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son; 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 suppose him capable of committing a folly, much less a crime. We are therefore, out of reverence and decency, to forbear any, idle inquiries, of what would be the consequence if the king were to act thus and thus : since the law deems so highly of his wisdom and virtue, as not even to presume it possible for him to do any thing inconsistent with his station and dignity; and therefore has made no provision to remedy such a grievance. But of this sufficient was said in a former volume w, to which I must refer the reader.

u 1 Hal. P. C. 44.

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

Vol. IV.

c.

CHAPTER THE THIRD:

OF PRINCIPALS AND ACCESSORIES.

TT having been shewn in the preceding chapter what per

| fons are, or are not, upon account of their situation and circumstances, capable of committing crimes, we are next to make a few remarks on the different degrees of guilt among persons that are capable of offending; viz. as principal, and as accesory.

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 is who is present, aiding, and abetting the fact to be donea. Which presence need not always be an actual immediate standing by, within sight 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 b. And this rule hath also other exceptions: for, in case of murder by poisoning, a man may be a principal felon, by preparing and laying the poison, or persuading another to drink it who is ignorant of it's poisonous quality, or giving it to him for that purpose; and yet not administer it himself, nor be present when the very deed of poisoning is committed . And the same reasoning will hold, with regard to other murders committed in the absence

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of the murderer, by means which he had prepared beforehand, and which probably could not fail of their mischievous 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 á madman to commit murder, so that death thereupon ensues : in every of these cases the party of fending is guilty of murder as a principal, in the first degree. For he cannot be called an accessory, that necessarily presupposing a principal; and the poison, the pitfall, the beast, or the madman cannot be held principals, being only the instruments of death. As therefore he must be certainly guilty, either as principal or accessory, and cannot be so as accessory, it follows that he must be guilty as principal: and if principal, then in the first degree; for there is no other criminal, much less a superior in the guilt, whom he could aid, abet, or affist":

II. An accessory is he who is not the chief actor in the offence, nor present at it's performance, but is someway concerned therein, either before or after the fact committed. In considering the nature of which degree of guilt, we will, first, examine, what offences admit of accessories, and what not: secondly, who may be an accessory before the fact: thirdly, who may be an accessory after it: and, lastly, how accefsories, considered merely as such, and distinct from principals, are to be treated.

I. And, first, as to what offences admit of accessories, and what not. In high treason there are no accessories, but ! all are principals: the same acts, that make a man accessory in felony, making him a principal in high treason, upon account of the heinousness of the crime 6. Besides it is to be considered, that the bare intent to commit treason is many times actual treason; as imagining the death of the king, or conspiring to take away his crown. And, as no one can advise and abet such a crime without an intention to have it done, there can be no accessories before the fact; since the i i Hal. P. C. 617. 2 Hawk. P. C. 315. & 3 Inf, 138. I Hal. P. C. 613.. O 2

very

very advice and abetment amount to principal treason. But this will not hold in the inferior fpecies of high treason, which do not amount to the legal idea of compassing the death of the king, queen, or prince. For in those no ads viće to commit them, unless the thing be actually performed, will make a man a principal traitor h. In petit treason, murder, and felonies with or without benefit of clergy, there 'may be accessories : except only in those offences, which by judgment of law are sudden and unpremeditated, as manslaughter and the like; which therefore cannot have any acceflories before the facti. So too in petit larceny, and in all crimes under the degree of felony, there are no accessories either before or after the fact; but all persons concerned therein, if guilty at all, are principalsk: the same 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 distinguish the different fhades 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 fervant inftigates 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 prefent and assisting, he would have been guilty as principal of petty treason, and the stranger of murder m.

; 2. As to the second point, who may be an accessory before the fact; fir Matthew Hale" 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 principal. If A then advises B to kill another, and

1. Foster. 342.

i i Hal. P. C. 615. k Ibid. 613.

1 3 Inft, 139.
m 2 Hawk, P. C. 315.
Bi Hal. P. C. 615, 616.

B does

B does it in the absence 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 strangle it when born, and she does so; A is accessory to this murdero. And it is also settled P, 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 unlaw. ful 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 acceffory. But if A commands B to burn C's house; and he, in so doing, commits a robbery; now A, though acceffory to the burning, is not accessory to the robbery, for that is a thing of a distinct and unconsequential nature 4. But if the felony committed be the same 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, and 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',

3. An accessory after the fact may be, where a perfon, knowing a felony to have been committed, receives, relieves, comforts, or assists the felons. Therefore, to make an acceffory ex poft 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 apa prehended, tried, or suffering punishment, makes the assistor an accessory. As furnishing him with a horse to escape his

o Dyer. 186.
P Foster. 125
91 Hal. P. C. 617.

2 Hawk. P. C. 316.
s i Hal. P. C. 618.
1 2 Hawk. P. C. 319,
3

C

pursuers,

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