Winwick, K. v. iv 53 Witney, K. v. iii 769 771 Witton cum Twambrooke, K. v. iv 27 Wokey v. Hinton Blewett, iv 327 Woodford and Lilburn, iii 780 Woodford, K. v. iii 782 iv 10 Woodford, churchwardens of, i 493 Woodham, K. v. i 200 Woodlands, Ashburton v. iv 247 Yalden, Pitt v. i 249 Yarmouth, K. v. iv 42 Yarpole, K. v. iii 135 847 iv 401 424 Yorkshire, Justices of, K. v. See Justices. Young, Mead v. ii 391 Young, Hobbs v. i 176 Young, Hopkins v. i 177 THE WHOLE LAW RELATIVE TO THE DUTY AND OFFICE OF A Justice of the Peace. ACCESSARIES. AN accessary' is he who is not the chief actor in the offence, Defined. nor present at its performance, but is some-way concerned there. in, either before or after the fact committed. 4 Black. Com. 35. 1. What offences admit of accessaries, and II. Accessaries before the fact. IV. How accessaries, considered distinct from 1. What offences admit of accessaries, and what not. It seems to have been always an uncontroverted maxim, that No accessaries. in the highest capital offence, namely high treason, there can be in high treason 1 Accessarius, quasi accedens al culpam et particeps culpe, Dalton, p.161. TOL. I. B fa high treasor, except compassing the death of the king, principals in the second degree ought not to be tried before principals in the first. No accessaries no accessaries, neither before nor after 2; for whatever will make a man an accessary in felony, will make him a principal in treason, and therefore all consenters, aiders, abettors, and knowing receivers and comforters of traitors are all principals. 1 Hale's Hist. 613. 2 Hawk. c. 29. s. 2. and Foster's Crown Law, 341. This rule hath long obtained, and should be rightly understood, that is, with those limitations, which sound sense and com. mon equity require. Foster's Crown Law, 341.' For with regard to every instance of incitement, consent, ap probation, or previous abetment in that species of treason which falleth under the branch of the statute touching the compassing of the death of the king, queen, or prince: every such treason is in its own nature, independently of all other circumstances, or events, a complete overt act of compassing; though the fact originally in the contemplation of the parties should never be effected, nor so much as attempted. Foster's Crown Law, 316. Yet in every other species of treason, the accessorial offence is of a derivative kind, connected with, and arising out of that of the principal, and cannot exist without it. (Foster, 343.) -Some act must be done, to which act the offender must be an accessary, and out of which his guilt must spring, before he can be converted by this rule of law into a principal offender. It seems, therefore, that although in the event of the prosecution, such an offender may be considered as a principal, yet in his progress towards conviction, he ought, from a principle of natural justice, to be considered merely as in the nature of an accessary, before or after the fact; and if under such a consideration he were tried, before the person who actually did the fact, this absurdity might follow; namely, that the accessorial agent (or principal in the second degree) may be convicted, and the principal (in the first degree) who did the act, and on whose guilt the offence of the accessary must alone depend, may be acquitted. Foster's Crown Law, 341-347. In the lowest offences, as battery, riot, rout, forcible entry, in trespasses or and other transgressions vi et armis, and petit larceny, there petit larceny. 2. It was formerly a question, whether the same receipt of an offender. which would make the receiver an accessary after the fact in felony, would make him a principal in high treason; but it is now settled that it will, for if adjudged a misprision only, a man would be subject to a less punishment for receiving a traitor, than for receiving a felon; for he who receives a felon, is certainly liable to judgment of death, as being an accessary to the felony: but he who receives a traitor would be liable only to fine and im prisonment, as being guilty of a misprision only. 2 Hawk, c. 29. s. 3. 3. And Hale says, generally, that as to the course of proceeding it hat been, and indeed ought to be the course, that those, who did actually com mit the very fact of treason, should be first tried before those that are priu cipa.s in the second degree. Hale's Hist. 613. 4. Co. Litt. 57, 2 Hawk. c. 29. s. 2. 4. can be no accessaries; for all the accessaries before are in the same degree as principals; and accessaries afters, by receiving the offenders, cannot be in law under any penalties as accessaries, unless the acts of parliament that impose those penalties do expressly extend to receivers or comforters, as some do. 1 Hale's Hist. 613. East's Cr. L. 743. And therefore, whenever a man commands another to commit a trespass, who afterwards commits it, in pursuance of such command, he is as guilty of it, as if he had done it himself; from whence it follows, that being, in judgment of late, a prindipal offender, he may be tried and found guilty, before any trial of the person who actually did the fact. 2 Hawk. c. 29. 