that he must be guilty as principal, and if principal, then in the first degree; for there is no other criminal, much less a superior in the guilt, whom he could aid, abet, or assist.

II. An accessory is he who is not the chief actor in the offence, nor present at its performance, but is some way concerned therein, either before or after the fact committed. In considering the nature of which degree of guilt, we will, first, examine what offences admit of accessories, and what not: secondly, who may be an accessory before the fact: thirdly, who may be an accessory after it: and, lastly, how accessories, considered merely as such, and distinct from principals, are to be treated.

1. And, first, as to what offences admit of accessories, and what not. In high treason there are no accessories, but all are principals: the same acts that make a man accessory in felony, making him a principal in high treason, upon account of the heinousness of the 'crime. Besides, it is to be considered, that the bare intent to commit treason is many times actual treason: as imagining the death of the sovereign, or conspiring to take away his crown. And, as no one can advise and abet such a crime without an intention to have it done, there can be no accessories before the fact; since the very advice and abetment amount to principal treason. But this will not hold in the inferior species of high treason, which do not amount to the legal idea of compassing the death of the king, queen, or prince. For in those no advice to commit them, unless the thing be actually performed, will make a man a principal traitor. In murder and other felonies, there may be accessories: except only in those offences, which by judgment of law are sudden and premeditated, as manslaughter and the like; which therefore cannot have any accessories before the fact. So too in misdemeanors' and in all crimes under the degree of felony, there are no accessories either before or after the fact; but all persons concerned therein, if guilty at all, are principals: the same rule holding with regard to the highest and lowest offences, though upon different reasons. In treason all are principals, propter odium delicti; in trespass all are principals, because the law, quæ de minimus non curat, does not

a 3 Inst. 138; 1 Hal. P. C. 613.

b' Foster, 342.

1 Hal. P. C'. 615.

d 1 Hal. P. C. 613; Reg. v. Greenwood,

2 Den. & P. C. C. R. 453.

e

descend to distinguish the different shades of guilt in petty misdemeanors. It is a maxim, that accessorius sequitur naturam sui principalis: and therefore an accessory cannot be guilty of a higher crime than his principal; being only punished as a partaker of his guilt.

i

g

2. As to the second point, who may be an accessory before the fact, Sir Matthew Hale1 defines him to be one, who being absent at the time of the crime committed, doth yet procure, counsel, or command another to commit a crime. Herein absence is necessary to make him an accessory; for if such procurer, or the like, be present, he is guilty of the crime as principal. If A. then advises B. to kill another, and B. does it in the absence of A., now B. is principal, and A. is accessory in the murder. And this holds, even though the party killed be not in rerum naturæ at the time of the advice given. As if A., the reputed father, advises B., the mother of a bastard child, unborn, to strangle it when born, and she does so; A. is accessory to this murder." And it is also settled, that whoever procures a felony to be committed, though it be by the intervention of a third person, is an accessory before the fact. It is likewise a rule, that he who in any wise commands or counsels another to commit an unlawful act, is accessory to all that ensues upon that unlawful act, but is not accessory to any act distinct from the other. As if A. commands B. to beat C., and B. beats him so that he dies, B. is guilty of murder as principal, and A. as accessory. But if A. commands B. to burn C.'s house, and he, in so doing, commits a robbery; now A., though accessory to the burning, is not accessory to the robbery, for that is a thing of a distinct and unconsequential nature. But if the felony committed be the same in substance with that which is commanded, and only varying in some circumstantial matters; as if, upon a command to poison Titius, he is stabbed or shot, and dies; the command is still accessory to the murder, for the substance of the thing commanded was the death of Titius, and the manner of its execution is a mere collateral circumstance.k

3. An accessory after the fact may be where a person, knowing

e 3 Inst. 139.

f 1 Hal. P. C. 615, 616.

R. v. Tuckwell, 1 Car. & M. 215. h Dyer, 186.

i Foster, 125.

