NECESSITY, in Law, as it implies a defect of will, excuses from the guilt of crimes. See CRIME.
Compulsion and inevitable necessity 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 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 legislator establishes iniquity by a law, and commands the subject to do an act contrary to religion or found morality. How far this excuse will be admitted in foro conscientie, or whether the inferior in this case is not bound to obey the divine rather than the human law, it is not our business to decide; though, among the casuists, it is believed the question 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 its merciless sifter, 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 nor a servant are excused from the commission of any crime, whether capital or otherwise, by the command or coercion of the parent or master; though in some cases the command or authority of the husband, either express or implied, will privilege the wife from punishment, even from capital offences. And therefore, if a woman commit theft, burglary, or other civil offences against the law 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. This doctrine is at least 1000 years old in this kingdom, being to be found among the laws of King Ina the West Saxon. And it appears, that among the northern nations on the continent, this privilege extended to any woman transgressing in concert with a man, and to any servant that committed a joint offence with a freeman: the male or freeman only was punished, the female or slave dismissed; procul dubio quod alterum libertas, alterum necessitas impelleret. But (besides that, in our law,
which is a stranger to slavery, no impunity is given to Necessity. 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 dye, 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. In treason also (the highest crime which a member of society can, as such, be guilty of), no plea in coverture shall excuse the wife; no presumption of the husband's coercion shall extenuate her guilt: 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 misdemeanours 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 government 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. 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 female sole.
2. Another species of compulsion or necessity is what our law calls duress per minas; 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 misdemeanours, 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 vorum constantem, non timidum et meticulosum," as Bracton expresses it in the words of the civil law. 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. This, however, seems only, or 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. But in such a case he is permitted to kill the assailant; for there the law of nature, and self-defence its 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 without 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 choosing one, he chooses the least pernicious
Necessity. 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 choosing 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.
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 clothing may justify stealing either, to relieve his present necessities. And this both Grotius and Puffendorff, together with many other of the foreign jurists, hold in the affirmative; maintaining by many ingenious, humane, and plausible reasons, that in such cases the community of goods, by a kind of tacit concession of society, is revived. And some even of our lawyers have held the same; 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. And this its doctrine is agreeable not only to the sentiments of many of the wisest ancients, particularly Cicero, who holds, That suam cuique incommodum ferendum est, potius quam de alterius commodis detrahendum; but also to the Jewish law, as certified by King Solomon himself: "If a thief steal to satisfy his soul when he is hungry, he shall restore sevenfold, and shall give all the substance of his house:" which was the ordinary punishment for theft in that kingdom. And this is founded upon the highest reason: for men's properties would be under a strange insecurity, if liable to be invaded according to the wants of others; of which wants no man can possibly be an adequate judge but the party himself who pleads them. In England especially, there would be a peculiar impropriety in admitting so dubious an abuse: for by the 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. The case of a stranger is, by the way, the strongest instance put to Baron Puffendorff, 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 hardship. An advantage which is wanting in many states, particularly those which are democratical: and these have in its stead introduced and adopted, in the body of
the law itself, a multitude of circumstances tending to alleviate its rigour. But the founders of our constitution thought it better to vest in the crown the power of pardoning particular objects of compassion, than to countenance and establish theft by one general undistinguishing law.