before the fact; fince 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 compaffing 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 petit treason, murder, and felonies of all kinds, there may be accessories : except only in those offences, which by judgment of law are fudden and unpremeditated, as manslaughter and the like; which therefore cannot have any accessories before the fact h. But in petit larciny, or minute thefts, and all other crimes under the degree of felony, there are no accessories; but all persons concerned therein, if guilty at all, are principals1: the fame 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, quae de minimis non curat, does not descend to diftinguish the different shades of guilt in petty misdemesnors. It is a maxim, that accessorius fequitur naturam fui principalis*: and therefore an accessory cannot be guilty of a higher crime than his principal; being only punished, as a partaker of his guilt. So that if a servant instigates a stranger to kill his master, this being murder in the stranger as principal, of course the servant is accessory only to the crime of murder; though, had he been present and assisting, he would have been guilty as principal of petty treason, and the stranger of murder'.

2. As to the second point, who may be an accessory before the fact; fir Matthew Halem 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 prin

cipal. If A then advises B to kill another, and B does it in the abfence 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 natura 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 procureth 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 wife 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 fame 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, that he dies; the commander is still accessory to the murder, for the substance of the thing commanded was the death of Titius, and the manner of it's execution is a mere collateral circumstance 9.

3. An accessory after the fact may be, where a person, knowing 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 fuffering punishment, makes the assistor an accessory. As furnishing him with a horse to escape his purfuers, money or victuals to support him, a house or other shelter to conceal him, or open force and violence to refcue 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 misdemesnor, and made not the receiver accessory to the theft, because he received the goods only, and not the felonTM: but now by the statutes 5 Ann. c. 31. and 4 Geo. I. c. 11. all such receivers are made accessories, and may be transported for fourteen years. In France this is punished with death: and the Gothic constitutions diftinguished also three forts of thieves, “ unum qui confilium daret, alterum qui “ contrectaret, tertium qui receptaret et occuleret; pari poenae fin"gulos obnoxios*.

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 fuffered to aid or receive one another. If the parent assists his child, or the child his parent, if the brother receives his 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 poft facto". But a feme covert cannot become an accessory by the receipt and concealment of her husband; for she is prefumed to act under his coercion, and therefore she is not bound, neither ought she, to discover her lord*.

4. THE last point of enquiry is, how accessories are to be treated, confidered distinct from principals. And the general rule of the antient 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 fuffer the fame punishment ? For these reafons. 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 antient common law the rule is as before laid down, that both shall be punished alike, yet now by the statutes relating to the benefit of clergy a distinction is made between them: accessories after the fact being still allowed the benefit of clergy in all cafes; which is denied to the principals, and accessories before the fact, in many cases; as in petit treason, murder, robbery, and wilful burning. And perhaps if a distinction were conftantly 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. 3. Because formerly no man could be tried as accessory, till after the principal was convicted, or at least at the fame time with him: though that law is now much altered, as will be shewn more fully in it's 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: but it is matter of some doubt, whether, if a man be acquitted as principal, he can be afterwards indicted as accessory before the fact; since those offences are frequently very near allied, and therefore an acquittal of the guilt of one may be an acquittal of the other also. But it is clearly held, that one acquitted as principal may be indicted as an accessory after the fact; fince that is always an offence of a different fpecies of guilt, principally tending to evade the public justice, and is subsequent in it's commencement to the other. Upon these reasons the distinction of principal and accessory will appear to be highly necessary; though the punishment is still much the fame with regard to principals, and such accessories as offend a priori.