fon; which extend as well to the will as to the other qualities of his mind. I mean the case of the king: who, by virtue of his royal prerogative, is not under the coercive power of the law"; which will not fuppofe him capable of committing a folly, much less a crime. We are therefore, out of reverence and decency, to forbear any idle enquiries, of what would be the consequence if the king were to act thus and thus: fince the law deems fo highly of his wifdom and virtue, as not even to prefume it poffible for him to do any thing inconfiftent with his station and dignity; and therefore has made no provision to remedy such a grievance. But of this fufficient was faid in a former volume", to which I must refer the reader.

u i Hal. P. C. 44.

w Book I. ch. 7. pag. 244.

VOL. IV.

E

CHAPTER THE THIRD.

OF PRINCIPALS AND ACCESSORIES.

T having been shewn in the preceding chapter what persons

IT

are, or are not, upon account of their fituation and circumstances, 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.

I. A MAN may be principal in an offence in two degrees. A principal, in the first degree, is he that is the actor, or absolute perpetrator of the crime; and, in the second degree, he who is prefent, aiding, and abetting the fact to be done'. Which prefence need not always be an actual immediate standing by, within fight or hearing of the fact; but there may be also a constructive presence, as when one commits a robbery or murder, and another keeps watch or guard at some convenient distance. And this rule hath alfo other exceptions: for, in case of murder by poisoning, a man may be a principal felon, by preparing and laying the poison, or giving it to another (who is ignorant of it's poisonous quality) for that purpose; and yet not administer it himself, nor be present when the very deed of poisoning is committed. And the fame reasoning will hold,

I

21 Hal. P. C. 615.

e Ibid. 349.

d 3 lnst. 138.

b Fofter. 350.

with regard to other murders committed in the absence 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 beast, with an intent to do mischief, or exciting a madman to commit murder, fo that death thereupon enfues; in every of these cases the party offending is guilty of murder as a principal, in the first degree. For he cannot be called an acceffory, that neceffarily pre-fuppofing a principal; and the poison, the pitfall, the beaft, or the madman cannot be held principals, being only the inftruments of death. As therefore he must 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 first degree; for there is no other criminal, much lefs a fuperior in the guilt, whom he could aid, abet, or assist©.

II. AN acceffory is he who is not the chief actor in the offence, nor present 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, first, 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 distinct from principals, are to be treated.

I. AND, first, as to what offences admit of acceffories, and what not. In high treason 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 heinousness of the crime. Befides it is to be confidered, that the bare intent to commit treason is many times actual treafon ; as imagining the death of the king, or confpiring to take away his crown. And, as no one can advise and abet fuch a crime without an intention to have it done, there can be no acceffories 3 Inft. 138. 1 Hal. P. C. 613. E 2

1 Hal. P. C. 617. 2 Hawk. P. C. 315.

before

before the fact; fince the very advice and abetment amount to principal treason. But this will not hold in the inferior species of high treafon, which do not amount to the legal idea of compafling the death of the king, queen, or prince. For in those no advice to commit them, unlefs the thing be actually performed, will make a man a principal traitor. In petit treason, 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 manslaughter and the like ; which therefore cannot have any acceffories before the fact ». 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: the fame rule holding with regard to the highest and lowest offences; though upon different reasons. In treafon all are principals, propter odium delicti; in trefpafs all are principals, because the law, quae de minimis non curat, does not defcend to diftinguish the different shades of guilt in petty misdemefnors. It is a maxim, that accefforius fequitur naturam fui principalis: and therefore an acceffory cannot be guilty of a higher crime than his principal; being only punished, as a partaker of his guilt. So that if a fervant inftigates a stranger to kill his master, this being murder in the ftranger as principal, of course the servant is acceffory only to the crime of murder; though, had he been present and affisting, he would have been guilty as principal of petty treason, and the stranger of murder'.

m

2. As to the fecond point, who may be an acceffory before the fact; fir Matthew Hale " 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 if fuch procurer, or the like, be prefent, he is guilty of the crime as prin

cipal. 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 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 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 counsels another to commit an unlawful act, is acceffory to all that enfues upon that unlawful act; but is not acceffory 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 house; and he, in fo doing, commits a robbery; now A, though accessory to the burning, is not acceffory to the robbery, for that is a thing of a distinct and unconfequential 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 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 circumstance.

3. AN acceffory after the fact may be, where a person, knowing a felony to have been committed, receives, relieves, comforts, or affifts the felon. Therefore, to make an acceffory ex poft 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 affist him. And, generally, any assistance whatever given to a felon, to hinder his being apprehended,