treme want of food or clothing may justify stealing either, to relieve Dis 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 tacit confession 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 its doctrine is agreeable not only to the sentiments of many of the wisest ancients, particularly Cicero (s), who holds that "suum cuique inoommodum 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 [*32] is hungry, he shall restore *seven-fold, and shall give all the sub stance 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 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 hardship. An advantage which is wanting in many states, particularly those which are democrati cal; 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 counte nance 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 excel [33] lence and perfection of the person; which extend 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 (15). We are therefore, out of reverence and decen (o) de jure b. & p. 1, 2, c. 2. (p) I.. of Nat. and N. 1. 2, c. 6. (9) Britton. c. 10. Mirr. c. 4, 16. (r) 1 Hal. P. C. 54. (s) de off. 1. 3. c. 5. (15) In the U. S. the highest officer has no such exemption. cy, 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 (v), to which I must refer the reader. CHAPTER III. OF PRINCIPALS AND ACCESSARIES (1). 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 accessary. T. 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). Which presence need not always be an actual immediate standing by, within sight or hearing of the fact; but there may be also a constructive presence, as when one commits a robbery or murder, and another keeps watch or guard at some convenient distance (b) (2). (v) Book I. ch. 7. page 244. (a) 1 Hal. P. C. 615. (1) See in general, 1 Chitty Crim. L. 255 to 275. 3 ed. id. index, tit. Accessaries, and tit. Principals. (2) Where a person stood outside a house, to receive goods which a confederate was stealing within it, he was held a principal, 1 Ry. & M. C. C. 96; and in the case of privately stealing in a shop, if several are acting together, some in the shop and some out of it, and the property is stolen by the hands of one of those who are in the shop, those who are Outside are equally, guilty as principals, Russ. & R. C. C. 343; and if several combine to forge an instrument, and each executes by Limself a distinct part of the forgery, and they are not together when the instrument is completed, they are nevertheless all guilty as principals. Russ. & R. C. C. 446. But where a man incites a guilty agent to commit murder, and he is neither actually nor constructively present, the perpetrator is the principal felon, and the former only an accessary before the fact. 1 Hale, 435. 3 Inst. 49. Persons not present nor sufficiently near to give assistance, are not principals. Russ. & R. C. C. 363. 421. Mere presence is not sufficient to constitute the party a principal, without he aids, assists, and abets. Thus if two are fighting and a third comes by and looks on, but assists neither, he is not guilty if homicide ensue, (b) Foster, 350. Hale, 439. 2 Hawk. c. 29. s. 10; but if seve ral come with intent to do mischief, though only one does it, all the rest are principals in the second degree. 1 Hale, 440. 2 Hawk. c. 29. s. 8. So, if one present command another to kill a third, both the agent and contriver are guilty. Id.; and see I Hale, 442, 3, 4. 2 Hawk. c. 29. s. 8. In a late singular case it was held, that if a man encourage a woman to murder herself, and is present abetting her while she does so, such person is guilty of murder as a principal; and that if two encourage each other to murder themselves to. gether, and one does so, but the other fails in the attempt upon himself, he is a principal in the murder of the other; but if it be uncertain whether the deceased really killed herself, or whether she came to her death by accident be fore the moment when she meant to destroy herself, it will not be murder in either. Russ, & R. C. C. 523. Besides presence, and aiding and abetting the principal, there must be a participation in the felonious design, or at least the offence must be within the compass of the original inten tion, to constitute a principal in the second degree. Thus, if a master assaults another with malice prepense, and the servant being ignorant of his master's malignant design, takes part with him, the servant is not an abet tor of murder but manslaughter only. See I 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 its 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 [*35] committed in the absence of the murderer, by means which he had prepared beforehand, and which probably could not fail of their mischievous effect. As by laying a trap or pitfall for another, whereby he is killed letting out a wild beast, with an intent to do mischief, or inciting 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 accessary, that necessarily pre-supposing a principal: and the poison, the pitfall, the beast, or the madman, cannot be held principals, being only the instruments of death. As therefore he must be certainly guilty either as principal or accessary, and cannot be so as accessary, it follows that he must be guilty as princi pal, and if principal, then in the first degree; for there is no other criminal, much less a superior in the guilt, whom he could aid, abet, or assist (ƒ). II. An accessary is he who is not the chief actor in the offence, nor present at its performance, but is some way concerned therein, either before or after the fact committed. In considering the nature of which degree of guilt, we will, first, examine, what offences admit of accessaries, and what not: secondly, who may be an accessary before the fact: thirdly, who may be an accessary after it: and, lastly, how accessaries, considered merely as such, and distinct from principals, are to be treated. 1. And, first, as to what offences admit of accessaries, and what not. In high treason there are no accessaries, but all are principals: the same acts, that make a man accessary in felony, making him a principal in high treason, upon account of the heinousness of the crime (g). 