in these terms; but, in Massachusetts,1 Maine,2 Missouri,3 Illinois, Ohio, Iowa, and probably some of the other States, the accessory before the fact is in law, as in reason, either actually or substantially a principal. So he is in England, since the statute of 11 & 12 Vict. c. 46.8 In Massachusetts, an earlier enactment having provided, that, "if any person shall aid, assist, abet, counsel, hire, command, or procure any person to commit the crime, &c., he is and shall be considered as an accessory before the fact to the principal offender or offenders, and being thereof convicted shall suffer the like punishment as is by law assigned for the crime to the commission of which he shall be so accessory;" the court held, that this did not in any way impair the common law distinction between principal and accessory, and so did not refer at all to persons aiding and abetting at the fact, as principals of the second degree. Moreover statutes like these do not supersede the necessity of proving the guilt of the principal; for, in the nature of things, a man cannot be holden for procuring an act to be done, or for receiving the doer, knowing of the act, unless it were in fact done.10

1 R. S. c. 133, § 2, as to the construction of which see The State v. Ricker, 29 Maine, 84. As to the earlier law in Massachusetts, see Commonwealth v. Knapp, 9 Pick. 496.

2 The State v. Ricker, 29 Maine, 84.

3

Loughridge v. The State, 6 Misso. 594.

Baxter v. People, 3 Gilman, 368; Brennan v. People, 15 Ill. 511, 516.

5 Noland v. The State, 19 Ohio, 131.

Bonsell v. United States, 1 Greene, Iowa, 111.

'As to North Carolina, see The State v. Groff, 1 Murph. 270; The State v. Goode, 1 Hawks, 463.

8 Reg. v. Manning, 2 Car. & K. 887, 903.

• Commonwealth v. Knapp, 9 Pick. 496. And see ante, § 86.

10 Simmons v. The State, 4 Ga. 465.

[503]

II. Accessories before the Fact.

§ 472. The term accessory is properly used only in speaking of felony, as already mentioned. But in treason and misdemeanor there are offenders standing toward the act in the position sustained by the accessory in felony; and our inquiries under the present and following sub-titles of this chapter relate to such offenders also. The region of accessories before the fact is shown on our Diagram of Crime, at § 441, by BC OP. According to our usual order, we shall consider the matter as regards, First, Felony (a b h g); Secondly, Treason (B Cba); Thirdly, Misdemeanor (g h O P).

§ 473. First; as to Felony. An accessory before the fact is one whose will contributes 2 to another's felonious act,3 committed while too far himself from the act to be a principal. The legal distinction between the accessory before and principal rests solely in authority; for it is without foundation either in reason or the ordinary doctrines of the law. The general rule in our jurisprudence, civil and criminal, is, that what one does through another's agency he does in point of law himself.5 And, even in felonies, the common law makes no distinction in the punishment, between a principal, and an accessory before the fact, or indeed after the fact; the crime of each of them being felony, of which the penalty was originally death. Moreover, as a question of morals, there

1 Ante, § 467.

2 Ante, § 264.

3 Ante, § 458.

5

Ante, § 460.

Broom Leg. Max. 2d ed. 643; Co. Lit. 258 a. "The principle of common law, Qui facit per alium, facit per se, is of universal application both in criminal and civil cases." Hosmer, C. J., in Barkhamsted v. Parsons, 3 Conn. 1, 8.

2 Hawk. P. C. Curw. Ed. p. 440, § 11; Foster, 343, 359; 4 Bl. Com. 39; ante, § 455.

are many circumstances in which we attach more blame to the accessory before the fact than to his principal: as where a husband.commands his wife, or a master his servant, to do for his benefit a thing criminal; which thing, in his absence,2 is reluctantly performed through constraint of fear or affection, overpowering an inferior or subject mind. How this distinction, then, came into the law, can only be conjectured; probably it originated in the same confused legal apprehension from which sprang the now exploded distinction between principals and accessories at the fact. Having, however, become established as a technical rule, though destitute of reason, it is beyond the control of the courts.4 our judges usually permit it to extend no further than compelled by the authorities; and so, where a statute in New York provided, that "all suits, informations, and indictments, for any crime or misdemeanor, murder excepted," should be brought within three years after the commission of the offence; the court held, that the word "murder" compre. hended accessories before the fact as well as principals. "Writers on criminal law," said Marcy, J., "make some difference between the offence of a principal and that of an accessory, but it is chiefly as to the order and mode of proceeding against them." 5

Yet

§ 474. We sometimes contemplate an accessory as one who employs or excites, as a first mover, another to commit a felony, which he does. But it is not important in whose mind the criminal thought originated; if in the principal's, a man may become an accessory before the fact to him, by

'See Rex v. Morris, 2 Leach, 4th ed. 1096.

