impolitic to apply the same punishment to crimes of different malignity. A multitude of sanguinary laws (besides the doubt that may be entertained concerning the right of making them) do likewise prove a manifest defect either in the wisdom of the legislative, or the strength of the executive power. It is a kind of quackery in government, and argues a want of solid skill, to apply the same universal remedy, the ultimum supplicium, to every case of difficulty. It is, it must be owned, much easier to extirpate than to amend mankind: yet that magistrate must be esteemed both a weak and a cruel surgeon, who cuts off every limb, which through ignorance or indolence he will not attempt to cure. It has been therefore ingeniously proposedz, that in every state a scale of crimes should be formed, with a corresponding scale of punishments, descending
y Sp. L. b. 6. c. 13.
z Beccar. c. 6.
from the greatest to the least2: but, if that be too romantic an idea, yet at least a wise legislator will mark the principal divisions, and not assign penalties of the first degree to offences of an inferior rank. Where men see no distinction made in the
2. This was first attempted in Virginia by the committee of revisers, (Mr. Jefferson, Mr. Pendleton, and Mr. Wythe,) appointed by the general assembly of Virginia in October 1776, to prepare and report to the general assembly a code of laws for this commonwealth: treason, petit treason, and murder, were the only offences which were deemed worthy of death: manslaughter was to be punished by seven years hard labour, and by confiscation of half the offender's lands and goods, to the next of kin to the person slain: and the like forfeiture, by way of retribution, in all cases of murder. Rape, and sodomy, were to be punished by castration; and malicious maiming, by the lex talionis, or where that was impracticable by forfeiture of lands and goods. Arson, burglary, robbery, horse-stealing, and other lesser crimes, were punishable by hard labour, and reparation to the party injured. This bill did not pass.... See the Report, chap. 64. According to Mr. Swift, the legislature of Connecticut, before Montesquieu and Beccaria had immortalised their names in pleading the cause of humanity, had begun to practice upon the sublime principles which those philosophers have recommended by all the charms of eloquence and power of reason. Their scale is death; confinement to hard labour, and coarse fare; and corporal and pecuniary pains and penalties. The crimes for which death is the punishment, are treason, murder, rape, the crime against nature, mayhem, and arson, where some life is endangered. Imprisonment and hard labour in Newgate, are inflicted for robbery, burglary, forgery, counterfeiting, horse-stealing, arson, attempting to commit a rape, perjury, and aiding to escape from Newgate prison. For all other crimes, corporal and pecuniary punishments are inflicted. Swift's System of the Laws of Connect. 2. 295, 296.
But the example of the state of Pennsylvania seems most worthy of this eulogium, and of the imitation of every other government. They have substituted for all crimes, excepting treason and murder in the first degree, the punishment of confinement to hard labour and coarse fare instead of death. But it is the mode of inflicting the punishment, in the government and discipline of the prison, that the cause of humanity, and the great ends of justice, are most effectually served. In a building accommodated to that purpose, the convicts perform the labour assigned to them with the regularity and order of mechanics in their workshop.. To stimulate industry, they are entitled to receive, on their release, the whole product of their labour, after deducting their own maintenance and expences from the amount. In case of refractory behaviour, they may be confined in solitary cells, until they
nature and gradations of punishment, the generality will be led to conclude there is no distinction in the guilt. Thus in France the punishment of robbery, either with or without murder, is the same a: hence it is, that though perhaps they are therefore
a Sp. L. b. 6 c. 16.
submit to the regulations of the gaol. This mode of confinement to solitary cells, forms also a part of their punishment, and the period is proportioned by the court to the nature and atrocity of their crimes. They are secured and kept to hard labour without irons or shackles, and are not subject to any other hardship: it is said, this mild punishment is found effectual, and that crimes are more effectually restrained by it, than heretofore by death, and other severe punishments.... See an account of the prisons of Philadelphia, by an EUROPEAN. Philadelphia printed, by Moreau de Saint Mery, in 1796. As also, an inquiry how far the punishment of death is necessary, in Pennsylvania, by the late William Bradford, Esq. printed in Carey's Museum for 1798. In the year 1796, Mr. George Keith Taylor, a delegate for the county of Prince George, obtained leave to bring into the house of delegates, in Virginia, a bill to amend the penal laws of this commonwealth, formed upon the principles of the Pennsylvania law, and was happy enough to obtain a majority of the legislature in it's favour. The sum of thirty thousand dollars was thereby granted for the erection of a spacious jail, upon the general plan of that in Philadelphia; a further grant of money has since been made, and the building is so far completed, as to be now fit for the reception of criminals; the law took effect in virtue of the governor's proclamation, that the jail was in a situation to receive criminals on the 26th of March, 1800. And now, no offence whatsoever committed by any FREE PERSON against the commonwealth of Virginia, is punishable with death, except murder in the first degree; by which is meant such as may be perpetrated by poison, or by lying in wait, or any other kind of wilful, deliberate killing; or which may be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, or burglary. All other kinds of murder are deemed murder in the second degree, which is punishable by hard labour and solitary confinement for a period not less than five, nor more than eighteen years. High treason against the state, is punishable, in like manner, for a period not less than six, nor more than twelve years; arson, for a period not less than five, nor more than twelve years; rape, for a period not less than ten, nor more than twenty-one years; robbery and burglary for a period not less than three, nor more than ten years; and by reparation in value to the party injured; horse-stealing for a period not less than two, nor more than seven years, and by restoration of the horse, or reparation in value to the party injured; larceny, above the value of four dollars,
subject to fewer robberies, yet they never rob but they also murder. In China, murderers are cut to pieces, and robbers not: hence in that country they never murder on the highway, though they often rob. And in England, besides the additional terrors of a speedy execution, and a subsequent exposure or dissection, robbers have a hope of transportation, which seldom is extended to murderers. This has the same effect here as in China; in preventing frequent assassination and slaughter.
for a period not less than one, nor more than three years; and under that value, for a period not less than six months, nor more than a year, with reparation in value to the party injured in both cases. Robbery of bonds, bills of exchange, promissory notes, and other securities of the like nature, is punishable in the same manner as robbery of goods. Counterfeiting and forgery, for a period not less than four, nor more than fifteen years, and by fine not exceeding one thousand dollars; malicious maiming and disfiguring, for a period not less than two, nor more than ten years; and by fine, to the use of the party injured, not exceeding one thousand dollars; voluntary manslaughter for a period not less than two, nor more than ten years; and the offender to give security for good behaviour for life, or a less period, according to the enormity of the offence. Involuntary manslaughter happening in consequence of some unlawful act, may be prosecuted as for a misdemeanour. The benefit of clergy is taken away in all cases; all other offences, not enumerated in the act, if the offender would, under the former laws, have been entitled to the benefit of clergy, are punishable in like manner for a period not less than six months, nor more than two years; and if the benefit of clergy were taken away by former laws, then for a period not less than one, nor more than ten years. The jury are, in all cases, to fix the period of imprisonment, and the court that of solitary confinement in the cells of the jail; the latter is not to exceed one half, nor be less than one-twelfth part of the period of the former. L. V. Sess. Acts of 1796, c. 2, and 1799, c. 58. It is most devoutly to be wished, that the success of this experiment in this state, may be equal to what it has been hitherto in Pennsylvania; and that future legislatures may be so well convinced of it's practicability, as well as of it's beneficial effects, as to extend it to SLAVES as well as FREE PERSONS, to whom it's operation is at present confined.