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 accessaries before [36] the fact; since the *very advice and abetment amount to principai 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). (c) Kel. 52. (4; Foster, 349. (3 Inst. 138. Hale, 446. Russ. & R. C. C. 99. And in order to render persons liable as principals in the second degree, the killing or other act must be in pursuance of some original unlawful purpose, and not collateral to it. I East, P. Č. 358. The punishment of principals in the second degree, is in general the same as principals in the first degree. Leach, 64. 4 Burr. 2076. But where the act is necessarily personal, as in stealing privately from the person, he whose hand took the property can alone be (f) 1 Hal. P. C. 617. 2 Haw. P. C. 315. guilty, under the statute, and aiders and abet ters are only principals in a simple larceny. 1 Hale, 529. So on an indictment on the sta tute against stabbing, only the party who actually stabs is ousted of clergy. 1 Jac. I. c. 8. Í East, P. C. 348. 350. 1 Hale, 468. Principals, in the second degree, may be arraigned and tried, before the principal in the first degree has been outlawed or found guilty. 1 Hale, 437. 4 Burr. 2076. 2 Hale, 223. Co. 67. In petit treason, murder, and felonies with or without benefit of clergy (3), there may be accessaries: except only in those offences, which by judgment of law are sudden and unpremeditated, as manslaughter and the like; which therefore cannot have any accessaries before the fact (i). So too in petit larceny, and in all crimes under the degree of felony, there are no accessaries 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 misdemeanors. It is a maxim, that accessorius sequitur naturam sui principalis (1): and therefore an accessary 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 accessary only to the crime of murder; though, had he been present and assisting, he would have been guilty as principal of petit treason, and the stranger of murder (m). 2. As to the second point, who may be an accessary 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 accessary: 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 [*37] does it in the absence of A, now B is principal, and A is accessary in the murder. And this holds, even though the party killed be not in rerum naturâ 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 accessary 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 accessary before the fact. It is likewise a rule, that he who in any wise commands or counsels another to commit an unlawful act, is accessary to all that ensues upon that unlawful act; but is not accessary to any act distinct from the other. And 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 accessary (4). But if A commands В to burn C's house; and he, in so doing, commits a robbery; now A, though accessary to the burning, is not accessary to the robbery, for that is a thing of a distinct and unconsequential nature (q) (5). But if the felony com (3) This seems to apply merely to felonies, where, by the law, judgment of death ought regularly to ensue, I Hale, 618. 1 Burn, 5. The crime of petit treason is now abolished. See ante 16, note (15). Petit treason is also abolished in New-York. (2 R. S. 657.) (4) This must be understood to have refer ence to a case where the command is to beat violently. Hale, 442, 3, and 4, 1 East, P. C. 257, 8, and 9. Kel. 109, 117. See note 8. p. 27. (5) The crime must be of the same com (n) 1 Hal. P. C. 616 (g) 1 Hal. P. C. 617. plexion, and not on a different object than that to which the agent was instigated. Thus if A. commands B. to burn a certain house with which he is well acquainted, and he burns another, or to steal a certain horse, and he steals a different one A. will not be liable to be indicted as accessary to the crimes committed, because B. acting in contradiction to the commands of A., and that knowingly, it is on his part a mere ineffectual temptation, and the specific crime he planned was never complet ed. Plowd. 475. Hawk. B. 2, c. 29, § 18. 1 Hale, 617. Com. Dig. Justices, T. 1 Fost 360 mitted 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 accessary 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 circum stance (r). 3. An accessary after the fact may be, where a person, knowing a felony to have been committed, receives, relieves, comforts, er assists the felon (s). Therefore to make an accessary ex post facto, it is in the first place requisite that he knows of the felony committed (t) (6). 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 accessary. [*38] 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 accessary 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 accessary 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 accessary 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. (7) all such receivers are made accessaries (where the principal felony admits of accessaries) (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 (8). In France such receivers are punished with death: and the Gothic constitutions distinguished also three sorts of thieves, " unum qui consilium daret, alterum qui contractaret, tertium qui receptaret et occuleret; pari poenae singulos obnoxios (y)." The felony must be complete at the time of the assistance given; else it makes not the assistant an accessary. 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 accessary to the homicide; for, till death ensues, there is no felony committed (2). But so strict (r) 2 Hawk. P. C. 316. (a) 1 Hal. P. C. 618. (t) 2 Hawk. P. C. 319. (u) Ibid. P. C. 317, 318. (6) He must know that the felon is guilty; and it seems to be the better opinion, that an implied notice is not sufficient. Hale, 323 and 622. In New-York, one who conceals an offender, knowing that he has commited a felony, or gives him any other aid that he may avoid arrest, trial, conviction, or punishment, is an accessary after the fact, and no others are. (2 R. S. 699.) (7) 5 Ann. c. 31, is repealed by 7 Geo. IV. 6. 31, as relating to this subject, and 4 Geo. 1. e. 11, as to this offence, is repealed by 7 and 8 Geo. IV. c. 27: and now by 7 and 8 Geo. IV. |