B does it in the abfence of A, now B is principal, and A is acceffory in the murder. And this holds, even though the party killed be not in rerum natura at the time of the advice. given. As if A, the reputed father, advises B the mother of a bastard child, unborn, to ftrangle it when born, and she does fo; A is acceffory to this murder. And it is alfo fettled, that whoever procureth a felony to be committed, though it be by the intervention of a third person, is an acceffory before the fact. It is likewise 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 accessory to any act distinct 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 distinct and unconfequential nature 1. But if the felony committed be the fame in fubftance with that which is commanded, and only varying in some circumstantial matters; as if, upon a command to poison Titius, he is ftabbed or fhot, and 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".

3. AN acceffory after the fact may be, where a perfon, knowing a felony to have been committed, receives, relieves, comforts, or affifts the felon. Therefore, to make an acceffory ex post facto, it is in the first place requifite that he knows of the felony committed. In the next place he must receive, relieve, comfort, or affift him. And, generally, any affiftance whatever given to a felon, to hinder his being apprehended, tried, or fuffering punishment, makes the affiftor an acceffory. As furnishing him with a horse to escape his

o Dyer. 186.

P Fofter. 125.

44 Hal, P, C, 617.

r2 Hawk. P. C. 316.

SI Hal. P. C. 618.

t2 Hawk. P. C. 319.

purfuers,

purfuers, money or victuals to fupport him, a houfe or other shelter to conceal him, or open force and violence to rescue or protect him. So likewife to convey inftruments to a felon to enable him to break gaol, or to bribe the gaoler to let him escape, makes a man an acceffory to the felony. But to relieve a felon in gaol with cloaths or other neceffaries, is no offence: for the crime imputable to this fpecies of acceffory is the hindrance of public justice, by affifting the felon to escape the vengeance of the law v. 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 misdemefnor, and made not the receiver acceffory to the theft, because he received the goods only, and not the felon": but now by the ftatutes 5 Ann. c. 31. and 4 Geo. I. c. 11. all fuch receivers are made acceffories (where the principal felony admits of acceffories "), and may be tranfported for fourteen years (1); and, in the cafe of receiving linen goods ftolen from the bleaching-grounds, are by ftatute 18 Geo. II. c. 27. declared felons without benefit of clergy. In France fuch receivers are punished with death: and the Gothic conftitutions distinguished also three forts of thieves, "únum qui "confilium daret, alterum qui contrectaret, tertium qui recep"taret et occuleret: pari poenae fingulos obnoxios"

THE felony must be complete at the time of the affiftance given; else 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 receives the delinquent : this does not make him acceffory to the homicide; for, till death enfues, there is no felony committed. But so strict is the law where a felony is actually complete, in order to do effectual juftice, that the nearest relations are not fuffered to aid or receive one another. If the parent affifts his child, or

́t 2 Hawk. P. C. 317, 318.

v 1 Hal. P. C. 620, 621.

u Ibid. 620.

w Fofter. 73.

x Stiernhook de jure Goth. l. 3. c. 5. y 2 Hawk. P. C. 320.

(1) See more upon this fubject in p. 132.

the child the parent, if the brother receives the brother, the mafter his fervant, or the fervant his master, or even if the hufband relieves his wife, who have any of them committed a [39] felony, the receivers become acceffories ex poft facto2. But a

feme covert cannot become an acceffory by the receipt and concealment of her husband; for fhe is prefumed to act under his coercion, and therefore fhe is not bound, neither ought fhe, to discover her lord a.

4. THE last point of enquiry is, how acceffories are to be treated, confidered diftinct from principals. And the general rule of the antient law (borrowed from the Gothic conftitutions") is this, that acceffories shall suffer the same punishment as their principals: if one be liable to death, the other is alfo liable: as, by the laws of Athens, delinquents and their abettors were to receive the fame punishment d. Why then, it may be asked, are fuch elaborate diftinctions made between acceffories and principals, if both are to fuffer the fame 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 commiffion of an actual robbery being quite a different accufation from that of harbouring the robber. 2. Because, though by the antient common law the rule is as before laid down, that both shall be punished alike, yet now by the ftatutes relating to the benefit of clergy a distinction is made between them: acceffories after the fact being ftill allowed the benefit of clergy in all cafes, except horfe-ftealing and stealing of linen from bleaching-grounds f; which is denied to the principals, and acceffories before the fact, in many cases; as, among others, in petit treason, murder, robbery, and wilful burning. And perhaps if a diftinction were constantly to be made between the punishment of principals and acceffories, 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 increafing 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 dif- [ 40 ] ference of his punishment . 3. Because formerly no man could be tried as acceffory, till after the principal was convicted, or at least he must have been tried 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. Because, though a man be indicted as acceffory 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 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 i. 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 reasons the diftinction of principal and acceffory will appear to be highly neceffary; though the punishment is still much the fame with regard to principals, and fuch acceffories as offend before the fact is committed,

h Beccar. c. 37.

1 Hal. P. C. 625, 626. 2 Hawk. P. C. 373. Fofter. 361.

CHAPTER THE FOURTH.

OF OFFENCES AGAINST GOD AND RELIGION.

IN

N the prefent chapter we are to enter upon the detail of the several species of crimes and misdemefnors, with the punishments annexed to each by the laws of England. It was observed in the beginning of this book, that crimes and mifdemefnors are a breach and violation of the public rights and duties, owing to the whole community, confidered as a community, in it's focial aggregate capacity. And in the very entrance of these commentaries it was fhewn, that human laws can have no concern with any but social and relative duties; being intended only to regulate the conduct of man, confidered under various relations, as a member of civil fociety. All crimes ought therefore to be estimated merely according to the mifchiefs which they produce in civil fociety and, of confequence, private vices, or breach of mere abfolute duties, which man is bound to perform confidered only as an individual, are not, cannot be, the object of any municipal law; any farther than as by their evil example, or other pernicious effects, they may prejudice the community, and thereby become a fpecies of public crimes. Thus the vice of drunkennefs, if committed privately and alone, is beyond the knowlege and of course beyond the reach of human tribunals: but if committed publicly, in the face of the world, it's evil example makes it liable to temporal cenfures. The vice of lying, which consists (abstractedly taken) in a criminal violation of truth, and therefore in any

с