tried, or suffering punishment, makes the affistor an accessory, As furnishing him with a horfe to escape his pursuers, money or victuals to fupport him, a house 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 clothes 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 ". To buy or receive ftolen goods, knowing them to be stolen, falls under none of these descriptions: it was therefore at common law, a mere mifdemefnor, and made not the receiver acceffory to the theft, because he received the goods only, and not the felonTM: but now by the statutes 5 Ann. c. 31. and Geo. I. c. 11. all fuch receivers are made acceffories, and may be transported for fourteen years. In France this is punished with death and the Gothic conftitutions distinguished also three forts of thieves, "unum qui confilium daret, alterum qui "contrectaret, tertium qui receptaret et occuleret; pari poenae fingulos obnoxios*.

4

THE felony must be complete at the time of the affistance 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 fo ftrict 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 affifts his child, or the child his parent, if the brother receives his brother, the mafter his fervant, or the fervant his master, or even if the husband relieves

t

2 Hawk. P. C. 317, 318,

I Hal. P. C. 620,621.

I Hal. P. C. 620.

* Stiernhook de jure Goth. l. 3. c. 5.. 7 2 Hawk. P. C. 320.

his wife, who have any of them committed a felony, the receivers become acceffories 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 the is not bound, neither ought she, to discover her lord*.

4. THE laft point of enquiry is, how acceffories are to be treated, confidered distinct from principals. And the general rule of the antient law (borrowed from the Gothic conftitutions") is this, that acceffories fhall fuffer the fame 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 fame punishment". Why then, it may be asked, are such elaborate distinctions made between acceffories and principals, if both are to fuffer the same punishment ? For these reasons. 1. To distinguish the nature and denomination of crimes, that the accused 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. 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: acceffories after the fact being still allowed the benefit of clergy in all cafes; which is denied to the principals, and acceffories before the fact, in many cases; as in petit treason, murder, robbery, and wilful burning. And perhaps if a distinction 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 increasing the difficulty of finding a perfon to execute the deed itself; as his danger would be greater than that of his accomplices, by

reafon of the difference of his punishment'.

3. Because for

merly 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 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 . 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 justice, and is subsequent in it's commencement to the other. Upon these 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 a priori.

• Beccar. c. 37.

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

CHAPTER

THE FOURT H.

OF OFFENCES AGAINST GOD AND RELIGION.

IN

N the present chapter we are to enter upon the detail of the several species of crimes and misdemefnors, with the punishment annexed to each by the laws of England. It was obferved, 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 focial 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 the 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 species of public crimes. Thus the vice of drunkenness, 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

a See pag. 5.

See Vol. I. pag. 123, 124. VOL. IV.

c Beccar. ch. 8.

F

to

to temporal cenfures. The vice of lying, which confists (abftractedly taken) in a criminal violation of truth, and therefore in any shape is derogatory from found morality, is not however taken notice of by our law, unless it carries with it fome public inconvenience, as spreading false news; or fome social injury, as flander and malicious profecution, for which a private recompence is given. And yet drunkenness and lying are in foro confcientiae as thoroughly criminal when they are not, as when they are, attended with public inconvenience. The only difference is, that both public and private vices are subject to the vengeance of eternal justice; and public vices are befides liable to the temporal punishments of human tribunals.

On the other hand, there are some misdemefnors, which are punished by the municipal law, that are in themselves nothing criminal, but are made fo by the pofitive constitutions of the state for public convenience. Such as poaching, exportation of wool, and the like. These are naturally no offences at all; but their whole criminality confists in their disobedience to the fupreme power, which has an undoubted right for the wellbeing and peace of the community to make fome things unlawful, which were in themselves indifferent. Upon the whole therefore, though part of the offences to be enumerated in the following sheets are offences against the revealed law of God, others against the law of nature, and fome are offences against neither; yet in a treatise of municipal law we must confider them all as deriving their particular guilt, here punishable, from the law of man.

HAVING premifed this caution, I fhall next proceed to diftribute the feveral offences, which are either directly or by consequence injurious to civil fociety, and therefore punishable by the laws of England, under the following general heads: first, those which are more immediately injurious to God and his holy religion; fecondly, fuch as violate and tranfgrefs the law of nations; thirdly, fuch as more especially affect the sove