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ing a principal: and the poison, the pitfall, the beast, or the madman, can. not be held principals, being only the instruments of death. As therefore he must be certainly guilty either as principal or accessory, and cannot bo so as accessory, it follows that he must be guilty as principal, 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. (f)

II. An accessory 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 accessories, and what not: secondly, who may be an accessory before the fact: thirdly, who may be an accessory after it: and, lastly, how accessories, considered merely as such, and distinct from principals, are to be treated.

1. And, first, as to what offences admit of accessories, and what not. In high treason there are no accessories, but all are principals: the same acts, that make a man accessory 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 accessories before the fact; since the very advice and abetment amount to principal treason. But [ 36 ] 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) In petit treason, murder and felonies with or without benefit of clergy, there may be accessories; except only in those offences, which by judgment of law are sudden and unpremeditated, as manslaughter and the like; which therefore cannot have any accessories before the fact. (i) So too in petit larceny, and in all crimes under the degree of felony, there are no accessories 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 apon 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 misdemesnors. It is a maxim, that accessorius sequitur naturam sui principalis: (1) and therefore an accessory 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 accessory 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 accessory 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 made him an accessory: 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 does it in the

f 1 Hal. P. C. 617. 2 Haw. P. C. 315.
i 1 Hal. P. C. 615.

h Foster. 342.

g 3 Inst. 188. 1 Hal. P. C. 613.
k Ibid. 613.
13 Inst. 139.

n 1 Hal. P. C. 616.

m 2 Hawk. P. C. 315.

(3) See last note.

[37] absence of A, now B is principal, and A is accessory 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 accessory 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 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. But if A commands B to burn C's house; and he, in so doing, commits 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) 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 felo ny to have been committed, receives, relieves, comforts, or assists the fe lon. (s) Therefore to make an accessory ex post facto, it is in the first place requisite that he knows of the felony committed. (t) 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 sup[38] port 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 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 misdemesnor, 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;5 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. 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." (x)

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w 1 Hal. P. C. 620.

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q 1 Hal, P. C. 617.

t 2 Hawk. P. C. $19.

v 1 Hal. P. C. 620, 621.

r 2 Hawk. P. C. 316.

u 2 Hawk. P. C. 317, 318.

z Foster, 73. x Stiernhook de jure Goth, 1. 3. c. 5.

(4) An implied notice will not suffice. 1 Hale, 325. 622. 3 P. Wms. 496.

(5) See 3 Geo. IV. c. 28. and see more upon this subject in p. 152.

(6) But now clergy is restored by 61 Geo. III. c. 41. and transportation or imprisonment may bo inflicted; see post, 182.

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. (y) But so strict is the law where a felony is actually complete, in order to do effec. tual justice, that the nearest relations are not suffered to aid or receive one another. If the parent assists his child, or the child the parent, if the bro ther receives the brother, the master his servant, or the servant his master, or even if the husband relieves his wife, who have any of [39] them committed a felony, the receivers become accessories ex post facto. (z) 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. (a)

4. The last point of inquiry is, how accessories are to be treated, considered distinct from principles. And the general rule of the ancient law (borrowed from the Gothic constitutions) (b) is this, that accessories 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 to receive the same punishment. (d) Why then, it may be asked, are such elaborate distinctions made between accessories and prin. cipals, 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 ac. tual robbery being quite a different accusation from that of harbouring the robber. 3. 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 (e) and stealing of linen from bleaching-gronds: (f)" which is denied to the principals and accessories before the fact, in many cases; as, among others, in petit treason, murder, robbery, and wilful burning. (g) 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 [ 40 ] than that of his accomplices, by reason of the difference of his punishment. (h) 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 shewn 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 a matter of some doubt, whether, if a man be acquitted as principal, he can be afterwards indicted as accessory before the fact; since

y 2 Hawk. P. C. 320. z 3 Inst. 108. 2 Hawk. P. C. 320.
b See Stiernhook. ibid.

d Pott. Antiq. b. 1. c. 26. e Stat. 31 Eliz. c. 12.
g 1 Hal. P. C. 615.

c 3 Inst. 188.

a 1 Hal. P. C. 621.

f Stat. 18 Geo. II. c. 27.
h Beccar. c. 37.

(7) Clergy is restored for this offence by 51 Geo. III. c. 41.
(8) As to where and when accessories are to be tried, see post, 323.

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 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."



In the present chapter we are to enter upon a detail of the several spe cies 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 misdemesnors are a breach and violation of the public rights and duties owing to the whole community, considered as a commu. nity, in its social aggregate capacity. And in the very entrance of these Commentaries, (b) it was shewn 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 so ciety. 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

i 1 Hal. P. C. 625, 626. 2 Hawk, P. C. 373. Foster. 361.
a See pag. 5.
b See Book 1. pag. 123, 124.

c Beccar. ch. 8.

(9) By the 3 Geo. IV. c. 38. s. 3. after reciting that children and others are often induced to commit thefts by the persuasion, instigation, or command of wicked and evil-disposed persons, who not being present, aiding and assisting in the commission of such thefts, frequently escape the punishment which so mischievous an offence demands, it it enacted, that in all cases wherein accessories before the fact to grand larceny are within the clergy, and liable to a fine and one year's imprisonment only, they may, instead of such punishment, be transported for seven years, or imprisoned, with or without hard labour, for not exceeding three years. And by sect. 4. of the same act, if any person or persons shall counsel, hire, procure, or command any other person or persons to commit any burglary, robbery, or larceny whatsoever, of the degree of grand larceny, then and in any such case (except where the person or persons actually committing any such felony as aforesaid shall have been actually convicted thereof), the person or persons so counselling, hiring, procuring, or commanding as aforesaid, shall be held and deemed guilty of, and may be prosecuted for a misdemeanor, and, being convicted thereof, shall be liable to be imprisoned only, or to be imprisoned and kept to hard labour, for any term not exceeding two years, although the principal felon be concealed or be conveyed away, or be not before convicted of any such felony as aforesaid, and whether he, she, or they be amenable to justice or not; provided such offender, after conviction under this act, shall not afterwards for the same offence be punished, or be liable to be punished, as an accessory before the fact, if the principal be afterwards convicted. Chitty. (1) See in general, 1 East P. C. 1 to 36. 2 Chitty's Cr. L. 13 to 34, and id. 14. as to libels, &c. against the christian religion, &c.


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, (ab. stractedly taken) in a criminal violation of truth, and therefore in any shape is derogatory from sound morality, is not however taken notice [42] of by our law, unless it carries with it some public inconvenience, as spreading false news; or some social injury, as slander and malicious prose. cution, 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 justice; and public vices are besides liable to the temporal punishment of human tribunals.

On the other hand, there are some misdemesnors, 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 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 sovereign executive power of the state, or the king and his government; fourthly, such as more directly infringe the rights of the public commonwealth; and, [ 43 ]. 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. Constantine and Julian with confis. cation of goods; (d) to which the emperors Theodosius and Valentinian added capital punishment, in case the apostate endeavoured to pervert others to the same iniquity: (e) a punishment too severe for any temporal laws to inflict upon any spiritual offence; and yet the zeal of our ances

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