Several ingenious essays on the subject of capital punishments, have, from time to time, appeared in America; of which Mr. Carey has preserved some excellent specimens in his museum. See vol. II, p. 142; vol. III. 395, 509 to 516; vol. IV. 78, 444, 547; vol. V. 63, 121; vol. VII. 6, 69, 135, 193; vol. VIII. 153, 202; vol. X. 215, 267.... Museum for 1798, p. 1.
Yet, though in this instance we may glory in the wisdom of the English law, we shall find it more difficult to justify the frequency of capital punishment to be found therein; inflicted (perhaps inattentively) by a multitude of successive independent statutes, upon crimes very different in their natures. It is a melancholy truth, that among the variety of actions which men are daily liable to commit, no less than an hundred and sixty have been declared by act of parliamentb to be felonies without benefit of clergy; or, in other words, to be worthy of instant death. So dreadful a list, instead of diminishing, increases the number of offenders. The injured, through compassion, will often forbear to prosecute: juries, through compassion, will sometimes forget their oaths, and either acquit the guilty or mitigate the nature of the offence: and judges, through compassion, will respite one half of the convicts, and recommend them to the royal mercy. Among so many chances of escaping, the needy and hardened offender overlooks the multitude that suffer; he boldly engages in some desperate attempt, to relieve his wants or supply his vices; and, if unexpectedly the hand of justice overtakes him, he deems himself peculiarly unfortunate, in falling at last a sacrifice to those laws, which long impunity has taught him to contemn.
b See Ruffhead's index to the statutes (tit. felony) and the acts which have since been made.
CHAPTER THE SECOND.
OF THE PERSONS CAPABLE OF COMMITTING CRIMES.
HAVING, in the preceding chapter, considered in general the nature of crimes, and punishments, we are next led, in the order of our distribution, to inquire what persons are, or are not, capable of committing crimes; or, which is all one, who are exempted from the censures of the law upon the commission of those acts, which in other persons would be severely punished. In the process of which inquiry, we must have recourse to particular and special exceptions: for the general rule is, that no person shall be excused from punishment for disobedience to the laws of his country, excepting such as are expressly defined and exempted by the laws themselves.
All the several pleas and excuses, which protect the committer of a forbidden act from the punishment which is otherwise annexed thereto, may be reduced to this single consideration, the want or defect of will. An involuntary act, as it has no claim to merit, so neither can it induce any guilt: the concurrence of the will, when it has it's choice either to do or to avoid the fact in question, being the only thing that renders human actions either praiseworthy or culpable. Indeed, to make a complete crime, cognizable by human laws, there must be both a will and an act. For though, in foro conscientiae, a fixed design or will to do an unlawful act is almost as heinous as the commission of it, yet, as no temporal tribunal can search the heart, or fathom the intentions of the mind, otherwise than as they are demonstrated by outward actions, it therefore cannot punish for what it cannot know. For which reason in all tem-
temporal jurisdictions an overt act, or some open evidence of an intended crime, is necessary, in order to demonstrate the depravity of the will, before the man is liable to punishment. And, as a vitious will without a vitious act is no civil crime, so, on the other hand, an unwarrantable act without a vitious will is no crime at all. So that to constitute a crime against human laws, there must be, first, a vitious will; and, secondly, an unlawful act consequent upon such vitious will.
Now there are three cases, in which the will does not join with the act: 1. Where there is a defect of understanding. For where there is no discernment, there is no choice; and where there is no choice, there can be no act of the will, which is nothing else but a determination of one's choice to do or to abstain from a particular action: he therefore, that has no understanding, can have no will to guide his conduct. 2. Where there is understanding and will sufficient, residing in the party; but not called forth and exerted at the time of the action done; which is the case of all offences committed by chance or ignorance. Here the will sits neuter; and neither concurs with the act, nor disagrees to it. 3. Where the action is constrained by some outward force and violence. Here the will counteracts the deed; and is so far from concurring with, that it loaths and disagrees to, what the man is obliged to perform. It will be the business of the present chapter briefly to consider all the several species of defect in will, as they fall under some one or other of these general heads: as infancy, idiocy, lunacy, and intoxication, which fall under the first class; misfortune, and ignorance, which may be referred to the second; and compulsion or necessity, which may properly rank in the third.
I. First, we will consider the case of infancy, or nonage; which is a defect of the understanding. Infants, under the age of discretion, ought not to be punished by any criminal prosecution whatever a. What the age of discretion is, in various nations, is matter of some variety. The civil law distinguished the age of minors, or those under twenty-five years old, into three stages: infantia, from the birth till seven years of age;
a 1 Hawk. P. C. 2.
pueritia, from seven to fourteen; and pubertas, from fourteen upwards. The period of pueritia, or childhood, was again subdivided into two equal parts: from seven to ten and an half was aetas infantiae proxima; from ten and an half to fourteen was aetas pubertati proxima. During the first stage of infancy, and the next half stage of childhood, infantiae proxima, they were not punishable for any crime b. During the other half stage of childhood, approaching to puberty, from ten and an half to fourteen, they were indeed punishable, if found to be doll capaces, or capable of mischief: but with many mitigations, and not with the utmost rigour of the law c. During the last stage (at the age of puberty, and afterwards) minors were liable to be punished, as well capitally, as otherwise.
The law of England does in some cases privilege an infant, under the age of twenty-one, as to common misdemesnors: so as to escape fine, imprisonment, and the like: and particularly in cases of omission, as not repairing a bridge, or a highway, and other similar offences d: for, not having the command of his fortune till twenty-one, he wants the capacity to do those things, which the law requires. But where there is any notorious breach of the peace, a riot, battery, or the like, (which infants, when full grown, are at least as liable as others to commit) for these an infant above the age of fourteen, is equally liable to suffer, as a person of the full age of twenty-onel.
With regard to capital crimes, the law is still more minute and circumspect; distinguishing with greater nicety the several
b Inst. 3, 20, 10.
d 1 Hal. P. C. 20, 21, 22.
c Ff. 29, 5, 14, 50, 17, 111, 47, 2, 23.
1. It would seem that twenty-one years were accounted the age of discretion in criminal as well as in civil cases, in the time of king Alfred; who hanged Athulf, one of his judges, because he caused Copping to be hanged before the age of one and twenty years. Hornes Mirror, Ch. 5. Sec. 1. p. 240.
