4

ounce, and at the time Lord Coke wrote it was worth 5s., and it is now higher." 1 The principal legal difference between grand and petit larceny was in the punishment; both were felonies; but the latter never exposed the convicted person to judgment of death. The penalty for it was "only to be whipped, or some such corporal punishment," 2 understood afterward to be imprisonment,3 together with the same forfeiture of goods as in grand larceny. Petit larceny is now unknown in England; having been elevated to the higher degree by Stat. 7 & 8 Geo. 4, c. 29, § 2, which abolished the distinction.5 In this country, the distinction has been recognized as having a common law existence, and in some of the States it seems fully to prevail; but, in consequence of statutes, some of which were suggested by that of Westminster above referred to, it has in many of the States become unimportant, if indeed it is not entirely obliterated.

§ 479. But although petit larceny is felony, yet, in consequence of the smallness of the offence, it has no accessories. Those who, in grand larceny, would be accessories before the fact, are principals in petit larceny; those who would be accessories after, are not, it has been held, deemed criminal

8

1 2 East P. C. 736.

21 Hale P. C. 530.

82 East P. C. 737; 3 Inst. 218.

* Ante, § 448.

5 2 Russ. Crimes, Grea. Ed. 1, 82.

The State v. Larumbo, Harper, 183; The State v. Daveis, 3 McCord, 187; The State v. Spurgin, 1 McCord, 252; The State v. Wood, 1 Const. N. s. 29; The State v. Bennett, Const. 693; Ward v. The People, 3 Hill, N. Y. 395, 6 Hill, N. Y. 144; The State v. Goode, 1 Hawks, 463; The State v. Barden, 1 Dev. 518; Carpenter v. Nixon, 5 Hill, N. Y. 260; The State v. Murphy, 8 Blackf. 498.

See ante, § 320-324, 444; The State v. Goode, 1 Hawks, 463; Chancellor Walworth in Ward v. People, 6 Hill, N. Y. 144; Lasington's case, Cro. Eliz. 750.

The State v. Braden, 1 Dev. 518; 2 East P. C. 743; Ward v. People, 3 Hill, N. Y. 395, 6 Hill, N. Y. 144.

at all in petit larceny.1 How it is of small sums under the late English enactment, just referred to, or under American statutes abolishing or modifying the general distinction between grand and petit larceny, is a question upon which we appear to have no adjudications.

§ 480. Secondly; as to Treason. The English law admits of accessories in petit treason, as well as in felonies;2 but there is no petit treason in the United States. In high treason, the only kind of treason known here, there are, say all the books, no accessories either before or after the fact; for those who would be accessories in felony and petit treason are, in high treason, principal traitors. But when we come to look at the law as actually adjudged, we shall see, in sections further on, that this proposition is by no means true as to accessories after the fact. And even as to accessories before the fact, we are about to see, that it has been disputed in its necessary consequences; though these pages will admit it to be true both abstractly and as developed in its consequences.

§ 481. The doctrine of the books, let us remember, is, that in treason there are no accessories; but that they who in felony would be such are in treason principal offenders.5 Let us see what this doctrine implies, as concerns accessories

1 The State v. Goode, 1 Hawks, 463.

2 4 Bl. Com. 36; 1 East P. C. 338; 1 Hawk. P. C. Curw. Ed. p. 105, § 5 ; Anonymous, Dalison, 16.

* Ante, § 447.

1 Hale P. C. 233, 237, 613; 3 Inst. 16, 138; Foster, 341; 4 BI. Com. 35, 36; 1 Hawk. P. C. Curw. Ed. p. 15, § 39; 2 Ib. p. 437, § 1; 1 Hume Crim. Law, 2d ed. 525, 526, note, where the Scotch law appears to be the same; Charge on Law of Treason, 2 Wallace, Jr. 134, 137; United States v. Hanway, 2 Wallace, Jr. 139, 195; Anonymous, Dalison, 16; 1 East P. C. 93, 178, 186; Reg. v. Tracy, 6 Mod. 30, 32; 12 Co. 81; Whitaker v. English, 1 Bay, 15; Chanet v. Parker, 1 Const. N. s. 333; Rex v. Bear, 2 Salk. 417, 1 Ld. Raym. 414; Somerville's case, 1 Anderson, 109.

5 Ante, § 480.

[BOOK IV. before the fact. It implies the right of the prosecuting power to treat them as having done the act. The indictment against them may mention the thing as performed through the agency of another; or it may omit this matter of agency, and leave the prosecutor, producing the proofs, to rely on the legal rule, that what one does by an agent is to be regarded as done by himself;1 either form of allegation according with the established practice in all other pleadings, civil2 and criminal. That such is the only true meaning which this doctrine can have, is plain; because the distinction between the accessory before the fact and his principal, in felony, is merely in the form of the allegation, and in the order of the trial; while, as we have seen,1 the accessory would be a principal but for a technical rule of the old common law, introduced therein by a blunder, against sound reason, and against the general teachings of the common law itself in both civil. and criminal jurisprudence.

§ 482. The authorities seem to settle also, that the allegation in the indictment against one who has procured a treason may be in form as above stated.5 But there is a loose expression by Lord Hale, of his private opinion, not based on authority, to the effect, that, in the order of trial, the procurer should not be convicted except after or with the person who did the act. This expression of Lord Hale's has been

1 Ante, § 473.

Brucker v. Fromont, 6 T. R. 659; Heys v. Heseltine, 2 Camp. 604; ́Collis v. Emett, 1 H. Bl. 313, 321; Feltmakers v. Davis, 1 B. & P. 98, 102; 2 Chit. Plead. 117, note; Lawes on Assumpsit, 110, 111.

