CHAPTER THE THIRD
OF PRINCIPALS AND ACCESSORIES.

IT having been fhewn in the precceding chapter what perfons are, or not, upon accont of their fituation and circumftances, capable of committing crimes, we are next to make a few remarks on the different degrees of guilt among perfons that are capable of offending ; viz. as principal, and as acceffory.

1. A MAN may be principal in an offence in two degrees. a principal, in the firft degree, is he that is that is the actor, or abfolute perpetrator of the crime ; and, in the fecond degree, he who is prefent, aiding, and abetting the fact to be done ^a. Which prefence need not always be an actual immediate ftanding by, within fight or hearing of the fact ; but there may be alfo a conftructine prefence, as when one commits a robbery or murder, and another keeps watch or guard at fome convenient diftance ^b. And this rule hath alfo other exceptions : for, in cafe of murder by poifoning, a man may be a principal felon, by preparing and laying the poifon, or giving it to another (who is ignorant of it's poifonous quality ^c) for that purpofe ; and yet not adminifter it himfelf, nor be prefent when the very deed of poifoning is commmitted ^d. And the fame reafoning will hold,

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^a 1 Hal. P.C.615.
^b Fotter.350.
^c Ibid.349.
^d 3 Inft.138.
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with regard to other murders committed in the abfence of the murderer, by means which he had prepared before-hand, and which probably could not fail of their mifchievous effect. As by laying a trap or pitfall for another, whereby he is killed ; letting out a wild beaft, with an intent to do mifchief, or exciting a madman to commit murder, fo that death thereupon enfues ; in every of thefe cafes the party offending is guilty of murder as a principal, in the firft degree. For he cannot be called an acceffory, that neceffarily pre-fuppofing a principal ; and the poifon, the pitfall, the beaft, or the madman cannot be held principals, being only the inftruments of death. As therefore he muft be certainly guilty, either as principal or acceffory, and cannot be fo as acceffory, it follows that he muft be guilty as principal : and if principal, then in the firft degree ; for there is no other criminal, much lefs a fuperior in the guilt, whom he could aid, abet, or affift ^e.

II. AN acceffory is he who is not the chief actor in the offence, nor prefent at it's performance, but is fomeway concerned therein, either before or after the fact committed. In confidering the nature of which degree of guilt, we will, firft, examine what offences admit of acceffories, and what not : fecondly, who may be an acceffory before the fact : thirdly, who may be an acceffory after it : and, laftly, how acceffories, confidered merely as fuch, and diftinct from principal, are to be treated.

1. AND, firft, as to what offences admit of acceffories, and what not. In high treafon there are no acceffories, but all are principals : the fame acts, that make a man acceffory in felony, making him a principal in high treafon, upon account of the heinoufnefs of the crime ^f. Befides it is to be confidered, that the bare intent to commit treafon is many times actual treafon ; as imagining the death of the king, or confpiring to take away his crown. And, as no one can advife and abet fuch a crime without an intention to have it done, there can be no acceffories

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^e 1Hal. P.C.617. 2Hawk. P.C.315.
^f 3Inft.138. 1Hal. P.C.613.
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before the fact ; fince the very advice and abetment amount to principal treafon. But this will not hold in the inferior fpecies of high treafon, which do not amount to the legal idea of compaffing the death of the king, queen, or prince. For in thofe no advice to commit them, unlefs the thing be actually performed, will make a man a principal traitor ^g. In petit treafon, murder, and felonies of all kinds, there may be acceffories : except only in thofe offences, which by judgment of law are fudden and unpremeditated, as manflaughter and the like ; which therefore cannot have any acceffories before the fact ^h. But in petit larciny, or minute thefts, and all other crimes under the degree of felony, there are no acceffories ; but all perfons concerned therein, if guilty at all, are principals ⁱ : the fame rule holding with regard to the higheft and loweft offences ; though upon different reafons. In treafon all are principals, propter odium delicti ; in trefpafs all are principals, becaufe the law, quae de minimis non curat, does not defcend to diftinguifh the different fhades of guilt in petty mifdemefnors. It is a maxim, that accefforius fequitur naaturam fui principalis ^k : and therefore an acceffory cannot be guilty of a higher crime than his principal ; being only punifhed, as a partaker of his guilt. So that if a fervant inftigates a ftranger to kill his mafter, this being murder in the ftranger as principal, of courfe the fervant is acceffory only to the crime of murder ; though, had he been prefent and affifting, he would have been guilty as principal of petty treafon, and the ftranger of murder ^l.