In one case, the unlawful taking away a woman under the age of sixteen, out of the possession of her parents or other person having the care of her, the law seems to regard fourteen years as the age of discretion in the offender. See V. L. 1794, c. 104. Sec. 20.
degrees of age and discretion, By the antient Saxon law, the age of twelve years was established for the age of possible discretion, when first the understanding might open dd: and from thence till the offender was fourteen, it was aetas pubertati proxima, in which he might, or might not be guilty of a crime, according to his natural capacity or incapacity. This was the dubious stage of discretion: but, under twelve, it was held that he could not be guilty in will, neither after fourteen could he be supposed innocent, of any capital crime which he in fact committed. But by the law, as it now stands, and has stood at least ever since the time of Edward the third, the capacity of doing ill, or contracting guilt, is not so much measured by years and days, as by the strength of the delinquent's understanding and judgment. For one lad of eleven years old may have as much cunning as another of fourteen; and in these cases our maxim is, that "malitia supplet aetatem." Under seven years of age indeed an infant cannot be guilty of felonye; for then a felonious discretion is almost an impossibility in nature: but at eight years old he may be guilty of felony f. Also, under fourteen, though an infant shall be prima fade adjudged to be doli incapax; yet if it appear to the court and jury, that he was doli capax, and could discern between good and evil, he may be convicted and suffer death. Thus a girl of thirteen has been burnt for killing her mistress: and one boy of ten, and another of nine years old, who had killed their companions, have been sentenced to death, and he of ten years actually hanged; because it appeared upon their trials, that the one hid himself, and the other hid the body he had killed, which hiding manifested a consciousness of guilt, and a discretion to discern between good and evil g. And there was an instance in the last century, where a boy of eight years old was tried at Abingdon for firing two barns; and it appearing that he had malice, revenge, and cunning, he was found guilty, condemned, and hanged accordingly h. Thus also, in very modern times, a boy of ten years old was convicted on his own confession of murdering his bed-fel-
dd LL. Athelstan Wilk. 65.
c Mir. c. 4. Sec. 16 1 Hal. P. C. 27.
f Dalt. Just. c. 147.
h Emlyn on 1 Hal. P. C. 25,
g 1 Hal. P. C. 26, 27.
low; there appearing in his whole behaviour plain tokens of a mischievous discretion; and, as the sparing this boy merely on account of his tender years might be of dangerous consequence to the public, by propagating a notion that children might commit such atrocious crimes with impunity, it was unanimously agreed by all the judges that he was a proper subject of capital punishment i. But in all such cases, the evidence of that malice, which is to supply age, ought to be strong and clear beyond all doubt and contradiction.
II. The second case of a deficiency in will, which excuses from the guilt of crimes, arises also from a defective or vitiated understanding, viz. in an idiot or a lunatic. For the rule of law as to the latter, which may easily be adapted also to the former, is, that "furiosus furore solum punitur." In criminal cases therefore idiots and lunatics are not chargable for their own acts, if committed when under these incapacities: no, not even for treason itself k. Also, if n man in his sound memory commits a capital offence, and before arraignment for it, he becomes mad, he ought not to be arraigned for it; because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried: for how can he make his defence? If, after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced 2; and if, after judgment, he becomes of nonsane memory, execution shall be stayed: for peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution l. Indeed, in the bloody reign of
i Foster, 72.
l 1 Hal P. C. 34.
k 3 Inst. 6.
2. King Alfred hanged Cole, one of his judges because he judged Ive to death, when he was a madman. Mirror c. 5. p. 239. But Henry the VIII procured a statute to be made in his reign, whereby any person committing treason, and afterwards becoming a lunatic might be thereof indicted, and arraigned without his personal presence; and if found guilty should suffer death as if he were of perfect memory, See statutes at large. 33. Hen. VIII, c. 20.
Henry the eighth, a statute was made m, which enacted, that if a person, being compos mentis, should commit high treason, and after fall into madness, he might be tried in his absence, and should suffer death, as if he were of perfect memory. But this savage and inhuman law was repealed by the statute1 and 2 Ph. and M. c. 10. For, as is observed by sir Edward Coke n, "the execution of an offender is for example, ut poena ad paucos, metus ad omnes perveniat: but so it is not when a madman is executed; but should be a miserable spectacle, both against law, and of extreme inhumanity and cruelty, and can be no example to others." But if there be any doubt, whether the party be compos or not, this shall be tried by a jury. And if he be so found, a total idiocy, or absolute insanity, excuses from the guilt, and of course from the punishment, of any criminal action committed under such deprivation of the senses: but, if a lunatic hath lucid intervals of understanding, he shall answer for what he does in those intervals, as if he had no deficiency °. Yet, in the case of absolute madmen, as they are not answerable for their actions, they should not be permitted the liberty of acting unless under proper control, and, in particular, they ought not to be suffered to go loose to the terror of the king's subjects. It was the doctrine of our antient law, that persons deprived of their reason might be confined till they recovered their senses p, without waiting for the forms of a commission or other special authority from the crown: and now, by the vagrant acts 1, a method is chalked out for imprisoning, chaining, and sending them to their proper homes3.
III. Thirdly; as to artificial, voluntarily contracted madness, by drunkenness or intoxication, which, depriving men of their reason, puts them in a temporary phrenzy; our law looks upon this as an aggravation of the offence, rather than as an excuse for any criminal misbehaviour. A drunkard, says sir Edward Coke r, who is voluntarius daemon, hath no privilege thereby; but what
m 33 Hen. VIII, c. 20. o 1 Hal. P. C. 31. q 17 Geo. II, c. 5
n 5 Inst. 6.
p Bro. Mr tit. corone. 101.
r 1 Inst. 247.
3. On this subject. See V. L. 1794, c. 120.
hurt or ill soever he doth, his drunkenness doth aggravate it: nam omne crimen ebrietas, et incendit, et detegit. It hath been observed, that the real use of strong liquors, and the abuse of them by drinking to excess, depend much upon the temperature of the climate in which we live. The same indulgence, which may be necessary to make the blood move in Norway, would make an Italian mad. A German, therefore, says the president Montesquieu s, drinks through custom, founded upon constitutional necessity: a Spaniard drinks through choice, or out of the mere wantonness of luxury: and drunkenness, he adds, ought to be more severely punished, where it makes men mischievous and mad, as in Spain and Italy, than where it only renders them stupid and heavy, as in Germany and more northern countries. And accordingly, in the warm climate of Greece, a law of Pittacus, enacted, ''that he who committed a crime, when drunk, should receive a double punishment;" one for the crime itself, and the other for the ebriety which prompted him to commit it t. The Roman law indeed made great allowances for this vice: "per vinuni delapsis capitalis poena remittitur u." But the law of England, considering how easy it is to counterfeit this excuse, and how weak an excuse it is, (though real) will not suffer any man thus to privilege one crime by another w 4.
IV. A fourth deficiency of will, is where a man commits an unlawful act by misfortune or chance, and not by design. Here the will observes a total neutrality, and does not co-operate with the deed; which therefore wants one main ingredient of a crime. Of this, when it affects the life of another, we shall find more oc-
s Sp L. b. 14. c. 10. u Ff. 49. 16. 6.
t Puff. L. of N. b. 8. c. 3. w Plowd. 10.
4. Since our law punishes drunkenness, it certainly makes it no excuse for the perpetration of any crime; and the smallness of the fine, viz. eighty three cents, would induce us to suppose that the law does not regard it as an aggravation of any other crime. See V. L. 1794, c. 138.
