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IT having been shown in the preceding chapter what persons are, or 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 accessory.
1. A MAN may be principal in an offense in two degrees. a principal, in the first degree, is he that is that is the actor, or absolute perpetrator of the crime; and, in the second degree, he who is present, aiding, and abetting the fact to be done.1 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.2 And this rule has also other exceptions: for, in case of murder by poisoning, a man may be a principal felon, by preparing and laying the poison, or giving it to another (who is ignorant of its poisonous quality3) for that purpose; and yet not administer it himself, nor be present when the very deed of poisoning is committed.4 And the same reasoning will hold, with regard to other murders committed in the absence of the murderer, by means which he had prepared before-hand, 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 exciting 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.5
II. AN accessory is he who is not the chief actor in the offense, nor present at its performance, but is someway concerned therein, either before or after the fact committed. In considering the nature of which degree of guilt, we will, first, examine what offenses 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 principal, are to be treated.
1. AND, first, as to what offenses 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.6 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 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.7 In petit treason, murder, and felonies of all kinds, there may be accessories: except only in those offenses, which by judgment of law are sudden and unpremeditated, as manslaughter and the like; which therefore cannot have any accessories before the fact.8 But in petit larceny, or minute thefts, and all other crimes under the degree of felony, there are no accessories; but all persons concerned therein, if guilty at all, are principals:9 the same rule holding with regard to the highest and lowest offenses; though upon different reasons. In treason all are principals, propter odium delicti [because of the degree of offense]; in trespass all are principals, because the law, quae de minimis non curat [does not recognize slight matters], does not descend to distinguish the different shades of guilt in petty misdemeanors. It is a maxim, that accessorius sequitur naturam sui principalis [an accessory follows the condition of his principal]:10 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 petty treason, and the stranger of murder.11
2. As to the second point, who may be an accessory before the fact; Sir Matthew Hale12 defines him to be one, who being absent at the time of the crime committed, does yet procure, counsel, or command another to commit a crime. Herein absence is necessary to make him an accessory; for such procurance 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 hold, even though the party killed be not in rerum natura [in the nature of things (born)] 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.13 And it is also settled,14 that whoever procures 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 inconsequential nature.15 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, that he 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.16
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.17 Therefore, to make an accessory ex post facto [after the fact], it is in the first place requisite that he knows of the felony committed.18 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.19 So likewise to convey instruments to a felon to enable him to break jail, or to bribe the jailer to let him escape, makes a man an accessory to the felony. But to relieve a felon in jail with clothes or other necessaries, is no offense: for the crime imputable to species of accessory is the hindrance of public justice, by assisting the felon to escape the vengeance of the law.20 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 not the receiver accessory to the theft, because he received the goods only, and not the felon:21 but now by the statutes 5 Ann. c.31. and 4 Geo. I.c.11. all such receivers are made accessories, and may be transported for fourteen years. In France this is 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.”22 [“He who plans a robbery, he who commits it, and thirdly he who receives and conceals; each is liable to an equal degree.”]
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.23 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 his 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 ex post facto.24 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.25
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 constitutions26) is this, that accessories shall suffer the same punishment as their principals: if one be liable to death, the other is also liable:27 as, by the law of Athens, delinquents and their abettors were to receive the same punishment.28 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 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; which denied to the principals, and accessories before the fact, in many cases; as in petit treason, murder, robbery, and wilful burning.29 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 created 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.30 3. because formerly no man could be tried as accessory, till after the principal was convicted, or at least 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 counseling 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 offenses are frequently very near allied, and therefore an acquittal of the guilt of one may be an acquittal of the other also.31 But it is clearly held, that one acquitted as principal may be indicted as an accessory after the fact; since that is always an offense 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 a priori [beforehand].
NOTES
1. 1 Hal. P. C. 615.
2. Foster. 350.
3. Ibid. 349.
4. 3 Inst. 138.
5. 1 Hal. P.C. 617. 2 Hawk. P.C. 315.
6. 3 Inst. 138. 1 Hal. P.C. 613.
7. Foster. 342.
8. 1 Hal. P.C. 615.
9. Ibid. 613.
10. 3 Inst. 139.
11. 2 Hawk. P.C. 315.
12. 1 Hal. P.C. 615, 616.
13. Dyer. 186.
14. Foster. 125.
15. 1 Hal. P.C. 617.
16. 2 Hawk. P.C. 316.
17. 1 Hal. P.C. 618.
18. 2 Hawk. P.C. 319.
19. 2 Hawk. P.C. 317, 318.
20. 1 Hal. P.C. 620, 621.
21. 1 Hal. P.C. 620.
22. Stiernhook de jure Goth. l.3. c. 5.
23. 2 Hawk. P.C. 320.
24. 3 Inst. 10 § 2 Hawk. P.C. 320.
25. 1 Ibid. P.C. 621.
26. See. Stiernhock. Ibid.
27. Inst. 188.
28. Pott. antia. b.1.c.20.
29. 1 Hal. P.C. 615.
30. Beccar. c. 37.
31. 1 Hal. P.C. 625, 626. 2 Hawk. P.C. 373. Foster. 361.
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