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an accessory after the fact is he who, knowing a crime to be committed, receives, relieves, comforts, or assists the criminal.
In treason, there are no accessories either before or after the fact; for all consenters, aiders, abettors, and knowing receivers and comforters of traitors, are themselves principals. As to the course of proceeding, however, those who actually committed the treasonable fact, should be tried before those who consented or aided : for, in a contrary course of proceeding, this inconvenience might follow, that those who, in other crimes, would be principals in the second degree, might be convicted, and afterwards those who, in other crimes, would be principals in the first degree, might be acquitted. This most evidently would be absurd.
In trespass, and in crimes not felonious, all those who, in felonious crimes, would be accessories before the fact, are deemed principals ; and those who, in felonious crimes, would be accessories after the fact, are not considered as having committed any offence.
The distinction between accessories after and accessories before the fact, and between accessories and principals, ought to be carefully and accurately preserved : for in many cases, there is a real difference between the degrees of guilt, and a proportioned difference ought to be established, where it is not already established, between the degrees of punishment.
The distinction between principals in the first and those in the second degree, though preserved in theory, and sometimes in the course of proceedings on the trial, is, nevertheless, lost universally in the scale of punishments. He who watches, at a distance, to prevent a surprise, which might defeat the execution of a concerted plan, is punished equally with him, who, in the execution of it, uses the assassinating poignard, not necessary, not generally intended, but deemed solely by him who uses it as, in some measure, contributing to the principal and the concerted purpose. In such an-immense disparity of guilt, there ought to be a disparity of punishment.
1. Hale, P. C. 618.
e Id. ibid.
These reflections receive support from considerations of utility, as well as from those of intrinsick justice. When, a number confederate in a common enterprise, whose supposed advantages are to be equally participated, it is their effort to share only an equal proportion of the danger, as they are to receive only an equal proportion of the gain. This effort, instead of being countenanced by measuring the same punishment to all who act any part in the concerted enterprise, should be counterworked by graduating the punishment according to the part which each has acted. If the principal, who personally perpetrates the crime-for there is generally a capital part to be acted by some one-is distinguished, in punishment, from those who are only present, aiding and abetting the common adventure; this will increase the difficulty of finding one, who will act this capital and conspicuous part; as his danger will become greater in proportion to the greater severity of his punishment.
Besides ; where there is society in danger, there is society in exertion; for even in criminal enterprises the social nature is not lost. Let one be selected, solitary, to perpetrate a crime and to suffer a punishment, in the
pain and guilt of which none are to be involved but him. self; he will no longer be buoyed up on a fluid surrounding him at an equal level; and as it sinks down from him, he will sink down to it. Among associates in crimes, the law should sow the seeds of dissension.
Misprision consists in the concealment of a crime, which ought to be revealed. €
By a law of the United States, misprision of treason is punished with a fine not exceeding a thousand dollars, and imprisonment not exceeding seven years ;8 and misprision of felony, with imprisonment not exceeding three years, and a fine not exceeding five hundred dollars.
The receiving of goods, known to be stolen, is a high misdemeanor at the common law. By a law of the United States, it is punished in the same manner as larceny. i
Theft-bote, or the receiving again of one's goods which have been stolen, or other amends, upon an agreement not to prosecute, was formerly held to render one an accessory to the larceny: it is now punished only with fine and imprisonment. But merely to receive the goods again is no offence, unless some favour be shown to the thief.
On the subject, concerning principals and accessories, as well as on the former, concerning the incapacity of guilt, I cannot now enter into a detail: suffice it here, as it sufficed there, to mention the general principles which will govern and illustrate the particular instances.
f 3. Ins. 36. 4. Bl. Com. 119.
gLawsU. S..con. 2. sess. C. 9.3.2.
b Id. s. 6.
i Id. s. 17.
i 1. Haw. 125.
OF THE DIRECT MEANS USED BY THE LAW TO PREVENT
SHOULD now, according to my general plan,"point out the different steps, prescribed by the law, for apprehending, detaining, trying, and punishing offenders.” But it will be proper first to consider a short, though a very interesting, title of the criminal law--the direct means which it uses to prevent offences.
These are, security for the peace; security for the good behaviour ; and the peaceful, but active and authoritative interposition of every citizen, much more of every publick officer of peace, to prevent the commission of threatened, or the completion of inchoate crimes.
1. Security for the peace consists in being bound, alone, or with one or more sureties, in an obligation for an ascertained sum, with a condition subjoined that the