On the subject of this, and the preceding head, see 1 Hale, H. P. C. p. 30, &c. where the subject is treated more fully, and in some respects more satisfactorily.
casion to speak hereafter: at present only observing, that if any accidental mischief happens to follow from the performance of a lawful act, the party stands excused from all guilt: but if a man be doing any thing unlawful, and a consequence ensues which he did not foresee or intend, as the death of a man or the like, his want of foresight shall be no excuse; for being guilty of one offence, in doing antecedently what is in itself unlawful, he is criminally guilty of whatever consequence may follow the first misbehaviour x 5.
V. Fifthly, ignorance, or mistake is another defect of will; when a man, intending to do a lawful act, does that which is unlawful. For here the deed and the will acting separately, there is not that conjunction between them, which is necessary to form a criminal act. But this must be an ignorance or mistake of fact, and not an error in point of law. As if a man, intending to kill a thief or house-breaker in his own house, by mistake kills one of his own family, this is no criminal action y: but if a man thinks he has a right to kill a person excommunicated or outlawed, wherever he meets him, and does so; this is wilful murder. For a mistake in point of law, which every person of discretion not only may, but is bound and presumed to know, is in criminal cases no sort of defence. Ignorantia juris, quod quisque tenetur scire, neminem excusat, is as well the maxim of our own law z, as it was of the Roman a.
VI. A sixth species of defect of will is that arising from compulsion and inevitable necessity. These are a constraint upon the will, whereby a man is urged to do that which his judgment disapproves; and which, it is to be presumed, his will, (if left to
x 1 Hal. P C. 39. z Plowd. 343.
y Cro. Car. 538. a Ff. 22. 6. 9.
5. This is to be understood of such acts as are mala in se and, not merely mala prohibita; as shooting at. game by persons not qualified by statute. Foster, 259.... Christian.
Any person guilty of involuntary manslaughter, happening in consequence of an unlawful act, may be prosecuted and punished as for a misdemeanor, only. L. V. 1796, c. 2, §. 12.
itself) would reject. As punishments are therefore only inflicted for the abuse of that free will, which God has given to man, it is highly just and equitable that a man should be excused for those acts, which are done through unavoidable force and compulsion.
1. Of this nature, in the first place, is the obligation of civil subjection, whereby the inferior is constrained by the superior to act contrary to what his own reason and inclination would suggest: as when a legislature establishes iniquity by a law, and commands the subject to do an act contrary to religion or sound morality. How far this excuse will be admitted in foro conscientiae, or whether the inferior in this case is not bound to obey the divine, rather than the human law, it is not my business to decide; though the question I believe, among the casuists, will hardly bear a doubt. But, however that may be, obedience to the laws in being is undoubtedly a sufficient extenuation of civil guilt before the municipal tribunal. The sheriff, who burnt Latimer and Ridley, in the bigotted days of queen Mary, was not liable to punishment from Elizabeth, for executing so horrid an office; being justified by the commands of that magistracy, which endeavoured to restore superstition under the holy auspices of it's merciless sister, persecution.
As to persons in private relations; the principal case, where Constraint of a superior is allowed as an excuse for criminal misconduct, is with regard to the matrimonial subjection of the wife to her husband: for neither a son or a servant are excused for the commission of any crime, whether capital or otherwise, by the command or coercion of the parent or master b; though in some cases the command or authority of the husband, either express 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 c.... Which doctrine is at least a thousand years old in this kingdom,
b 1 Hawk. P. C. 3.
c Hal P C. 43.
being to be found among the laws of king Ina, the West Saxond. 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; "procul dubio quod ulterum libertas, alterum necessitas impelleret e." But (besides that in our law, which is a stranger to slavery, no impunity is given to servants, who are as much free agents as their masters) even with regard to wives, this rule admits of an exception in crimes that are mala in se, and prohibited by the law of nature, as murder and the like*: not only because these are of a deeper die; but also, since in a state of nature no one is in subjection to another, it would be unreasonable to screen an offender from the punishment due to natural crimes, by the refinements and subordinations of civil society 6. In treason also, (the highest crime which a member of society can, as such, be guilty of) no plea of coverture shall excuse the the wife; no presumption of the husband's coercion shall extenuate her guilt f: as well because of the odiousness and dangerous consequence 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. In inferior misdemesnors also, we may remark another exception; that a wife may be indicted and set in the pillory with her husband, for keeping a brothel; for this is an offence touching the domestic economy or govern-
d Cap. 57.
f 1 Hal P.C. 47.
e Stiernh. de jure Sueon. l. 2. c. 4.
* The law seems to protect the wife in all felonies committed by her in company with her husband, except murder and man-slaughter. 1 Hal. P. C. 47.
Christian.
6. In the year 1786, a slave belonging to one Jones was convicted before Prince George county court, of having murdered a man by hanging him, in the company and by the command of his master, and one Abbot who was afterwards convicted: the court recommended the slave to mercy, as it appeared he acted under the coercion of his master, then present, and he was pardoned by the executive.......
Jones made his escape, and is said to be now alive in Georgia.
ment of the house, in which the wife has a principal share; and is also such an offence as the law presumes to be generally conducted by the intrigues of the female sex g. 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.
2. Another species of compulsion or necessity is what our law calls duress per minas h; or threats and menaces, which induce a fear of death or other bodily harm, and which take away for that reason the guilt of many crimes and misdemesnors; at least before the human tribunal. But then that fear, which compels a man to do an unwarrantable action, ought to be just and well-grounded; such, "qui cadere possit in virum constantem, non timidum et meticulosum," as Bracton expresses it i, in the words of the civil law k. Therefore, in time of war or rebellion, a man may be justified in doing many treasonable acts by compulsion of the enemy or rebels, which would admit of no excuse in the time of peace l. This however seems only, at least principally, to hold as to positive crimes, so created by the laws of society; and which therefore society may excuse; but not as to natural offences, so declared by the law of God, wherein human magistrates are only the executioners of divine punishment. And therefore though a man be violently assaulted, and hath no other possible means of escaping death, but by killing an innocent person: this fear and force shall not acquit him of murder; for he ought rather to die himself, than escape by the murder of an innocent m. But in such case he is permitted to kill the assailant;. for there the law of nature, and self-defence it's primary canon, have made him his own protector.
3. There is a third species of necessity, which may be distinguished from the actual compulsion of external force or fear; being the result of reason and reflection, which act upon and constrain a man's will, and oblige him to do an action, which with-
g 1 Hawk. P. C. 2. 3. i l. 2 f. 16. l 1 Hal. P. C. 50.
h See Vol. I. page 131 k Ff. 4, 2, 5 & 6. m 1 Hal. P. C. 51.
out such obligation would be criminal. And that is, when a man has his choice of two evils set before him, and, being under a necessity of chusing one, he chuses the least pernicious of the two. Here the will cannot be said freely to exert itself, being rather passive, than active; or, if active, it is rather in rejecting the greater evil than in chusing the less. Of this sort is that necessity, where a man by the commandment of the law is bound to arrest another for any capital offence, or to disperse a riot, and resistance is made to his authority: 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. For the preservation of the peace of the kingdom, and the apprehending of notorious malefactors, are of the utmost consequence to the public: and therefore excuse the felony, which the killing would otherwise amount to n.