2 Ante, § 275, 278; post, § 474.

3 Ante, § 456.

* See ante, § 26, 27, 29, 337. For some unsatisfactory reasons assigned by. Blackstone, on the distinction, see 4 Bl. Com. 39, 40.

5

People v. Mather, 4 Wend. 229, 255. Possibly the relation to the context of these words in the statute might have somewhat influenced the

decision.

encouraging him in it. The rule as to the criminal intent applies to both principal and accessory alike; and this rule we discussed in previous chapters.2 There must be, in the first place, a principal: 3 in the second place, the accessory must not be so near him as to be able to render any assistance; because, if he is so able, he will be himself a principal.4 Also the thing counselled must be done; else the counselling will amount only to an indictable attempt.

§ 475. If, therefore, before the birth of a child, a person advises the mother to murder it when born, and she does so, the adviser is an accessory before the fact in the murder. And if several persons plan the uttering of a forged order, where the uttering is a statutory felony, and one of them utters it in the absence of the rest, he only is a principal, while the others are accessories. A servant, on a Saturday afternoon, let a man into his master's house to rob it; concealed the man there till Sunday morning; and then, in pursuance of the arrangement, left. The man, after the servant's departure, stole money; and it was ruled, that he was rightly indicted as a principal in the larceny, and the servant as accessory before the fact. If the indictment had been for the burglary of breaking into the house, both would have been principals.9

1 Keithler v. The State, 10 Sm. & M. 192.

2 Ante, § 264 et seq.

3 See ante, § 457, 458, 467, 468.

See ante, § 460, 467.

1 Hale P. C. 622.

Parker's case, 2 Dy. 186, pl. 2; 2 Hawk. P. C. Curw. Ed. p. 443, § 18. Rex v. Badcock, Russ. & Ry. 249; Rex v.

East P. C. 974; Rex v. Else, Russ. & Ry. 142.

Soares, Russ. & Ry. 25, 2

And see Rex v. Stewart,

Russ. & Ry. 363. These English cases were decided under the erroneous apprehension, that the offence of uttering was felony. and note.

Reg. v. Tuckwell, Car. & M. 215.

Rex v. Jordan, 7 Car. & P. 432; ante, § 456, 457.

See Vol. II. § 249

§ 476. Where one employs a second responsible person to procure a third responsible person to commit a felony, and it is committed; in other words, becomes accessory before the fact to an accessory before the fact; the first one is an accessory also to the third; that is, to the principal.1 "And it will be sufficient, even though the accessory does not name the person to be procured, but merely directs the agent to employ some person." 2

§ 477. Manslaughter is an offence which does not, in its nature, admit of accessories before the fact, though it does of principals of the second degree; because, when the killing

is of previous malice, it is murder.

But murder of the sec

ond degree admits of accessories before the fact.5 Also a wife may be an accessory before the fact in a crime of the husband.6

§ 478. By the English law, as it stood when this country was settled, larceny was divided into grand and petit; the former being committed where the goods stolen were over twelve pence in value, the latter, where they were of the value of twelve pence or under. This distinction was in accordance with a statute passed in the reign of Edward I.;7 which statute appears to have been only confirmatory of the earlier common law.8 "In these prosecutions," says Mr. East," the valuation ought to be reasonable; for when the statute of Westm. 2, c. 25, was made, silver was but 20d. an

1 Rex v. Cooper, 5 Car. & P. 535; McDaniel's case, Foster, 121, 125; 4 Bl. Com. 37; 2 Hawk. P. C. Curw. Ed. p. 436, § 1. And see Reg. v. Williams, 1 Den. C. C. 39; post, § 492.

2 Parke, J., in Rex v. Cooper, supra. See Rex v. Giles, 1 Moody, 166. The State v. Coleman, 5 Port. 32.

Bibithe's case, 4 Co. 43b; Goose's case, Sir F. Moore, 461; 2 Hawk.