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cessory 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 naturel. 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 it's execution is a mere collateral circumstance".
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. Therefore to make an accessory ex post facto, it is, in the first place, requisite that he knows of the felony committed'. 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 him!
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 cloaths or other necessaries, is no offence; for the crime imputable to this species of accessory is the hindrance of public justice, by assisting the felon to escape the vengeance of the law ". 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
[ 38 ]
q 1 Hal. P.C. 617.
2 Hawk. P.C. c. 29. $ 32. t 2 Hawk. P.C. c. 29. $ 26.
Ilal, P.C. 618.
1 Hal. P.C. 620, 621.
misdemesnor, and made not the receiver accessory to the theft, because he received the goods only, and not the felon": 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 "), and may be transported for fourteen years (1); 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. (2) In France such receivers are punished with death (3): and the Gothic constitutions distinguished also three sorts of thieves, “ unum 6 qui consilium daret, alterum qui contrectaret, tertium qui “ receptaret et occuleret; pari poenae singulos obnoxios *."
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 effectual justice, that the nearest relations are not suffered to aid or receive one another. 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 ” i Hal. P.C. 620.
* Stiernhook de jure Goth. l. 3. c.5. w Foster. 73.
y 2 Hawk. P.C. c. 29. $ 35.
(1) See post, 132.
(2) The part of this statute, which inflicts capital punishment, whether on principals or accessories, was repealed by the 51 6.3. C. 41., and transportation or imprisonment substituted. But even by the statute itself (s. 2.), the judge had a power given him of commuting the punishment for transportation.
(3) The general rule in the present French law is, that accessories before the fact are punished exactly as their principals ; and also such accessories after, as knowing the criminal pursuits of their principals, are in the habit of supplying them with places of assembly, or retreat. Receivers of stolen goods are classed among such accessories with this qualification, that as the offence of wrongful taking is punished with death, hard labour for life, and transportation, only when committed under certain circumstances, the receiver of goods taken under these circumstances must be proved to have known of them at the time of the receiving, in order to be subjected to those respective punishments. If this proof fails, the punishment is hard labour for a term of years. Code Penal. L. 2.
even if the husband relieves his wife, who have any of them committed a felony, the receivers become accessories ex post [ 39 ] facto? But a feme covert cannot become an accessory by the receipt and concealment of her husband; for she is presumed to act under his coërcion, and therefore she is not bound, neither ought she, to discover her lord.
4. The last point of inquiry is, how accessories are to be treated, considered distinct from principals. And the general rule of the antient 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: as, by the laws of Athens, delinquents and their abettors were to receive the same punishment ". 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 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 : accessories after the fact being still allowed the benefit of clergy in all cases, except horse-stealing and stealing of linen from bleaching-groundsf: which is denied to the principals and accessories before the fact, in many cases; as, among others, in petit treason, murder, robbery, and wilful burn. inge. 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 his punishment ". (5) 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 it's 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!. (6) 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. * Beccar. c. 37.
i i Hal. P.C. 625. 626. 2 Hawk. P.C. c.35. $11. Foster. 361.
(5) It is impossible, however, not to feel, that in many instances the conduct of the accessory before the fact is much more criminal and mischievous than that of the principal, and therefore merits a severer punishment. The legislature has recently acted under this impression, and by 3G.4. c. 38. has enacted that in all cases in which accessories before the fact to any grand larceny, are by the law within benefit of clergy, and liable only to a fine and one year's imprisonment, the court may at its discretion, instead of that punishment, sentence them to transportation for seven years, or imprisonment with or without hard labour to the extent of three years. And for the more speedy conviction of such offenders, the same statute enacts that all accessories before the fact to burglary, robbery, or grand larceny, may be prosecuted for a misdemesnor, and punished with two years' imprisonment and hard labour, though their principals have not been convicted, and whether they are or are not amenable to justice.
(6) The authorities of Hawkins and Foster are both against this reasoning, and the principle of the law is certainly with them, because the of fences are specifically different, and require different evidence to prove them.
CHAPTER THE FOURTH.
OF OFFENCES AGAINST GOD AND
the several species of crimes and misdemesnors, with the punishments annexed to each by the laws of England. It was observed in the beginning of this book ", that crimes and misdemesnors are a breach and violation of the public rights and duties owing to the whole community, considered as a community, in it's 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 society. All crimes ought therefore to be estimated merely * according to the mischiefs which they produce in civil society": 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, it's 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 [ 42 ] is derogatory from 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
Beccar. ch. 8. See Vol. I. pag. 123, 124.
a See pag.5.