4. 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 cloathing may justify stealing either, to relieve his present necessities. And this, both Grotius o and Puffendorf p, 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 concession of society is revived. And some, even of our own lawyers, have held the same q, though it seems to be an unwarranted doctrine, borrowed from the notions of some civilians: at least it is now antiquated, the law of England admitting no such excuse at present r. And this, it's doctrine, is agreeable not only to the sentiments of many of the wisest antients, particularly Cicero s, 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 t: "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 foun-
n 1 Hal. P. C. 53.
p L. of Nat. and N. 1, 2. c. 6.
r 1 Hal. P. C. 54.
t Prov. vi. 30.
o de jure b. & p. l. 2. c. 2.
q Britton. c. 10. Mirr. c. 4. Sec. 16,
s de off. l. 3. c. 5.
ded 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 man can possibly be an adequate judge, but the party himself who pleads them. In this country especially, there would be a peculiar impropriety in admitting so dubious an excuse: for, by our laws, such sufficient provision is made for the poor by the power of the civil magistrate, 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 upon the continent, where the parsimonious industry of the natives, orders every one to work or starve, 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 king, on the representation of his ministers of justice, hath a power to soften the law, and to extend mercy, in cases of peculiar hardship7. An advantage which is wanting in many
7. During the dispute between England and Spain about the Falkland Islands, the following melancholy incident is said to have happened in London: A workman was returning one evening to his family with his weekly wages: he was apprehended by a press gang, and cast into the hold of a tender; his landlord, and some other of his creditors, hearing of what they called his elopement, seised on his furniture, and his wife and child were turned out of doors. Within a few days after, the mother was delivered of a second child, in a garret. As soon as weakness permitted her to rise, she left her two naked children, and wandered in the streets, as a common beggar. Instead of obtaining assistance, she was reproached as an abandoned vagabond. In despair she went into a shop, and attempted to carry off a small piece of linen. She was seised, tried, and condemned to be hanged. In her defence, she said she had lived reputably and happily, till the press-gang robbed her of her husband, and in him, of all means of support for herself and children: that in attempting to cloath her new born infant, she, perhaps, did wrong, as she did not, at that time, know what she did. The parish officers and other witnesses bore testimony to the truth of her averment, she was, nevertheless, condemned, and executed at Tyburn. This fact is said to have been men-
states, particularly those which are democratical 8: and these have, in it's stead introduced and adopted, in the body of the law itself, a multitude of circumstances tending to alleviate it's 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.
VII. 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 extends as well to the will as to the other qualities of his mind. I mean the case of the king; who, by virtue of his royal prerogative, is not under the coercive power of the law u; which will not suppose him capable of committing a folly, much less a crime. We are, therefore, out of reverence and decency, to forbear any idle inquiries, of what would be the consequence, if the king 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 volume w, to which I must refer the reader 9.
u 1 Hal. P. C. 44.
w Book I, c. 7, p. 244.
tioned in the British house of commons, by Sir William Meridith, May, 13, 1777. For the sake of humanity, it were to be wished that the authenticity of it, were more questionable. It shews how far theoretical excellence, and practical abominations may exist together at the same time, and in the same country.
8. This is not true, as it respects the American States.... The power of pardon is vested in the executive department of the government in every state.
9. As in the course of the present volume the student will frequently meet with offences created by statute, or, the penalties of
which have been altered by statute, it will be proper in this place to apprise him, that the legislature of VIRGINIA, considering that the good people of this commonwealth may be ensnared by an ignorance
of acts of the parliament of England which have never been published
in any collection of the laws, and having thought it advisable from time to time specially to enact such of the statutes of that kingdom, as have appeared to them to be worthy of adoption, did in the year, 1792, enact and declare, that thereafter, no statute or act of parliament shall have any force, or authority within this commonwealth. L. V. Edi. 1794, c. 147.
And, (as we have elsewhere endeavoured to shew) inasmuch as neither the statute law of England, nor that of any other nation, can have any authority or obligation in the government of the United States, so neither can any offence created by statute in England, be deemed an offence, for that reason, against the federal government.
All statutory offences and penalties whatsoever, treated of in the commentaries, as offences, against the laws of England, are, therefore, to be regarded only as offences in that kingdom, and, not as having any existence either in the commonwealth of Virginia, or under the federal government, unless made such by the legislature of the commonwealth, or of the United States.
This general rule, if attended to, will save an infinite deal of trouble, in perusing those parts of this volume, which treat of offences created, enlarged, or diminished, by statute.
CHAPTER THE THIRD.
OF PRINCIPALS AND ACCESSORIES.
IT having been shewn in the preceding chapter what persons are, or 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 as 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 is who is present, aiding, and abetting the fact to be done a 1. Which
a 1 Hal. P C. 615.
1. Antiently these principals in the second degree were held to be accessories, only, and not principals. M. 40 Edw. III. pl. 22. p. 42, and 40. Ass. pl. 25, whereby it appears four were appealed as principals, in murder, and the others of presence, force and aid. But of late times, (says Plowden) the law has been held contrary in this point, for they are now taken to be principals by all the sages of the law. And it seems that the law was so changed in the time of Henry the fourth. Plowd. 99, 100, and by Bromley C. I. those who give the stroke are principals in deed; but those who are present, aiding and abetting, only, are principals in law. Plowden, 97. And by the same judge, if the principal in the second degree be tried and convicted before him in the first degree, and then the principal in the first degree be tried and acquitted, he in the second degree shall be also acquitted, notwithstanding his former conviction, ibid. Nevertheless where the
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 c who is ignorant of it's poisonous quality d, or giving it to him for that purpose; and yet not administer it himself, nor be present when the very deed of poisoning is committed e. And the same reasoning will hold, with regard to other murders committed in the absence of the murderer, by means which he had prepared before-hand, 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 person, 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 guilty as principal: and if principal, then in the first
b Foster, 350. d Foster, 349.
c Kel. 52. e 8 Inst. 138.
principals in the first degree made their escape, those in the second degree, might notwithstanding, be tried and if conducted might have judgment of death against them and be executed. Plowden, 101.
In the reign of Hen. VII, the chief justice Hussey, whose authority is much relied on in respect to there being no accessories in treason; asked this question of all the judges assembled in the exchequer chamber; whether he who is present at the death of a man, and moves another to strike him, be a principal ? And it was held by all the judges present, that he is a principal as much as if he had given the stroke. Hussey, said, although he were not present, it is all one. Quod fuit concessum per aliquos. Year Book, 4 Hen. VII. p. 18, and in the same book, 13 Hen. VII. p. 10, there is a case to that effect.
degree; for there is no other criminal, much less a superior in the guilt, whom he could aid, abet, or assist f.
II. An accessory is he who is not the chief actor in the offence, nor present at it's performance, but is someway 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.
