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remark another exception; that a wife may be indicted and set in the pillory with her husband, for keeping open a house for improper company; for this is an offence touching the domestic economy or government of the house, in which the wife has a principal share; and is also such an offence as the law presumes to be generally conducted by the intrigues of the female sex. And in all cases, where the wife offends alone, without the company or coercion of her husband, she is responsible for her offence, as much as any femesole.

CHAPTER III.

OF PRINCIPALS AND ACCESSORIES.

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 present, aiding, and abetting the fact to be done. 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. 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 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 before-hand, and which probably could not fail of their mischievous effect.

II. An accessory is he who is not the chief actor in the offence, nor present at its 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 accessories, considered merely as such, and distinct from principals, are to be treated.

1. 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, make him a principal in high treason, upon account of the heinousness of the crime. 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 And, as no one can advise and abet such a crime without an intention to have it done, there

crown.

can be no accessories before the fact; since 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 compassing 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 sudden and unpremeditated, as manslaughter and the like; which therefore cannot have any accessories before the fact. But in petit larceny, 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 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, quæ de minimis non curat, does not descend to distinguish the different shades of guilt in petty misdemeanors.

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. 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 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 wise 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 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, 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 its execution is a mere collateral circumstance.

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 know 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 assister 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 misdemeanor, and made not the receiver accessory to the theft, because he received the goods only, and not the felon 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; and in the case of receiving linen goods stolen from the bleaching-grounds, are by statute 18 Geo. II. c. 27. declared felons without benefit of clergy.

4. The last point of inquiry is, how accessories are to be treated, considered distinct from principals. Now by the statutes relating to the benefit of clergy a distinction is made between them:

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