Definition
A person who, though absent when a crime is committed, procures, counsels, or commands another person to commit it. Absence at the time of the crime is the defining feature: if the accessary before the fact is present at any point during the transaction, the law treats that person not as an accessary but as a principal.
The distinction matters because, at common law, accessaries before the fact occupied a formally separate category from principals and from accessaries after the fact. This classification carried procedural consequences, including rules about where and how each could be tried.
Common Language
Modern common usage (Wiktionary): Listed only as an alternative spelling of "accessory before the fact." No independent common meaning.
Historical common usage (Webster's 1913): "Accessary" appears as a variant spelling of "accessory," meaning one who aids or contributes in a secondary way, without a specifically legal connotation.
The ordinary-language sense of "accessory" (an add-on, a helper, or a supplement) gives almost no guidance to the legal meaning here. The legal term is a term of art carrying precise doctrinal content — particularly the requirement of absence and the procedural consequences that follow — that the common definition does not hint at.
Common Confusion
ACCESSARY BEFORE THE FACT vs. PRINCIPAL IN THE SECOND DEGREE: Both involve a person who participates in a crime committed by another. The dividing line is physical presence. A principal in the second degree is present (actually or constructively) at the scene and aids or abets the commission of the crime. An accessary before the fact is absent at the time the crime is carried out, having previously procured, counseled, or commanded it. Courts have sometimes contested what counts as "constructive presence," making the line between these categories fact-sensitive and historically contested.
ACCESSARY BEFORE THE FACT vs. ACCESSARY AFTER THE FACT: These share a name and a formal category but describe entirely different conduct. The accessary after the fact has no involvement in planning or procuring the crime; that person assists the offender after the crime is complete, knowing it was committed. The accessary before the fact is implicated in the crime's inception. Conflating them distorts both the historical doctrine and any statutory analysis.
Why It Matters in Research
The spelling "accessary" (with an "a") versus "accessory" (with an "o") is not merely a typographical variant in historical legal sources — both spellings appear in authoritative texts, and historical indexes and digests are inconsistent. Researchers searching nineteenth-century case law, treatises, or statutes should run searches under both spellings.
The common law category of accessary before the fact has been substantially abolished or reformed in most American jurisdictions. Modern statutes typically eliminate the accessary/principal distinction entirely, treating all who procure, counsel, or command a crime as principals or under a general complicity or aiding-and-abetting framework. This means that a researcher finding nineteenth-century case law on accessaries before the fact cannot assume the same procedural rules or charging requirements apply under modern law. The substantive question — was this person involved in procuring the crime? — survives; the formal category largely does not.
In English common law, the procedural consequences were significant: an accessary could not, at common law, be tried before the principal was convicted, and could only be tried in the jurisdiction where the procuring took place, not where the crime was committed. These rules generated substantial litigation and appear frequently in older cases. They have no direct modern counterpart in most American jurisdictions.
When reading historical indictments or charging documents, pay close attention to whether a defendant is charged as a principal, as an accessary before the fact, or as an accessary after the fact. These were not interchangeable. An indictment charging one form would not sustain a conviction under another.
Historical Dictionary Support
Black's Law Dictionary and Burrill's Law Dictionary are in close agreement on the core definition: absence at the time of the crime is the essential element, and presence at any point during the transaction converts the accessary before the fact into a principal. Both cite to 1 Hale's Pleas of the Crown and Plowden's Commentaries as foundational authorities, reflecting the deep common law lineage of the doctrine.
Neither dictionary provides sustained treatment of the procedural rules that made this category legally consequential — the trial sequencing requirements and jurisdictional constraints that shaped how courts actually applied the distinction. Researchers relying solely on dictionary definitions will miss the procedural stakes that made this category matter in practice. For fuller treatment, the common law sources cited in Black's — Hale's Pleas of the Crown and Stephens's Commentaries — remain the primary reference points.
Historical dictionaries also do not flag the legislative trend toward abolition of the category, which was already underway in some jurisdictions by the time later editions of these dictionaries were published.
Jurisdictional Note
Modern American jurisdictions have largely replaced the common law accessary-before-the-fact doctrine with general complicity or aiding-and-abetting statutes that treat participants as principals regardless of presence. English law underwent similar reform through the Accessories and Abettors Act 1861. Researchers working in pre-twentieth-century sources must apply the common law framework; researchers working in modern sources should consult the controlling complicity statute directly.