1. And, first, as to what offences admit of accessories, and what not. In high treason there are no accessories, but all are principals: the same acts, that make a man accessory in felony, making him a principal in high treason, upon account of the heinousness of the crime g 2. Besides it is to be considered, that the bare intent to commit treason is many times actual treason: as imagining the death of the king, or conspiring to take away his crown. And, as no one can advise and abet such a crime without an intention to have it done, there can be no accessories before the fact; since the very advice and abetment amount to principal treason. But this will not hold in the inferior species of high treason, which do not amount to the legal idea of compassing the death of the king, queen, or prince. For in those no advice to commit them, unless the thing be actually performed, will make a man a principal traitor h. In petit treason, murder, and felonies with or without benefit of clergy, there may be accessories: except only in those offences, which by
f 1 Hal. P. C. 617. 2 Hawk. P. C.315.
g 3 Inst. 138. 1 Hal. P. C. 613. h Foster, 342.
2. It appears highly questionable for reasons that will hereafter appear, whether the doctrine here laid down, though supported by the authority of Sir Mathew Hale, and Sir Edward Coke, is perfectly sound, even upon the principles of the common law. But the applicability of this doctrine to the offence of treason against the United States, is I apprehend, infinitely more questionable; as will be shewn at large in the tract concerning treason. Appendix to this volume, Note B.
judgment of law are sudden and unpremeditated, as manslaughter and the like; which therefore cannot have any accessories before the fact i. So too in petit larceny, and in all crimes under the degree of felony, there are no accessories either before or after the fact; but all persons concerned therein, if guilty at all, are principals k: the same rule holding with regard to. the highest and lowest offences; though upon different reasons. In treason all are principals, propter odium delicti; in trespass all are principals, because the law, quae de minimis non curat, does not descend to distinguish the different shades of guilt in petty misdemesnors. It is a maxim, that accessorius sequitur naturam sui principalis l: and, therefore, an accessory cannot be guilty of a higher crime than his principal; being only punished, as a partaker of his guilt. So that if a servant instigates a stranger to kill his master, this being murder in the stranger as principal, of course the servant is accessory only to the crime of murder; though, had he been present and assisting, he would have been guilty as principal of petty treason, and the stranger of murder m.
2. As to the second point, who may be an accessory before the fact; sir Matthew Hale n 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. Herein absence is necessary to make him an accessory, for if such procurer, or the like, be present, he is guilty of the crime as principal. If A then advises B to kill another, and B does it in the absence of A, now B is principal, and A is accessory in the murder, And this holds, even though the party killed be not in rerum natura at the time of the advice given. As if A, the reputed father, advises B the mother of a bastard child, unborn, to strangle it when born, and she does so; A is accessory to this murder o. And it is also settled p, that whoever procureth a felony to be committed, though it be by the intervention of a third person, is an accessory before the fact. It is likewise a
i 1 Hall. P.C. 615. l 3 Inst. 139. n 1 Hal. P. C. 615. 616. p Foster. 125.
k Ibid. 613.
m 2 Hawk. P. C. 315.
o Dyer, 186.
rule, that he who in any wise commands or counsels another to commit an unlawful act, is accessory to all that ensues upon that unlawful act; but is not accessory to any act distinct from the other. As if A commands B to beat C, and B beats him so that he dies; B is guilty of murder as principal, and A as accessory. But if A commands B to burn C's house; and he in so doing commits a robbery; now A, though accessory to the burning, is not accessory to the robbery, for that is a thing of a distinct and unconsequential nature q. But if the felony committed be the same in substance with that which is commanded, and only varying in some circumstantial matters; as if, upon a command to poison Titius, he is stabbed or shot, and dies, the commander is still accessory to the murder, for the substance of the thing commanded was the death of Titius, and the manner of it's execution is a mere collateral circumstance r.
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 s. Therefore, to make an accessory ex post facto, it is in the first place requisite that he knows of the felony committed t. In the next place, he must receive, relieve, comfort, or assist him. And, generally, any assistance whatever given to a felon, to hinder his being apprehended, tried, or suffering punishment, makes the assistor an accessory. As furnishing him with a horse to escape his pursuers, money or victuals to support him, a house or other shelter to conceal him, or open force and violence to rescue or protect him u. So likewise to convey instruments to a felon to enable him to break gaol, or to bribe the gaoler to let him escape, makes a man an accessory to the felony. But to relieve a felon in goal with cloaths or other necessaries, is no offence: for the crime imputable to this species of accessory is the hindrance of public justice, by assisting the felon to escape the vengeance of the law v. To buy or receive stolen goods, knowing them to be stolen, falls under none of these descriptions; it was therefore at common law, a mere misdemesnor, and made not the receiver
q 1 Hal. P. C. 617. s 1 Hal. P. C. 618. u 2 Hawk. P. C. 317, 318.
r 2 Hawk. P. C. 316. t 2 Hawk. P. C. 319. v 1 Hal. P. C. 620, 621.
accessory to the theft, because he received the goods only, and not the felon u: but now by the statutes 5 Ann. c. 31, and 4 Geo. I. c. 11, all such receivers are made accessories (where the principal felony admits of accessories w), and may be transported for fourteen years; and, in the case of receiving linen goods stolen from the bleaching-grounds, are by statute 18 Geo. II. c. 27, declared felons without benefit of clergy3. In France such receivers are punished with death: and the Gothic constitutions distinguished also three sorts of thieves, "unum qui consillum daret, alterum qui contrectaret, tertium qui receptaret et occuleret; pari poenae singulos obnoxios x."
The felony must be complete at the time of the assistance given; else it makes not the assistance an accessory. As if one wounds another mortally, and after the wound given, but before death ensues, a person assists or receives the delinquent: this does not make him accessory to the homicide; for, till death ensues, there is no felony committed y. But so strict is the law where a felony is actually complete, in order to do effectual justice, that the nearest relations are not suffered to 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 z. 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, and
u 1 Hal. P. C. 620. w Foster, 73,
x Stiernhook, de jure Goth. I. 3, c, 5.
y 2 Hawk. P. C. 320. z 3 Inst. 108 2 Hawk. P. C 320.
3. Neither of these statutes is in force in Virginia. But any person buying or receiving any stolen goods, knowing them to be stolen, or buying or receiving any HOUSES, knowing them to be stolen, may be prosecuted as for a misdemeanour: which, in both cases, shall exempt the offender from being punished as accessory, if the principal felon be afterwards taken and convicted. V, L. 1794, c. 101. and 109.
therefore she is not bound, neither ought she, to discover her lord a,
4. The last point of inquiry is, how accessories are to be treated, considered distinct from principals. And the general rule of the antient law (borrowed from the Gothic constitutions b) is this, that accessories shall suffer the same punishment as their principals: if one be liable to death, the other is also liable c: as, by the laws of Athens, delinquents and their abettors were to receive the same punishment d. Why then, it may be asked, are such elaborate distinctions made between accessories and principals, if both are to suffer the same punishment ? For these reasons. 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 harbouring the robber. 2. Because, though by the antient common law the rule is as before laid down, that both shall be punished alike, yet now by the statutes relating to the benefit of clergy a distinction is made between them: accessories after the fact being still allowed the benefit of clergy in all cases, except horse-stealing e and stealing of linen from bleaching-grounds f; which is denied to the principals, and accessories before the fact, in many cases; as, among others, in petit treason, murder, robbery, and wilful burning g 4.
a 1 Hal P. C. 621. c 3 Inst. 183. e Stat. 31 Eliz. c. 12. g 1 Hal. P. C. 615.
b See Stiernhook. ibid. d Pott. Antiq b. 1. c 26. f Stat. 18 Geo. II, c. 27.
