if, before justices of assize, or justices of oyer and terminer, any one shall draw a weapon upon any judge, though he strike not; or if he strike a juror or any other person, with or without a weapon; he shall lose his right hand, shall forfeit all his goods and all the profits of his lands during his life, and shall suffer perpetual imprisonment.1 11 Haw. 67. 3 Ins. 140. CHAPTER VIII. OF THE PERSONS CAPABLE OF COMMITTING CRIMES; AND OF THE DIFFERENT DEGREES OF GUILT INCURRED IN THE COMMISSION OF THE SAME CRIME. I HAVE now enumerated the crimes and offences known to the common law; and have stated their punishments, as inflicted either by that law, or by positive statutes of the United States or of Pennsylvania. When we come to a retrospect of this enumeration of crimes and punishments, we shall find that it is fruitful of much instruction, both of the speculative and of the practical kind. At present, let us consider who are capable and who are not capable of committing crimes. The general rule is, that all are capable of committing them. This general rule will be best illustrated and proved by ascertaining its exceptions. We have seen already, that the common law measures crimes chiefly by the intention. The intention necessarily supposes the joint operations of the understanding and the will. If the operation of either is wanting, no crime can exist. In idiots, at all times; in lunatics, except during their lucid intervals; and in infants, till they arrive at the age of discretion, the operation of the understanding is wanting. In ministerial officers, in wives, in persons under duress, the operation of the will is frequently presumed, by the law, to be wanting. In all such cases, the law imputes not criminality of intention. On this subject, I cannot now enter into a detail; suffice it to have mentioned the general principles, according to which the particular cases are classed and determined. In the commission of the same crime, the law often distinguishes different degrees of guilt. One may be a principal or an accessory: a principal may be so in the first or in the second degree: an accessory may be so before or after the fact. In some crimes, there are no accessories; in others, there are none before the fact. The part acted by a principal is coexistent with the commission of the crime: the part acted by an accessory is antecedent or subsequent to it. A principal in the first degree, is he who personally perpetrates the crime: a principal in the second degree, is he who is present, aiding and abetting it.1 An accessory before the fact is he who, though absent when the crime was committed, yet procured, counselled, commanded, or abetted the commission of it: 2 an acces sory after the fact is he who, knowing a crime to be con mitted, receives, relieves, comforts, or assists the criminal.3 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." 11 Hale, P. C. 615. Id. 618. 2 Id. ibid. ' Id. 613. 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.1 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. These reflections receive support from considerations of utility, as well as from those of intrinsic 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 11 Hale, P. C. 618. 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 himself; 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.1 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; and misprision of felony, with imprisonment not exceeding three years, and a fine not exceeding five hundred dollars. 3 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.a 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 favor be shown to the thief.5 1 Ins. 36. 4. Bl. Com. 119. 2 Laws, U S. 1. con. 2. sess. c. 9, s. 2. 41 Haw. 125. |