tions: 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 committed in the absence of the murderer, by means which he had [*35] 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 accessory, 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 accessory, and cannot be 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 in 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 abet[*36] ment amount to principal 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. () In petit treason, murder and felonies, with or without benefit of clergy, (2) there may be accessories: except only in those offences which by (c) Kel. 52. (d) Foster, 319. 1 Hai. P. C. 613. (e) 3 Inst. 138. (h) Foster, 342. (f) 1 Hal. P. C. 617. 2 Haw. P. C, 613. whether the deceased really killed herself, or whether she came to her death by accident before the moment when she meant to destroy herself, it will not be murder in either. Russ. and 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 intention, 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 himi, the servant is not an abettor of murder but manslaughter only. See 1 Hale, 446; Russ. and 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. 1 East. P. C. 358. The punishment of principals in the second degree is in general the same as principals in the first degree. 1 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 guilty, under the statute, and aiders and abetters are only principals in a simple larceny. 1 Hale, 529. So on an indictment on the statute against stabbing, only the party who actually stabs is ousted of clergy. 1 Jac. I, c. 8; 1 East, P. C. 348, 350; 1 Hale, 468.] () [This seems to apply merely to felonies where, by the law, judgment of death ought regularly to ensue. 1 Hale, 618; 1 Burn, 5. The crime of petit treason is now abolished ] 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; (2) 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, qua 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 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 make 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 absence of A, now B is principal and A is accessory in the murder. And this holds, even though the [*37] party killed be not in rerum natura 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. (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. (3) 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. (7) (4) 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 (i) 1 Hal. P. C. 615. (n) 1 Hal. P. C. 616. (k) Ibid, 613. (7) 3 Inst. 139. (m) 2 Hawk. P. C. 315. (3) [This must be understood to have reference to a case where the command is to beat violently. 1 Hale, 442-444; 1 East, P. C. 257-259; Kel. 109, 117.] 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. See Commonwealth v. Drew, 3 Cush. 279; Hays v. State, 13 Mo. 246; State v. Bell, 5 Port. 365; Harmony v. Mitchell, 13 How. 115; State v. Bugbee, 22 Vt. 32; Curtis v. Knox, 2 Denio, 341. (4) [The crime must be of the same complexion, 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 accessory to the crime 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 completed. Plowd. 475; Hawk. b. 2, c. 29, § 18; 1 Hale, 617; 1 Fost. 360.] See, also, Regina v. Taunton, 9 C. and P. 309. Where the offence committed is not the percise 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 offence 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, wilfully and knowingly commit a felony of another kind?" Fost. 372. As to accessories in general, see 1 Bish. Cr. L. ch. 36; 1 Arch. Cr. L. ch. 1; 1 Russ on Cr. ch. 2. 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 nave been committed, receives, relieves, comforts, or assists the felon. (s) Therefore, to make an accessory ex post facto, it is in the first place requisite that he knows of the felony committed. (t) (5) 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 [*38] 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 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. (e) 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. (6) 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 pæne 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. (7) 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 his wife, who have any of them committed a *felony, the receivers become accessories [*39] 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 (r) 2 Hawk. P. C. 316. (5) See 1 Hale, P. C. 323, 622; Whart. Cr. L. § 146; 1 Bish. Cr. L. § 483. (6) These statutory provisions are repealed, and the death penalty abolished. The offence is now punished under statute 24 and 25 Vic. c. 96. (7) [That is (as stated in the last section), if done in order to prevent an arrest, &c.] 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. () 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 Iris accomplices, by reason [*40] of the difference of 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) (8) 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. (9) (f) Stat. 31 Eliz. c. 12. (i) Beccar. c. 37. (g) Stat. 18 Geo. II, c. 27. (h) 1 Hal. P. C. 615. (k) 1 Hál. P. C. 625, 626. 2 Hawk. P. C. 373. Foster, 361. (8) [The authorities of Hawkins and Foster are both against this reasoning and the princi ple of the law is certainly with them, because the offences are specifically different, and require different evidence to prove them.] (9) By statute 24 and 25 Vic. c. 94, an accessory before the fact to a felony may be in dicted, 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. and R. 491; Commonwealth v. Knapp, 10 Pick. 477; State v. Duncan, 6 Ired. 98; Holmes r. 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, Mich. 71. VOL. II.-41 321 CHAPTER IV. OF OFFENCES AGAINST GOD AND RELIGION. cies IN the present chapter we are to enter upon the detail of the several ST 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 retations, 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 [*42] 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 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 vengeance of eternal justice; and public vices are besides liable to the temporal punishments of human tribunals. On the other hand; there are some misdeameanors 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 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 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 genera. 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 [*43] 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. (a) See page 5. b) See book I, pages 123, 124. (c) Beccar, c. 8. |