persuading another to drink it who is ignorant of its 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 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 inciting a madman to commit murder, so that death thereupon ensues; 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 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 assist.

Accessory.

II. An accessory is he who is not the chief actor in the offence, nor present at its performance, but is some way concerned therein, either before or after the fact committed.

Offences Admitting of Accessories.

1. And first, as to what offences admit of accessories, and what not. In high treason there are no accessories, but all are principals. 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 accessories before the fact. 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 principals: 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 shades of guilt in petty misdemeanours. It is a maxim that accessorius sequitur naturam sui 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 petit treason, and the stranger of murder.

Who May be Accessory Before the Fact.

2. As to the second point, who may be an accessory before the fact: Sir 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. 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 wise commands or counsels another to commit an unlawful act is accessory to all that ensue upon that unlawful act; but is not accessory to any act distinct from the other. 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 Titus, 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 Titus, and the manner of its execution is a mere collateral circumstance.

Who May be Accessory After the Fact.

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 suffering punishment, makes the assistor an accessory. As furnishing him with a horse to escape his pursuers, money or victuals to support him, a house or other shelter to conceal him, or open force and violence to rescue 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. 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 misdemeanour, and made not the receiver accessory to the theft; because he received the goods only and not the felon.

The felony must be complete at the time of the assistance given; else it makes not the assistant an accessory. But so strict is the law where a felony is actually complete, in order to do effectual justice, that the nearest relations are not suffered to aid or receive one another. If the parent assists his child, or the child

the parent, if the brother receives the brother, the master his servant, or the servant his master or even if the husband receives his wife, who have any of them committed a felony, the receivers become accessories er post facto. But a feme covert cannot become an accessory by the receipt and concealment of her husband; for she is presumed to act under his coercion, and therefore she is not bound, neither ought she, to discover her lord.

Accessories and Principals-Difference in Treatment.

4. The last point of inquiry is how accessories are to be treated, considered distinct from principals. And the general rule of the ancient law is this, that accessories shall suffer the same punishment as their principals: if one be liable to death, the other is also liable. Why then, it may be asked, are such elaborate distinctions made between accessories and principals, if both are to suffer the same punishment? For these reasons: 1. To distinguish the nature and denomination of crimes, that the accused may know how to defend himself when indicted. 2. Because, though by the ancient 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 but a few cases, which is denied to the principals and accessories before the fact in many cases. 3. Because formerly no man could be tried as accessory till after the principal was convicted or at least he must have been tried at the same time with him; though that law is now much altered, as will be shown more fully in its 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 counseling 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 nearly 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: since that is always an offence of a different species of guilt, principally tending to evade the public justice and is subsequent in its 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 same with regard to principals, and such accessories as offend before the fact is committed.

Chapter IV.

OF OFFENCES AGAINST GOD AND RELIGION

41-66.

The first species of offences against God and religion treated are apostasy, heresy, reviling the ordinances of the church, non-conformity, witchcraft, conjuration, enchantment or sorcery, and religious impostors. Blasphemy.

The fourth species of offences, more immediately against God and religion, is that of blasphemy against the Almighty by denying his being or providence; or by contumelious reproaches of our Saviour Christ. Whither also may be referred all profane scoffing at the holy scripture, or exposing it to contempt and ridicule. These are offences punishable at common law by fine and imprisonment, or other infamous corporal punishment; for Christianity is part of the laws of England.

Swearing and Cursing.

V. Somewhat allied to this, though in an inferior degree, is the offence of profane and common swearing and cursing. By the last statute against which, 19 Geo. II. c. 21, which repeals all former ones, every labourer, sailor, or soldier profanely cursing or swearing shall forfeit Is.; every other person under the degree of a gentleman, 2s.; and every gentleman, or person of superior rank, 5s.; to the poor of the parish: and, on the second conviction, double; and for every subsequent offence, treble the sum first forfeited; with all charges of conviction: and in default of payment shall be sent to the house of correction for ten days.

Simony.

VIII. Simony, or the corrupt presentation of any one to an ecclesiastical benefice for gift or reward, is also to be considered as an offence against religion.

Profanation of the Lord's Day.

IX. Profanation of the Lord's day, vulgarly (but improperly) called sabbath-breaking, is a ninth offense against God and religion, punished by the municipal law of England.

Drunkenness.

X. Drunkenness is also punished, by statute 4 Jac. I. c. 5, with the forfeiture of 5s., or the sitting six hours in the stocks: by which time the statute presumes the offender will have regained his senses, and not be liable to do mischief to his neighbors. And there are many wholesome statutes by way of prevention, chiefly passed in the same reign of King James I., which regulate the licensing of alehouses, and punish persons found tippling therein; or the masters of such houses permitting them.

Lewdness.

XI. The last offence which I shall mention, more immediately against religion and morality, and cognizable by the temporal courts, is that of open and notorious lewdness; either by frequenting houses of ill fame, which is an indictable offence; or by some grossly scandalous and public indecency, for which the punishment is by fine and imprisonment. The temporal courts take no cognizance of the crime of adultery otherwise than as a private injury.

Chapter V.

OF OFFENCES AGAINST THE LAW OF NATIONS. OFFENCES 66-74.

The Law of Nations.

The law of nations is a system of rules, deducible by natural reason, and established by universal consent among the civilized inhabitants of the world; in order to decide all disputes, to regulate all ceremonies and civilities, and to insure the observance of justice and good faith in that intercourse which must frequently occur between two or more independent states, and the individuals belonging to each. This general law is founded upon this principic. that different nations ought in time of peace to do one another all the good they can, and in time of war as little harm as possible, without prejudice to their own real interests. Such rules must necessarily result from those principles of natural justice in which all the learned of every nation agree; or they depend upon mutual compacts or treaties between the respective communities, in the construction of which there is also no judge to resort to but the law of nature and reason, being the only one in which all the contracting parties are equally conversant and to which they are equally subject.

The Principal Offences.

The principal offences against the law of nations, animadverted on as such by the municipal laws of England, are of three kinds: 1. Violation of safe conducts; 2. Infringements of the rights of embassadors; and 3. Piracy.

Violation of Safe Conducts.

I. As to the first, violation of safe-conducts or passports, expressly granted by the king or his embassadors to the subjects of a foreign power in time of mutual war, or committing acts of hostility against such as are in amity, league, or truce with us, who are here under a general implied safe-conduct: these are breaches of the public faith, without the preservation of which there can be no intercourse or commerce between one nation and another: and