2. As to the fecond point, who may be an acceffory before the fact ; fir Matthew Hale ^m defines him to be one, who being abfent at the time of the crime committed, doth yet procure, counfel, or command another to commit a crime. Herein abfence is neceffary to make him an acceffory ; for fuch procufence is neceffary to make him an acceffory ; for if fuch procurer, or the like, be prefent, he is guilty of the crime as prin-

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^g Fofter.342.
^h 1Hal. P.C.615.
ⁱ Ibid.613.
^k 3Inft.139.
^l 2Hawk. P.C.315.
^m 1Hal. P.C.615,616.
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cipal. If a then advifes B to kill another, and B does it in the abfence of A, now B is principal, and A is acceffory in the murder. And this hold, even though the party killed be not in rerum natura at the time of the advice given. As if A, the reputed father, advice B the mother of a baftard child, unborn, to ftrangle it when born, and fhe does fo ; A is acceffory to this murder ⁿ. And it is alfo tettled ^o, that whoever procureth a felony to be committed, though it be by the intervention of a third perfon, is an acceffory before the fact. It is likewife a rule ; that he who in any wife commands or counfels another to commit an unlawful act, is acceffory to all that enfues upon that unlawful act ; but is not acceffory to any act diftinct from the other. As if A commands B to beat C, and B beats him fo that he dies ; B is guilty of murder as principal, and A as acceffory. But if A commands B to burn C's houfe ; and he, in fo doing, commits a robbery ; now A, though acceffory to the burning, is not acceffory to the robbery, for that is a thing of a diftinct and unconfequential nature ^p. But if the felony committed be the fame in fubftance with that which is commanded, and only varying in fome circumftantial matters ; as if, upon a command to poifon Titius, he is ftabbed or fhot, that he dies ; the commander is ftill acceffory to the murder, for the fubftance of the thing commanded was the death of Titius, and the manner of it's execution is a mere collateral circumftance ^q.

3. AN acceffory after the fact may be, where a perfon, knowing a felony to have been committed, recieves, relieves, comforts, or affifts the felon ^r. Therefore, to make an acceffory ex poft facto, it is in the firft place requifite that he knows of the felony committed ^s. In the next place, he muft receive, relieve, comfort, or affift him. And, generally, any affiftance whatever given to a felon, to hinder his being apprehended,

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ⁿ Dyer.186.
^o Fofter.125.
^p 1Hal. P.C.617.
^q 2Hawk. P.C.316.
^r 1Hal. P.C.618.
^s 2Hawk. P.C.319.
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tried, or fuffering punifhment, makes the affiftor an acceffory. As furnifhing him with a horfe to efcape his purfuers, money or victuals to fupport him, a houfe or other fhelter to conceal him, or open force and violence to refcue or protect him ^t. So likewife to convey inftruments to a felon to enable him to break gaol, or to bribe the gaoler to let him efcape, makes a man an acceffory to the felony. But to relieve a fefon in gaol with clothes or other necceffaries, is no offence : for the crime imputable to fpecies of acceffory is the hindrance of public juftice, by affifting the felon to efcape the vengeane of the law ^u. To buy or receive ftolen goods, knowing them to be ftolen, falls under none of thefe defcriptions : it was therefore at common law, a mere mifdemefnor, and not the receiver acceffory to the theft, becaufe he recieved the goods only, and not the felon ^w : but now by the ftatutes 5 Ann. c.31. and 4 Geo. I.c.11. all fuch receivers are made acceffories, and may be tranfported for fourteen years. In France this is punifhed with death : and the Gothic conftitutions diftinguifhed alfo three forts of htieves, “unum qui confilium daret, alterum qui contrectaret, tertium qui receptaret et occuleret ; pari poenae fingulos obnoxios ^x.

