[hardy-l] Tess - Alec not charged?

Tue Jan 13 23:41:48 PST 2009

I wondered about this too.  It seems arguable. 

At common law an accessory after the fact was one who relieved,
received, comforted or assisted another with knowledge that he had
committed a felony.  To constitute being an accessory after the fact (1)
a felony must have been committed, and it must have been complete at the
time of the relief or assistance; (2) the accused accessory must know
that the felony has been committed by the person relieved or assisted,
and (3) the relief or assistance must be rendered to the felon
personally.  (Paraphrasing Hale's Historia Placitorum Coronae, 1st
American ed., 1847) Exception: "A feme covert," says Hale, "cannot be an
accessary for the receipt of her husband, for she ought not to discover
him.  But a husband may be an accessary for the receipt of his wife."

1. There is no doubt that a felony was committed.  We can be pretty sure
of this since Tess was subsequently hanged for it.

2. Did Angel really "know" that Tess had killed Alec? Or did he think
she had just gone bonkers?  It isn't clear to me whether a reasonable
man would have believed her, or that Angel really did.  While one might
argue that the apparent care taken to avoid notice suggests that Angel
believed her story, such behavior is also consistent with humoring a
deranged person.  Just one possible line of defense for Angel if he were
charged. 

3. On relief or assistance. The assistance must be given to the felon
personally.  Failing to disclose the felony, failing to deliver the
felon to justice, or expressing approbation of the crime could not make
Angel an accessory after the fact at common law (though these things
might give rise to related misdemeanor charges). Angel did not provide
Tess transportation.  They walked. Angel did not receive Tess into his
house or lodgings.  They hid out together at Bramshurst Court, but the
house was not under Angel's control, in law or in fact, so it is hard to
say he "concealed" her there. She concealed herself. Nice that the
shutters in the room were closed, as it saved Angel from having to take
the affirmative step of closing them. Hale gives an example of a man who
becomes an accessory after the fact simply by closing the door of his
house to deceive pursuers of the felon within. Angel did provide Tess
with food, but the simple act of knowingly supplying a felon with food
or "other necessaries for his maintenance" are not sufficient to make
one an accessory after the fact to felony under common law. (Wharton's
American Criminal Law, stating the common law position.) To provide
money, victuals, or transportation to facilitate escape is a different
matter.  There are some subtle distinctions here.  Overall Angel really
didn't do much but tag along and keep Tess company.  Did Hardy
deliberately choose a set of facts that would make an accessory after
the fact charge plausible but somewhat dubious?  

At common law an accessory could not be tried, without his consent,
before conviction of the principal, unless both were tried together.  It
is at least conceivable that Angel might have been charged as an
accessory after the fact and bailed awaiting trial, tried and acquitted
prior to the final scene, or tried and convicted and pardoned. None of
these scenarios would be inconsistent with the narrative.   Hardy does
not mention such things, but that does not mean they did not occur.

I would be interested in what others think of all this. 

Chuck Anesi
charles.anesi at wellsfargo.com
office 480-575-3478
cell 612-940-3345
fax 480-575-3519

** These opinions are strictly my own and not necessarily those of Wells
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-----Original Message-----
From: Rosemarie Morgan [mailto:Rosemarie.morgan at yale.edu] 
Sent: Tuesday, January 13, 2009 8:38 PM
To: hardy-l at coyote.csusm.edu
Subject: Re: [hardy-l] Tess - Alec not charged?

First off, Bob, Angel isn't present at the time of the murder. Tess has
sent him away: he has breakfast at his hotel before leaving for the
station (again I'm referring to the Ist edition in which editor, Tim
Dolin, usually notes later changes; but not here )

2. Landlady sees much of what's going on between Tess and Alec by spying
through the keyhole. The rest she hears and eventually calls the alarm
to a workman to help her investigate

3. Tess subsequently catches up with Angel - she has been following him
- & tells him what  she's done: "I feared long ago, when I struck him on
the mouth with my glove that I might do it some day for the wrong he did
to me in my simple youth" (Phase 7th) But Angel doesn't fully believe
her -- " It was terrible if true; if a temporary hallucination sad." He
promises to protect her "whatever you may or may not have done.."

I think it would be hard to prove him to be an accessory after the fact
if he's uncertain about what has happened and witnessed none of it.

No doubt our legal eagle will put us right on this?  Chuck?

Cheers,
Rosemarie

>Would anyone care to suggest how it is that Angel is not charged with 
>aiding in the murder 'after-the-fact'?

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