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officer, or a private person, who has the custody of another, permits him to escape, either by negligence, or, still more, by connivance; such officer or private person is culpable in a much higher degree. He has not the natural desire of liberty to tempt-he has official obligations to prevent it. If he permits it through negligence, he may be punished by fine: if he permits it by consent or connivance, his conduct is generally agreed to amount to the same kind of crime, and to deserve the same degree of punishment, as the crime of which the prisoner is guilty, and for which he is committed; whether trespass, or felony, or treason.
13. To break a prison was, at the common law, a capital crime, whatever might have been the cause, for which the person breaking it was committed. The reason assigned was-interest reipublicæ ut carceres sint in tuto. Seldom is there reason to complain of the common, as of a rigorous law. In this instance, however, there is unquestionably reason for complaint. The Mirrour complains of it as a hard law. Its severity was moderated by a statute made in the reign of Edward the second. By that statute, the breaking of a prison is not a capital crime, unless the party breaking it was committed for a capital crime. But to break prison, when lawfully committed for an inferiour offence, is a misdemeanor, and may be punished with fine and imprisonment. h
14. A rescue is the freeing of another, by force, from imprisonment, or from an arrest. In the person rescuing,
d 2. Haw. 138.
2. Haw. 128. 4. Bl. Com. 131.
e Id. 134. 1. Hale. P. C. 590.
8 Id. ib. St. 1. Ed. 2. s. 2.
it is generally the same crime, as a breach of prison would have been in the person breaking it. There is, however, one exception: a person, who is committed for treason and breaks the prison, is guilty of felony only: he, who rescues him, is guilty of treason. i
By a law of the United States, if any person rescue one-convicted of a capital crime, the person rescuing shall be punished capitally: if he rescue one committed, for, but not convicted of a capital crime, or one committed for, or convicted of a crime not capital; he shall be fined not exceeding five hundred dollars, and imprisoned not exceeding one year.
15. Offences against the courts, have always been considered as offences against the administration of justice. By the ancient common law before the conquest, to strike or to draw a sword in them, was a capital crime:* and the law still retains so much of the ancient severity, as only to exchange the loss of life for that of the offending limb.
If, while the courts in Westminster hall are sitting; or if, before justices of assize, or justices of oyer and terminer, any one shall draw a weapon upon any judge, though he strike not; or if he strike a juror or any other person, with or without a weapon; he shall lose his right hand, shall forfeit all his goods and all the profits of his lands during his life, and shall suffer perpetual imprison
i 2. Haw. 139. 140.
k 3. Ins. 140.
j 1. Cong. 2. sess. c. 9. s. 23.
1. Haw. 57. 3. Ins. 140.
OF THE PERSONS CAPABLE OF COMMITTING CRIMES ; AND OF THE DIFFERENT DEGREES OF GUILT INCURRED IN THE COMMISSION OF THE SAME CRIME.
HAVE now enumerated the crimes and offences known to the common law; and have stated their punishments, as inflicted either by that law, or by positive statutes of the United States or of Pennsylvania.
When we come to a retrospect of this enumeration of crimes and punishments, we shall find that it is fruitful of much instruction, both of the speculative and of the practical kind. At present, let us consider who are capable and who are not capable of committing crimes. The general rule is, that all are capable of committing them. This general rule will be best illustrated and proved by ascertaining its exceptions. We have seen already, that the common law measures crimes chiefly by the intention. The intention necessarily supposes the joint operations of the understanding and the will.
If the operation of either is wanting, no crime can exist. In ideots, at all times; in lunaticks, except during their lucid intervals; and in infants, till they arrive at the age of discretion, the operation of the understanding is wanting. In ministerial officers, in wives, in persons under duress, the operation of the will is frequently presumed, by the law, to be wanting. In all such cases, the law imputes not criminality of intention.
On this subject, I cannot now enter into a detail: suffice it to have mentioned the general principles, according to which the particular cases are classed and determined.
In the commission of the same crime, the law often distinguishes different degrees of guilt. One may be a principal or an accessory: a principal may be so in the first or in the second degree: an accessory may be so before or after the fact. In some crimes, there are no accessories; in others, there are none before the fact.
The part acted by a principal is coexistent with the commission of the crime: the part acted by an accessory is antecedent or subsequent to it.
A principal in the first degree, is he who personally perpetrates the crime: a principal in the second degree, is he who is present, aiding and abetting it. a
An accessory before the fact is he who, though absent when the crime was committed, yet procured, counselled, commanded, or abetted the commission of it:"