Workmen's advocate., 1888-12-08

the crime; in all crimes under the de- | gree of felony there are no accessories, | but all principals, because the law does not descend to distinguish the different | shades of guilt in petty mlsdemeanors. | So the same rule holds good with regard to the highest and lowest otfenses; in murder and felony there are accessOr- ies
 This rule was manifoldly changed in this country, as to treason as well as to felony. 1t was changed to the better as to treason, inaSmuch as some minor po- litiCal olfenses, that could be construed as leading to treason, were exempted from same. Section 5335 of the Revised Statutes of the United States deals with citizens intercourse with foreign gov ernment to the intended deriment of the government of the United States; that is practically accessory to treason, though the law on this crime is now formally independent from the law on treason. In certain sense we have, indeed, in Section 5335, law providing for accessory to treason.'
 That common law on acCessoryship was further changed to the better as to accessoryship dfter the fact; and it was finally changed to the worse as to access soryship before felony as we saw from the Illinois law and the laws of about seven other States, who abolished access | soryship, even in felony
 Therefrom the lack of any system is evident. The principle, indeed, of put ting the accessory on the same grade with the principal is so stupid that 1t cannot be systematized, The reasons of that principle, as indicated by Black | stone, are .of a rather frivolous char acter.
 There will certainly come a time when | the people of the United States will be l astonished that such a stupid law was maintained for centunes by the most | enlightened readers of the country. 1 And, sir, let it be remembered that there will be no excuse for the learned jurists of this country for not having been properly warned. Blackstone htnlSeJ has ruHed you in the pldUest terms,
 should like to call the especial atten- tion of American jurists to the follow ing passage in the chapter cited above | of BlackstOne'S commentaries:
 "Perhaps, if d distinction were con- etantly to be made between the punish mrut pf prIrcipals and accessories, the latter tn hr treated with little I,ss ae-
 vru'y than the former, / migM preren hc pcrVctrutIOD of many crimes by ln- creaSing the difficulty of tindlng per son to execute a deed itself, as his dAn- ger would he greater than that of his accomplicrs, by reason of the difference of his punishment
 You may see, sir, that Blackstone, though he came nearer to the truth l4O years ago than the lurists of to-day, did still not fully strike the point. lie i'm
 agined indeed, the danger from the law
 on indictment of accessory as principal,
 but his opinion did not rise and ripen to
 q firm conviction and full belief. Nor
 did he conceive that. in consideration of
 the possibility of danger such as inn
 agiued by him. the abolition of such a
 dangerous law should be made in the in
 terest of mankind, c0nditt0 sine qtta non.
 Blackstone, like all his contemporar- es. had in view only the QUenders, not
 the Word Threatened by them.
 Sir, now let me remark how my the
 0ry on the immortality and unconsttu- tionality of that common and statute
 law on equality of accessory with prin- cipa grew up in my conviction, abstracted my theory from the Ger man penal law. The idea that an allow ance should be granted to the accessory was indeed not fully recognized in Ger man law, but its fundamental principles were understood. The German crim
 inal code provides for accessoryship be-
 fore the fact as follows:
 I.-"Co. action of several persons in
 perpetration of any otfense or crime
 Every co-actor is principal.
 Decsion of the Supreme Court of Ger ! many: "A material co-action for the per 3 petration must have taken place Mere cognizance or appreciation of the pun S ishable act is no 'cO-aCtion. , H.-hStigatton, by money or prom
 ise, by threats, or by misuse of powe,
 and position, or by purposely generated
 error, or by other means.
 The "instigator" of the perpetrateC
 act is to be punished as principal, but
 according to the provisions of the su preme Court-an ''instigation' must b. r referred to specified action; Ca genera VI direction for future action is insutfi
 cient.
 , Iu.-ASSistuHce in otfense or crim ''ff by advice or action,
 's 's The assistant" is different from "cC u actor and "instigator,' and the law @, presSly provides that he shall be punishe
 according to the rules set forth for ''at ~ tempt" that is to say, with Jesse v punishment than that of the principal. l Sir, that German law is indeed nc .dd fully satisfactory to the requirements ( h ,S' my theory, but it accords at least to tl I I' assistant" the benefit of a lesser pun Ir u. ishment, to prerent him from becoming '' co-actor And as to that allowance u . German law makes no difference b,