4. The act of 1789, c. 22. Edi. 1794, c. 47, allowed the benefit of clergy to accessories after the fact, in all cases whatsoever. But the benefit of clergy is now taken away, on all cases, by the act for amending the penal laws, 1796, c. 2, and in lieu thereof it is declared, that every person convicted of any felony not specifically mentioned in that act, which was theretofore deemed clergyable, shall undergo an imprisonment at hard labour, and solitary confinement, for any time not less than six months, and not more than two years. V. L. sessions acts of 1796, c. 2. Sec. 13.
Note... Accessories before the fact in murder, are not mentioned in the act of 1796, being deprived of the benefit of clergy, by the form-
And perhaps if a distinction were constantly to be made between the punishment of principals and accessories, even before the fact, the latter to be treated with a little less severity than the former, it might prevent the perpetration of many crimes, by increasing the difficulty of finding a person to execute the deed itself; as his danger would be greater than that of his accomplices, by reason of the difference of his punishment h. 3 Because formerly no man could be tried as accessory, till 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, as will be shewn more fully in it's proper place 5. 4. Because, though a man be indicted as accessory and acquitted, he may afterwards be indicted as principal: for an acquittal of receiving or counselling a felon is no acquittal of the felony itself: but it is matter of some doubt, whether, if a man be acquitted as principal, he can be afterwards indicted as accessory before the fact; since those offences are frequently very near allied, and therefore an acquittal of the guilt of one may be an acquittal of the other also i. But it is clearly held, that one acquitted as principal may be indicted as an accessory after the fact; since that is always an offence of a different species of guilt, principally tending to evade the public justice, and is subsequent in it's commencement to the other. Upon these reasons the distinction of principal and accessory will appear to be highly necessary; though the punishment is still much the same with regard to principals, and such accessories as offend before the fact is committed.
h Beccar. c. 37.
i 1 Hal. P. C. 625, 626. 2 Hawk. P. C. 373. Foster. 361.
er law, their case will come under the act of 1799, c. 58, whereby the punishment is changed to imprisonment in the penitentiary house for any time not less than one, nor more than ten years.
5. And this is still the law, as to accessories before the fact but accessories after the fact, in horse-stealing; and the receivers of stolen goods, knowing them to be stolen, may be prosecuted as for a misdemeanour only, altho', the principal be not yet taken, or convicted, as was before mentioned, ante p. 38, in note... and V. L. 1794. c. 101, 109.
If any principal offender be convicted of any felony, or stands mute or persists in peremptorily challenging above the number of twenty jurors, (both which cases amount to a conviction. V. L. 1794, c. 74. Sec. 18.) the accessory whether before, or after the fact, may be proceeded against, in the same manner as if the principal had been attainted; notwithstanding such principal felon may have been admitted to his clergy, pardoned, or otherwise delivered before attainder; and every such accessory shall suffer the same punishment in case of conviction standing mute, or peremptorily challenging more than twenty jurors, as he would if the principal had been attainted. L. V. 1794, c. 109.
CHAPTER THE FOURTH. 1
OF OFFENCES AGAINST GOD AND RELIGION.
IN the present chapter we are to enter upon the detail of the several species of crimes and misdemesnors, with the punishment annexed to each by the laws of England. It was observed in the beginning of this book % that crimes and misdemesnors are a breach and violation of the public rights and duties, owing to the whole community, considered as a community, in it's social aggregate capacity. And in the very entrance of these commentaries b it was shewn, that human laws can have no concerns with any but social and relative duties; being intended only to regulate the conduct of man, considered under various relations, as a member of civil society. All crimes ought therefore to be estimated merely according to the mischiefs which they produce in civil society c: and, of consequence, private vices, or breach of mere absolute duties, which man is bound to perform considered only as an individual, are not, cannot be, the object of any municipal law; any farther than as by their evil example, or other pernicious effects, they may prejudice the community, and thereby become a species of public crimes. Thus the vice of drunkenness, if committed privately and alone, is beyond the knowlege and of course beyond
a See page 5. c Beccar. ch. 8.
b See Vol. I, page 123, 124.
1. Before we enter upon the subject of the ensuing chapter, it will I apprehend be proper to say a few words respecting the cognizance of crimes and misdemeanours; for which we must refer the student to the appendix to this volume, note A.
the reach of human tribunals: but if committed publicly, in the face of the world, it's evil example makes it liable to temporal censures2. The vice of lying, which consists (abstractly taken) in a criminal violation of truth, and therefore in any shape is derogatory from sound morality, is not however taken notice of by our law, unless it carries with it some public inconvenience, as spreading false news; or some social injury, as slander and malicious prosecution, for which a private recompence is given 3. And yet drunkenness and malevolent lying are in foro conscientiae as thoroughly criminal when they are not, as when they are, attended with public inconvenience. The only difference is that both public and private vices are subject to the vengeance of eternal justice; and public vices are besides liable to the temporal punishment of human tribunals.
On the other hand, there are some misdemesnors, which are punished by the municipal law, that have in themselves nothing criminal, but are made unlawful by the positive constitutions of the state for public convenience. Such as poaching, exportation of wool, and the like. These are naturally no offences at all; but their whole criminality consists in their disobedience to the supreme power, which has an undoubted right, for the well-being and peace of the community, to make some things unlawful, which are in themselves indifferent. Upon the whole therefore, though part of the offences to be enumerated in the following sheets are offences against the revealed law of God, others against the law of nature, and some are offences against neither; yet in a treatise of municipal law we must consider them all as deriving their particular guilt, here punishable, from the law of man.
Having premised this caution, I shall next proceed to distribute the several offenses, which are either directly or by conse-
2. L. V. 1794, c. 138. Accordant.
3. Formerly there was a law in Virginia which substituted the punishment of ducking upon the offender, if a married woman, in lieu of pecuniary damages against the husband, in actions of slander. L. V. 1662, c. 5. Purvis 107.
quence injurious to civil society, and therefore punishable by the laws of England, under the following general heads: first, those which are more immediately injurious to God and his holy religion; secondly, such as violate and transgress the law of nations; thirdly, such as more especially affect the sovereign executive power of the state, or the king and his government; fourthly, such as more directly infringe the rights of the public or commonwealth; and, lastly, such as derogate from those rights and duties, which are owing to particular individuals, and in the preservation and vindication of which the community is deeply interested.