THE felony muft be complete at the time of the affiftance given : elfe it makes not the affiftant an acceffory. As if one wounds another mortally, and after the wound given, but before death enfues, a perfon affifts or recieves the delinquent : this does not make him acceffory to the homicide, for till death enfues there is no felony committed ^y. But fo ftrict is the law where a felony is actually complete, in order to do effectual juftice, that the neareft relations are not fuffered to aid or receive one another. If the parent affifts his child, or the child his parent, if the brother receives his brother, the mafter his fervant, or the fervant his mafter, or even if the hufband relieves

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^t 2Hawk. P.C.317,318.
^u 1Hal. P.C.620,621.
^w 1Hal. P.C.620.
^x Stiernhook de jure Goth.l.3.c.5.
^y 2Hawk. P.C. 320.
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his wife, who have any of them committed a felony, the receivers become acceffories ex poft facto ^z. But a feme covert cannot become an acceffory be the receipt and concealment of her hufband ; for fhe is prefumed to act under his coercion, and therefore fhe is not bound, neither ought fhe, to difconer her lord ^a.

4. THE laft point of enquiry is, how acceffories are to be treated, confidered diftinct from principals. And the general rule of the antient alw (borrowed from the Gothic conftitutions ^b) is this, that acceffories fhall fuffer the fame punifhment as their principals : if one be liabel to death, the other is alfo liable ^c : as, by the law of Athens, delinquents and their abettors were to receive the fame punifhment ^d. Why then, it may be afked, are fuch elaborate diftinctions made between acceffories and principals, if both are to fuffer the fame punifhment ? For thefe readons. 1. To diftinguifh the nature and denomination of crimes, that the accufed may know how to defend himfelf when indicted : the commiffion of an actual robbery being quite a different accufation, from that of harbouring the robber. 2. Becaufe, though by the antient common law the rule is as before laid down, that both fhall be punifhed alike, yet now by the ftatutes relating to the benefit of clergy a diftingtion is made between them : acceffories after the fact being ftill allowed the benefit of clergy in all cafes ; which denied to the principals, and acceffories before the fact, in many cafes ; as in petit treafon, murder, robbery, and wilful burning ^c. And perhaps if a diftinction were conftantly to be made between the punifhment of principals and acceffories, even before the fact, the latter to be created with a little lefs feverity than the former, it might prevent the perpetration of many crimes, by increafing the difficulty of finding a perfon to execute the deed itfelf ; as his danger would be greater than that of his accomplices, by

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^z 3 Inft. 10§. 2Hawk. P.C.320.
^a 1Ibid. P.C.621.
^b See. Stiernhock. Ibid.
^c Inft.188.
^d Pott. antia. b.1.c.20. 1Hal. P.C.615.
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reafon of the difference of his punifhment ^f. 3. becaufe formerly no man could be tried as acceffory, till after the principal was convicted, or at leaft at the fame time with him : though that law is now much altered, as will be fhewn more fully in it's proper place. 4. Becaufe, though a man be indected as acceffory and acquitted, he may afterwards be indicted as principal ; for an acquittal of receiving or counfelling a felon is no acquittal of the felony itfelf : but it is matter of fome doubt, whether, if a man be acquitted as principal, he can be afterwards indicted as acceffory before the fact ; fince thofe offences are frequently very near allied, and therefore an acquittal of the guilt of one may be an acquittal of the other alfo ^g. But it is clearly held, that one acquitted as principal may be indicted as an acceffory after the fact ; fince that is always an offence of a different fpecies of guilt, principally tending to evade the public juftice, and is fubfequent in it's commencement to the other. Upon thefe reafons the diftinction of principal and acceffory will appear to be highly receffary ; though the punifhment is ftill much the fame with regard to principals, and fuch acceffories as offend a priori.

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^f Beccar.c.37.
^g 1Hal. P.C.625,626. 2Hawk. P.C.373. Fofter.361.
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