1.2. Also whosoever agrees to a trespass on lands or goods done to his use, thereby becomes a principal in it, but no one can be come a principal in a trespass on the person of a man by such agreement. Ibid. s. 4. Neither shall any one be adjudged a principal in any common trespass or inferior crime of the like nature, for barely receiv. ing, comforting, and concealing the offender, though he know him to have been guilty, and that there is a warrant out against him, which by reason of such concealment cannot be executed. And if he cannot be punished as a principal, he cannot be punished as an accessary; because in such offences, all who are punished as partakers of the guilt of him who did the fact must be punished as principals in it, or not at all. Yet, if a mun, knowing that there is a warrant against such offender, advise and persuade him to absent himself, perhaps he may be indictable for a contempt of the law, in hindering the due course of justice. Ibid. In petit treason, and also such felony as shall have judgment Pet't treason, of death, there may be accessaries both before and after the felony, and fact. Also it seems that there may be accessaries before the fact mayhem. in mayhem, and that the appellant may proceed against them, either as principals or as accessaries. But Mr, serjeant Hawkins adds, that it is no where holden, that there can be accessaries in mayhem after the fact. Ibid. s. 5. He also adds, that it is not agreed whether there can be Præmunire. any accessaries in præmunire. Ibid. See also Dalton, e. 161. who inclines to the opinion that they are all princi pals. There can be no accessaries, neither before nor after, in homi- Homicide, 5. Yet this seems to have been in some degree doubted in Rex v. Reddiard, Ea. 11 Ann: for Mr. East, in his Crown Law, inserts a note from De Grey's MS. where it is reported that Powell, J. said it was a vulgar error thank that petit larceny, or any felony, capital or not, may not have accessaries after the fact. Serj. Forster's MS. East's Cr, L. 745. (a). Manslaughter. Who are decin common law. micide per infortunium, or se defendendo. 1 Hale's Hist. 616 2 Hawk. c. 29. s. 24. Nor any accessaries before in manslaughter, though there may be an accessary after. 1 Hale's list. 616. 2 Hawk c. 29. s. 24. It remains, therefore, to consider, 1st. where a man shall be adjudged a principal in an offence, at common law; 2dly. where by the operation of un act of parliament. FIRST, where a man shall be adjudged a principal in an of fence at common law. It appears to be settled, that all those who assemble ed principals at themselves together with a felonious intent, the execution whereof causes, either the felony intended, or any other to be committed; or with an intent to commit a trespass, the execution whereof causes a felony to be committed; and continuing together, abetting one another, till they have actually put their design in execution: and also, all those who are present when a felony is committed, and abet the doing of it, as by holding the party while another strikes him, or by delivering a weapon to him that strikes, or by moving him to strike, are principals in the highest degree, in respect of such abetment, as much as the person who does the fact, which in judgment of Jaw, is as much the act of them all, as if they had all actually done it; and if there were malice in the abettor, and none in the person who struck the party, it will be murder as to the abettor, aud manslaughter only as to the other. 2 Hawk. c. 29. s. 7. But though the law requireth the presence of the accomplice at the perpetration of the fact, in order to render him a principal; yet, it doth not require a strict, actual, immediate presence, such a presence as would make him an eye or ear witness of what passeth. Thus, if several persons set out together, or in small parties, upon one common design, be it murder or other felony, or for any other purpose, unlawful in itself, and each taketh the part assigned him; some to commit the fact, others to watch at proper distances and stations to prevent a surprise, or to favour (if need be) the escape of those more immediately engaged: they are all, provided the fact be commit ted, in the eye of the law present at it. For it was made a common cause with them; each man operated in his station, at one and the same instant, towards the same common end, and the part cach man took tended to give countenance, encouragement and protection to the whole gang, and to ensure the success of their common cuterprize, Foster's Crown Law, 350. And it is not essential to the making an 'abettor a principal, that the person on whom the felony is committed should be un, der any terror from, or know of the abetment: it is sufficient, that the person who does the fact is encouraged in it, from the |