1 Hal. P. C. 617.

k2 Hawk. P. C. 316.

m

a felony to have been committed, receives, relieves, comforts, or assists the felon. Therefore, to make an accessory ex post facto, it is in the first place requisite that he knows of the felony committed.' In the next place, he must receive, relieve, comfort, or assist him. And generally, any assistance whatever given to a felon, to hinder his being apprehended, tried, or suffering punishment, makes the assistor an accessory. As furnishing him with a horse to escape his pursuers, money or victuals to support him, a house or other shelter to conceal him, or open force and violence to rescue or protect him. So likewise to convey instruments to a felon to enable him to break gaol, or to bribe the gaoler to let him escape, makes a man an accessory to the felony. But to relieve a felon in gaol with clothes or other necessaries, is no offence; for the crime imputable to this species of accessory is the hindrance of public justice, by assisting the felon to escape the vengeance of the law." To buy or receive stolen goods, knowing them to be stolen, falls under none of these descriptions; it was therefore at common law a mere misdemeanor, and made not the receiver accessory to the theft, because he received the goods only, and not the felon. But now all such offenders are made accessories and felons.' In France receivers were formerly' punished with death, but are now' subject to the same punishment as the principal offender. The Gothic constitutions distinguished also three sorts of thieves, "unum qui consilium daret, alterum qui "contractaret, tertium qui receptaret et occuleret; pari poenæ singulos "obnoxios." "r

The felony must be complete at the time of the assistance given, else it makes not the assistant an accessory. As if one wounds another mortally, and after the wound given, but before death ensues, a person assists or receives the delinquent, this does not make him accessory to the homicide; for, till death ensues, there is no felony committed. But so strict is the law where a felony is actually complete, in order to do effectual justice, that the nearest relations are not suffered to aid or receive one another. If the parent assists his child, or the child his parent, if the brother receives the brother, the master his servant, or the servant his master, or even if the husband relieves his wife, who have any

of them committed a felony, the receivers become accessories ex post facto. But a feme-covert cannot become an accessory by the receipt and concealment of her husband; for she is presumed to act under his coercion, and therefore she is not bound, neither ought she, to discover her lord."

W

4. The last point of inquiry is, how accessories are to be treated, considered distinct from principals. And the general rule of the ancient law, borrowed from the Gothic constitutions," is this, that accessories shall suffer the same punishment as their principals: if one be liable to death, the other is also liable; as, by the laws of Athens, delinquents and their abettors were to receive the same punishment. Why then, it may be asked, are such elaborate distinctions made between accessories and principals; if both are to suffer the same punishment? For these reasons: 1. To distinguish the nature and denomination of crimes, that the accused may know how to defend himself when indicted; the commission of an actual robbery being quite a different accusation from that of harbouring the robber. 2. Because, though by the ancient common law the rule is as before laid down, that both shall be punished alike, yet subsequently' a distinction was made between them: accessories after the fact being allowed the benefit of clergy in all cases, except horsestealing and stealing of linen from bleaching grounds, while it was denied to the principals and accessories before the fact, in many cases; and especially in murder, robbery, and wilful burning. And, perhaps, if a distinction were constantly to be made between the punishment of principals and accessories, even before the fact, the latter to be treated with a little less severity than the former, it might prevent the perpetration of many crimes, by increasing the difficulty of finding a person to execute the deed itself, as his danger would be greater than that of his accomplices, by reason of the difference of his punishment.2 3. Because

formerly' no man could be tried as accessory till after the principal was convicted, or at least he must have been tried at the same time with him; though the law in this respect' is now altered, as will be shown more fully in its proper place.

4. Because, though a man be indicted as accessory and acquitted, he may afterwards be indicted as principal: for an acquittal of receiving or counselling a felon, is no acquittal of the felony itself; 'and' one acquitted as principal may be indicted as an accessory after the fact; since that is always an offence of a different species of guilt, principally tending to evade the public justice, and is subsequent in its commencement to the other. Upon these reasons the distinction of principal and accessory will appear to be highly necessary in respect to accessories after the fact; but these reasons do not apply to accessories before the fact, and they accordingly may be indicted, tried, convicted, and punished in all respects like the principal."

a

11 & 12 Vict. c. 46, s. 1, now repealed, but re-enacted by the statute 24 & 25 Vict. c. 94, s. 1.