3

Reg. v. Tracy, 6 Mod. 30, 32; United States v. Morrow, 4 Wash. C. C. 733; and the other cases cited post, § 483.

5

Ante, § 473.

1 Hale P. C. 214, 238; 1 Gab. Crim. Law, 895%; 1 East P. C. 127; Reg.

v. Tracy, 6 Mod. 30, 32. See United States v. Burr, 4 Cranch, 470, 496498.

2 Hale P. C. 223. So he also says, that principals of the first degree should be tried before principals of the second degree, a distinction which, we have already seen, ante, § 456, was long since exploded. 1 Hale P. C. 613.

-

echoed by later writers: 1 and, on the trial of Aaron Burr before Marshall, C. J., for the high treason of levying war against the United States, the counsel for the defendant argued that the English law is so; the counsel for the United States, quite against the interest of the prosecution, conceded the point; and the learned Chief Justice, in his opinion, fell into the current; not, however, deciding absolutely the question.2 The mistake, which apparently it is, no doubt arose, in the minds both of Lord Hale and of those who followed him, from not distinguishing the procurer of the treason from him who afterward receives the traitor. And it is believed, that, in spite of the doubts created by Burr's case, a man may, according to the law of this country, commit treason without being present at the overt act; and may be prosecuted in advance of those who were present.

This is

Hawkins,

1 Foster, 346; 1 East P. C. 100, 101; 1 Gab. Crim. Law, 889. however, lays down the true doctrine; but one of his editors, Leach, following Lord Hale, sets him wrong. 2 Hawk. P. C. 6th ed. c. 29, § 2, Curw. Ed. p. 437, § 1, and note.

2 United States v. Burr, Burr's Trial, passim, 4 Cranch, 470, 504. This case was one of universal notoriety, and of immense interest and importance; on each side of which were employed several very eminent lawyers. We need not therefore be surprised, when we find it falling in some measure within the general rule, taught us by observation, that, in proportion as a case attracts the popular eye, and in proportion as the number of legal gentlemen acting together is increased, it increases in flashes of eloquence and the effervescence of genius, but diminishes in true legal argument and learning. The reason is, that no one of the half-dozen or dozen lawyers on a side feels any particular responsibility for those parts of the performance which, with the honor following, are necessarily shared in common; while each one is impelled by his natural instincts to lift his individual light as high as possible, in the presence of a community better able to judge of eloquence than of law. Besides, a man who knows he is not answerable for the whole of even a subdivision, cannot well bring his mind to so minute and exact a study of the entire case, as is often indispensable to his seeing any one object, in any one part of it, correctly and clearly. This may be an infirmity of his nature; but it is inherent in the human mind, and no integrity, station, calling, learning, can rise entirely superior to its influence. See post, § 487.

* Charge on Law of Treason, 2 Wallace, Jr. 134, 137; United States v.

not adopting the English law of constructive treasons, concerning the adoption of which there is difference of opinion; but it is asserting the rule, as to actual treasons, which would equally prevail if there were no English law in existence.1 Still the question has received very little judicial discussion, and therefore our proposition is not strongly fortified by authority.

§ 483. Thirdly; as to Misdemeanor. The authorities concur, that, in misdemeanor, there are no accessories either in name or the order of the prosecution. When a man therefore stands in such a relation to a misdemeanor, as in felony makes one an accessory before the fact, if what he does is of sufficient magnitude to be noticed by the law,2 he is to be treated as a principal; the indictment charges him as such, and, unless the pleader chooses, it does not mention that the act was performed by the hand of another; and he may be proceeded against either in advance of the doer, or afterward, or jointly with him. Consequently, if one employs another

Hanway, 2 Wallace, Jr. 139, 195; Ex parte Bollman, 4 Cranch, 75.

And

see Throgmorton's case, 1 Dy. 98, pl. 56. Judge Tucker most ferociously combats this doctrine. See 4 Bl. Com. Tucker Ed. Appendix, 49, and at various other places.

1 See ante, § 473. The following remark of Lord Coke is as sound in common sense as in law: " All agree, that procurers of such treason to be done, before the fact done, if after the fact be done accordingly, in case of treason, are principals; for that they are participes criminis in the very act." 3 Inst. 138.

Ante, § 320-324, 442-444.

2 Hawk. P. C. Curw. Ed. p. 437, § 2; The State v. Cheek, 13 Ired. 114 ; The State v. Westfield, 1 Bailey, 132; Williams v. The State, 12 Sm. & M. 58; United States v. Morrow, 4 Wash. C. C. 733; Floyd v. The State, 7 Eng. 43; Curlin v. The State, 4 Yerg. 143; Reg. v. Clayton, 1 Car. & K. 128; Rex v. Dixon, 3 M. & S. 11, 14; Commonwealth v. McAtee, 8 Dana, 28; The State v. Lymburn, 1 Brev. 397; Reg. v. Tracy, 6 Mod. 30, 32; Reg. v. Greenwood, 2 Den. C. C. 453, 9 Eng. L. & Eq. 535; Reg. v. Moland, 2 Moody, 276; United States v. Mills, 7 Pet. 138; Rex v. Douglas, 7 Car. & P. 644; Rex v. Jackson, 1 Lev. 124; Uhl v. Commonwealth, 6 Grat. 706; Commonwealth v. Gillespie, 7 S. & R. 469, 478.