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. (0) 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 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. (2) But if A commands B to burn C's house; and he, in so doing, commit 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) (3) 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 its 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. (8) Therefore, to make an accessory ex post facto, it is in the first place requisite that he knows of the felony committed. (t) (4) 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 [*38] 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 gaol with clothes or other necessaries, is no offence; for the crime imputable to this species of accessory is the hinderance 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 misdemeanor, and made not the receiver accessory to the theft, because he received the goods only, and not the felon: (w) 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), (x) 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 clergy. (5) In France such (u) Ibid. 317, 318. (0) Dyer, 186. (x) Foster, 73. (2) It is no excuse for the party beating in such a case, that the command was by a master to his servant, by a parent to his child, or by any other person occupying a position of authority; if the beating was unwarranted by law, both are criminally responsible. Commonwealth v. Drew, 3 Cush., 279; Hays v. State, 13 Mo.. 246; State v. Bell, 5 Port., 365; Mitchell v. Harmony, 13 How., 115; State v. Bugbee, 22 Vt., 32; Curtis v. Knox, 2 Denio, 341. (3) See Regina v. Taunton, 9 C. and P., 309. Where the offense committed is not the precise one planned and advised. Mr. Justice Foster says the proper criterion to determine whether the adviser is involved in the legal guilt or not, is, "Did the principal commit the offense he stands charged with under the influence of the flagitious advice; and was the event, in the ordinary course of things, a probable consequence of that felony? or did he, following the suggestions of his own wicked heart, willfully and knowingly commit a felony of another kind?" Fost., 372. As to accessories in general, see 1 Bish. Cr. L., 7th ed., ch. 47 and 48; 1 Arch. Cr. L., ch. 1; 1 Russ. on Cr., ch. 2. (4) See 1 Hale. P. C. 323, 622; Whart. Cr. L. § 146; 1 Bish. Cr. L., 7th ed., §§ 692, 693. (5) These statutory provisions are repealed, and the death penalty abolished. The offense is now punished under statue 24 and 25 Vic. c. 96. VOL. II-38 297 receivers are punished with death: and the Gothic constitutions distinguished also three sorts of thieves, "unum qui consilium daret, alterum qui contrectaret, tertium qui receptaret et occuleret; pari pœnæ singulos obnoxios." (y) The felony must be complete at the time of the assistance given; else it makes not the assistant 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. (z) 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. (6) 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 [*39] his wife, who have any of them committed a *felony, the receivers become accessories ex post facto. (a) 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 therefore she is not bound, neither ought she, to discover her lord. (b) 4. The last point of inquiry is, how accessories are to be treated, considered distinct from principals. And the general rule of the ancient law (borrowed from the Gothic constitutions), (c) is this, that accessories shall suffer the same punishment as their principals: if one be liable to death, the other is also liable: (d) as, by the laws of Athens, delinquents and their abettors were to receive the same punishment. (e) 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 harboring the robber. 2. Because, though by the ancient 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 (f) and stealing of linen from bleaching-grounds: (g) which is denied to the principals and accessories before the fact, in many cases, as, among others, in petit treason, murder, robbery, and willful burning. (h) 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 [*40] his punishment. (i) 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 shown more fully in its proper place. 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 nearly allied, and therefore an acquittal of the guilt of one may be an acquittal of the other also. (k) (7) But it is clearly held, that one acquitted as a 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 its 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. (8) CHAPTER IV. OF OFFENCES AGAINST GOD AND RELIGION. IN the present chapter we are to enter upon the detail of the several species of crimes and misdemeanors, with the punishments annexed to each by the laws of England. It was observed in the beginning of this book, (a) that crimes and misdemeanors are a breach and violation of the public rights and duties owing to the whole community, considered as a community, in its social aggregate capacity. And in the very entrance of these Commentaries (b) it was shown that human laws can have no concern 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 knowledge, and of course beyond the reach of human tribunals: but if committed publicly, in the face of the world, its evil example makes it liable to temporal censures. The vice of lying, which consists (abstractedly 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 in[*42] convenience, as spreading false news; or some social injury, as slander and malicious prosecution, for which a private recompense is given. And yet drunkenness and malevolent lying are, in foro conscientiæ, 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 venge (a) See page 5. (b) See book I, pages 123, 124. (c) Beccar. c. 8. (8) By statute 24 and 25 Vic., c. 94, an accessory before the fact to a felony may be indicted, tried, and punished as if he were a principal felon; and, by section 2, whoever shall counsel, procure or command any other person to commit a felony, shall be guilty of felony, and may be punished either as accessory before the fact, or for a substantive felony, and whether the principal felon is previously convicted, or is amenable to justice or not. And, by section 3, accessories after the fact to a felony may be indicted and convicted of a substantive felony, whether the principal felon shall or shall not be previously convicted, or amenable to justice or not. In a number of the United States there are similar modifications of the common law relating to this subject. For the rule, in the absence of such statutes, see Stoops v. Commonwealth, 7 S. & R., 491; Commonwealth v. Knapp, 10 Pick., 477; State v. Duncan, 6 Ired., 98; Holmes v. Commonwealth, 25 Penn. St., 221. As to charging accessories with a substantive felony, under statutes permitting that course, see State v. Weston, 9 Conn., 527; Noland v. State, 19 Ohio, 131; Shannon v People, 5 Mich., 71. ance of eternal justice; and public vices are besides liable to the temporal punishments of human tribunals. On the other hand, there are some misdemeanors 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 the 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 were 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 offences, which are either directly or by consequence 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 soverign executive power of the state, or the [*43] 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 misdemeanors 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 apostasy, 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 inquity: (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 its 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 attributes 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 judical oaths; which call God to witness the truth of those facts, which perhaps may be only known to him and the party [*44] attesting: all moral evidence, *therefore, all confidence in human veracity, must be weakened by apostasy, and overthrown by total infidelity. (7) Wherefore all affronts to Christianity, or endeavours to depreciate its 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 (e) Ibid. 6. (d) Cod. 1, 7, 1. (f) 3, c. 9. (9) Utiles esse opiniones has, quis negat, cum intelligat, quam multa firmentur jurejurando; quanta salutis sint fæderum religiones; quam multos divini supplicii metus a scelere revocarit: quamque sancta sit societas civium inter ipsos, Diis immortalibus interpositis tum judicibus, tum testibus ? Ĉic. de L. L. i. 7. 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 apostasy was for along time the object only of the ecclesiastical courts, which corrected the offender pro salute animæ. But about the close of the last century, the civil liberties to which we were then restored being used as a cloak 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 Wm. 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 be 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 purchaser of lands, and shall suffer three years' imprisonment without bail. To give room, however, for repentance, if, within four months after the first conviction, the delinquent will in open court publicly renounce his error, he is discharged for that once from all disabilities. II. A second offence is that of heresy, which consists not in a total denial of Christianity, but of some of its essential *doctrines, publicly and obstinately avowed; being defined by Sir Matthew Hale, "sententia rerum [*45] divinarum humano sensu excogitata, palam docta et pertinaciter defensa.” (i) And here it must also be acknowledged 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 civil magistrate. What doctrine 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 deviation from the doctrines of holy church: "hæreticus est qui dubitat de fide catholica, et qui negligit servare ea, quæ 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 drudg ery 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 sententia circa eum moderatur: (1) well *knowing at the same time that they were delivering the unhappy victim to certain death. [*46] Hence the capital punishments inflicted on the ancient Donatists and Manichæans 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 (i) 1 Hal. P. C. 384. (h) Mescroyantz in our ancient law books is the name of unbelievers. (n) c. de hæreticis. |