First then, of such crimes and misdemesnors, as more immediately offend Almighty God, by openly transgressing the precepts of religion either natural or revealed; and mediately by their bad example and consequence, the law of society also; which constitutes that guilt in the action, which human tribunals are to censure.
I. Of this species the first is that of apostacy, or a total renunciation of Christianity, by embracing either a false religion, or no religion at all. This offence can only take place in such as have once professed the true religion. The perversion of a Christian to Judaism, paganism, or other false religion, was punished by the emperors Constantius and Julian with confiscation of goods d; to which the emperors Theodosius and Valentinian added capital punishment, in case the apostate endeavoured to pervert others to the same iniquity e. A punishment too severe for any temporal laws to inflict upon any spiritual offence: and yet the zeal of our ancestors imported it into this country; for we find by Bracton f, that in his time apostates were to be burnt to death. Doubtless the preservation of Christianity, as a national religion, is, abstracted from it's own intrinsic truth, of the utmost consequence to the civil state: which a single instance will sufficiently demonstrate. The belief of a future state of rewards and punishments, the entertaining just ideas of the moral attri-
d Cod. l. 7. 1 f l. 3, c. 9.
e Ibid 6
butes of the Supreme Being;, and a firm persuasion that he superintends and will finally compensate every action in human life, (all which are clearly revealed in the doctrines, and forcibly inculcated by the precepts, of our saviour Christ) these are the grand foundation of all judicial oaths; which call God to witness the truth of those facts, which perhaps may be only known to him and the party attesting: all moral evidence, therefore, all confidence in human veracity, must be weaked by apostacy, and overthrown by total infidelity g. Wherefore all affronts to Christianity, or endeavours to depreciate it's efficacy, in those who have once professed it, are highly deserving of censure. But yet the loss of life is a heavier penalty than the offence, taken in a civil light, deserves: and taken in a spiritual light, our laws have no jurisdiction over it. This punishment, therefore, has long ago become obsolete; and the offence of apostacy was for a long time the object only of the ecclesiastical courts, which corrected the offender pro salute animae. But about the close of the last century, the civil liberties to which we were then restored, being used as a cloke of maliciousness, and the most horrid doctrines subversive of all religion being publicly avowed both in discourse and writings, it was thought necessary again for the civil power to interpose, by not admitting those miscreants h to the privileges of society, who maintained such principles as destroyed all moral obligation. To this end it was enacted by statute 9 and 10 W. III, c. 32, that if any person educated in, or having made profession of, the Christian religion, shall by writing, printing, teaching, or advised speaking, deny the Christian religion to he true, or the holy scriptures to be of divine authority, he shall upon the first offence be rendered incapable to hold any office or place of trust; and, for the second, be rendered incapable of bringing any action, being guardian, executor, legatee, or purchasor of lands, and shall suffer three years imprisonment without bail. To give room, however, for repentance, if, within four months after the first
g Utiles esse opiniores has, quis negat, cum intelligat, quam multa firmentur jurejurando; quantae salutis sunt foederum religiones; quam multos divini supplicit metus a scelere revocarit; quamque sancta sit societas civiam inter ipsos, Diis immortalibus interpositis tum judicius tum testibus? Cic. de LL. ii. 7.
h Mescroyantz, in our antient law books is the name of unbelievers.
conviction, the delinquent will, in open court, publicly renounce his error, he is discharged for that once from all disabilities4.
II. A second offence is that of heresy, which consists not in a total denial of Christianity, but of some of it's essential doctrines, publicly and obstinately avowed; being defined by sir Matthew Hale, "sententia rerum divinarum humano sensu excogitata, palam docta et pertinaciter defensa i." And here it must also be acknowleged that particular modes of belief or unbelief, not tending to overturn Christianity itself, or to sap the foundations of morality, are by no means the object of coercion by the
i 1 Hal. P. C. 334.
4. "RELIGION, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence, and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and it is the duty of all to practice Christian forbearance, love, and charity, towards each other." Bill of Rights, Art. 16.
"No man shall be compelled to frequent, or support any religious worship, place, or ministry, whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but all men shall be free to profess, and by argument, to maintain their opinions in matters of religion, and the same shall in no wise diminish, enlarge, or affect their civil capacities." L. V. 1785, Edition of 1794, c. 20.
"It is hereby further declared by the general assembly of Virginia, that the law entitled an act for establishing religious freedom, is a true exposition of the principles of the bill of rights and constitution." L. V. 1798, c. 9, Sessions acts.
"No religious test shall ever be required as a qualification to any office or public trust under the United States." C. U. S. Art. 6.
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Amendments to C. U. S. Art. 3.
Here we may repeat the words of the celebrated Montesquieu: "In things that prejudice the tranquility, or security of the state, secret actions are subject to human jurisdiction. But in those which offend the Deity, where there is no public action, there can he no criminal matter; the whole passes betwixt man and God, who knows the measure and time of his vengeance." Spirit of Laws, b. 12, c. 4.
civil magistrate. What doctrines shall therefore be adjudged heresy, was left by our old constitution to the determination of the ecclesiastical judge; who had herein a most arbitrary latitude allowed him. For the general definition of an heretic given by Lyndewode k, extends to the smallest deviations from the doctrines of holy church "haercticus est qui dubitat de fide catholica, et qui negligit servare ea, quae Romana ecclesia statuit, seu servare decreverat." Or, as the statute 2 Hen. IV, c. 15, expresses it in English, "teachers of erroneous opinions, contrary to the faith and blessed determinations of the holy church." Very contrary this to the usage of the first general councils, which defined all heretical doctrines with the utmost precision and exactness. And what ought to have alleviated the punishment, the uncertainty of the crime, seems to have enhanced it in those days of blind zeal and pious cruelty. It is true that the sanctimonious hypocrisy of the canonists went at first no farther than enjoining penance, excommunication, and ecclesiastical deprivation, for heresy; though afterwards they proceeded boldly to imprisonment by the ordinary, and confiscation of goods in pios usus. But in the mean time they had prevailed upon the weakness of bigoted princes, to make the civil power subservient to their purposes, by making heresy not only a temporal, but even a capital offence: the Romish ecclesiastics determining, without appeal, whatever they pleased to be heresy, and shifting off to the secular arm the odium and drudgery of executions; with which they themselves were too tender and delicate to intermeddle. Nay, they pretended to intercede and pray, on behalf of the convicted heretic, ut citra mortis periculum cententia circa eum moderatur l: well knowing at the same time, that they were delivering the unhappy victim to certain death. Hence the capital punishments inflicted on the antient Donatists and Manichaeans, by the emperors Theodosius and Justinian m: hence also the constitution of the emperor Frederic, mentioned by Lyndewode n, adjudging all persons, without distinction, to be burnt with fire, who were convicted of heresy by the ecclesiastical judge. The same emperor, in another constitution o, ordain-
k cap. de haereticis. m Cod. l. 1. tit. 5. o Cod. 1, 5, 4.
l Decretal. l. 5. t. 40, c. 27. n c. de haereticis.
ed 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 for good catholics to seise and occupy the lands, and utterly to exterminate the heretical possessors. And upon this foundation was built that arbi