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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 uccessorius sequitur naturam sui principalis (?): 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 conimit 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 B 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 (9) (5). But if the felony com
(n) 1 Hal. P. C. 616
(q) i Hal. P. C. 617. (3) This seems to apply merely to felonies, plexion, and not on a different object than that where, by the law, judgment of death ought io which the agent was instigated. Thus if regularly to ensue, i Hale, 618. | Burn, 5. A. commands B. to burn a certain house with The crime of petit treason is now abolished. which he is well acquainted, and he burns an. See ante 16, note (15).
(i) I Hal. P. C. 615.
other, or to steal a certain horse, and he steals Petit treason is also abolished in New York. a different one A. will not be liable to be in(2 R. S. 657.)
dicted as accessary to the crimes committed, (4) This inust be understood to have refer. because B. acting in contradiction to the comence to a case where the command is to beat mands of A., and that knowingly, it is on his violently. I Hale, 442, 3, and 4, 1 East, P. part a mere ineffectual temptation, and the C. 257, 8, and 9. Kel, 109, 117. See note 8. specific crime he planned was never complet
ed. Plowd. 475. Hawk. B. 2, c. 29,5 18 (5) 'The crime must he of the same com- Hale, 617. Com. Dig. Justices, T. I Fort 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 (1) (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 (u). 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 mis. demeanor, 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 3 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. declard felons without benefit of clergy (8). In France such receivers are punished with death: and the Gothic constitutions distinguished also three sorta of thieves, unui 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 homi. cide ; for, till death ensues, there is no felony committed (2). But so strict fr) 2 Hawk. P. C. 316.
(w) I Hal. P. C. 620. (5) I Hal. P. C. 618.
(2) Foster, 73. (1) ? Hawk. P. C. 319.
(y) Stiernhook, de jure Goth. 1. 3. c. ! (0) ) Hal. P. C. 620, 621.
(6) He must know that the felon is guilty; c. 29, such receivers may be indicted as ac. anil it seems to be the better opinion, that an cessaries after the fact, or for a substantiva implied notice is not sufficient. | Hale, 323 felony; and in the latter case, whether tho and 622.
(u) Ibid. P. C. 317, 318.
(2) 2 Hawk. P. c. 320.
principal shall or shall not have been previous. In New York, one who conceals an offender, ly convicted, or shall not be amenable to jus. knowing that he has commited a felony, or tice, and are liable to transportation or impri. Rives him any other aid that he may avoid arrest, trial, conviction, or punishment, is an ac- (8) By 7 and 8 Geo. IV. c. 29, $ 16, this cessary after the fact, and no others are. (2 offence is punishable by transportation for life, R. S. 699.)
or for any terin not less than seven years, or (7) 5 Ann. c. 31, is repealed by 7 Geo. IV. by imprison dent not exceeding four years, 6.31, as relating to this subject, and 4 Geo. I. with public or private whippings for male c. 11, as to this offence, is repealed by 7 and 8 offenders. Ge. IV. c. 27: and now by 7 and 8 leo. IV.
is the law where a felony is actually complete, in order to do effectual jus. tice, that the nearest relations are not suffered to aid or receive one another (9). If the parent assists his child, or the child the parent, if the brother receives the brother, the master his servant, or the servant his masa ter, or even if the husband relieves his wise, who have any of them committed a "felony, the receivers become accessaries ex post [*39] facto (2). But a seme-covert cannot become an accessary 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 (a).
4. The last point of inquiry is, how accessaries are to be treated, considered distinct from principals. And the general rule of the ancient law (borrowed from the Gothic constitutions) (6) is this, that accessaries 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 tò receive the same punishment (el). Why then, it may be asked, are such elaborate distinctions made between accessaries and principals, is 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 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 : accessaries after the fact being still allowed the benefit of clergy in all cases, except horse-stealing (e) and stealing of linen from bleaching-grounds (V)(10): which is denied to the principals and accessaries before the fact, in many cases; as, among others, in petit treason, murder, robbery, and wilful burning (g). And perhaps is a distinction were constantly to be made between the punishment of principals and accessaries, even before the fact, the latter to be treated with a liule 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 accom- [*40 ) plices, by reason of the difference of his punishment (h). 3. Because formerly no man could be tried as accessary till after the principal was convicted, or at least he must have been tried at the same time with
(z) 3 Inst. 108. 2 Hawk. P. C. 320.
le) Stat. 31 Eliz. c. 12.
(9) That is (as stated in the last section) if to any felony punishable under this Act, 15 done in order to prevent an arrest, &c. cept only a receiver of stolen.property,) sheik (10) See ante 38 in notis.
on conviction be liable to be imprisoned for By st. 9 Geo. IV. c. 31, accessaries before any terin not exceeding two years; and every he fact in cases of murder, are rendered person who shall aid, abet, counsel, or procuro equally guilty with the principal.
ihe commission of any misdemeanor punisha By st. 7 and 8 Geo. IV. c. 29, it is enacted, able under this Act, shall be liable to be in in the 61st section, “ That in every case of dicted and punished as a principal offender." felony punishable under this Act, every prin- And by 7 and 8 Geo. IV.c. 30, a similar encipal in the second degree, and every acces. actment is made in 9 26 to the above. sary before the fact, shall be punishable with These three Acts incorporate nearly every death, or otherwise in the same manner as the offence of murder, selony, and misdemeanor principal in the first degree is by this Act pu. mentioned and adverted to by she earned Mshable ; and every accessary after the fact Commentator. Vol. II.
him? though that law is now much altered, as will be shewn more fully
, in its proper place (11).(4. Because, ihough a man be indicted as acces. sary 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 accessary 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 (i). But it is clearly held, that one acquitted as principal may be indicted as an accessary 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 accessary will appear to be highly necessary; though the punishment is still much the same with regard to principals, and such accessaries as offend before the fact is committed (12).
OF OFFENCES AGAINST GOD AND RELIGION (1).
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 law 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 (6) it was shewn that human laws can hare no concern with any but social and relative duties, being intended only :o 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 peroicious effects, they may prejudice the community, and thereby becomes 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 vio(i) I Hal. P. C. 625, 626.
(b) See book I. pages 123, 124.
2 Hawk. P. C. 373.
(a) See page 5.
(c) Beccar. ch.8.
(11) See post, 323.
wards be tried for the same offence under the (12) But if the principal felony is commit. Other jurisdiction. sed on the high seas, then the accessary shall See ante 38 in notis. be tried like the principal under the 28 Hen. (1) See in general, 1 East P. c. I to 36. VIII. c. 15, wl.ich provides for the trial of fe. 2 Chitty's Cr. L. 13 to 34. und id 14. as to onies upon the high seas; but no one tried libels, &c. against the christian raligion, &e. zor u offence by one jurisdiction shall aftor.
"lation of truth, and therefore in any *shape is derogatory from [*421 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 recompense is given. 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 jus tice; and public vices are besides liable to the temporal punishment 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 inconvenience; 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 offonces 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 sovereign executive power of the state, or the king and his government; fourthly, such as more directly infringe the rights of the [ *43 ] 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 huinan tribunals are to censure.
1. Of this species the first is that of apostasy, or a total ronunciation 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 (el); to which the emperors Theodosius and Valentinian dded capital punishment, in case the apostate endeavoured to pervert others to ihe same iniquity (e) : a punishment too severe for any temporal aws to inflict upon any spiritual offence; and yet the zeal of our ances 1.) Cod. 1. 7. 1.
(e) Ibid. 6.
(2) See reference ante 11. note 1.