CHAP. XII.

OF PRINCIPALS AND ACCESSORIES IN GENERAL.

Of Principals and Accessories in general. - Of Principals and Accessories in the Crimes noticed in the Articles of War. Accessories in Murder, Unnatural Offences, and Robbery. Sections of the Act 7 Geo. 4. cap. 64. applicable thereto.

THERE are crimes which admit of accessories, and those which do not. There can be no accessories in treason: it is the highest crime of which a citizen can be guilty, and all who are implicated in it are deemed as principals. Neither can there be accessories before the fact in manslaughter, which must be an unpremeditated offence. If a principal and an accessory be indicted for murder, and the principal be found guilty of manslaughter only, the accessory must be acquitted. Crimes below the degree of felony do not admit of accessories. All those who in felony would be accessories before the fact, in offences under the degree of felony, provided such offences admit of participation, are principals, and must be indicted as such.*

* 4 Black. Comm. 35.

The crimes noticed in the Articles of War may be classed under two heads, namely, "Felonies," and "Misdemeanours." Felony is defined to be an offence, a conviction of which at common law, or in virtue of any statute or statutes, occasions a forfeiture of lands or goods.* The offences specified in the 3rd, 4th, 5th, 6th, 10th, 11th, 12th, 13th, 14th, 15th, 17th, 19th, 20th, 22nd, 25th, 28th, 29th, and 30th articles of war are of a felonious nature; - those in the 1st, 2nd, 7th, 8th, 9th, 18th, 21st, 23rd, 24th, 31st, 32nd and 33rd may be considered as misdemeanours; - and those in the 16th, 26th and 27th include both felonies and misdemeanours.

All persons, being in actual service and full pay, in the fleet or ships of war of Her Majesty, counselling, procuring, or commanding others to commit any of the offences mentioned in the 3rd article, relative to holding illegal correspondence with the enemy;- in the 4th, to not acquainting the superior officer with any letter or message from an enemy; the 5th, to persons being found to be spies; the 6th, to relieving an enemy, &c.; the 14th, to delaying or discouraging the service on any pretence; - the 19th, to mutinous assemblies ; the 22nd, to striking a superior officer; - the 25th, to burning any magazine or vessel not belonging to the enemy (when such burning shall be a hindrance to the service);

* 4 Black. Comm. 93.

-the 26th, to wilfully stranding the ship;-the 27th, to persons forsaking their stations; and the 30th, to robbery (where the articles stolen are public stores), would be liable to be tried for a breach of the 22nd article, which provides that "If any person in the fleet shall conceal any traitorous or mutinous practice or design, being convicted thereof by the sentence of a court-martial, he shall suffer death, or such other punishment as a courtmartial shall think fit; and if any person in or belonging to the fleet shall conceal any traitorous or mutinous words spoken by any to the prejudice of His Majesty or government, or any words, practice, or design tending to the hindrance of the service, and shall not forthwith reveal the same to the commanding-officer, or being present at any mutiny or sedition shall not use his utmost endeavours to suppress the same, he shall be punished as a courtmartial shall think he deserves."

The 16th article provides for the trial and punishment of those who entice others to desert, and of those who receive and entertain deserters; and the 31st article of those who shall command, counsel, or procure any other person to make or sign a false muster, or muster-book, or aid or abet any other person in the making or signing thereof.

It is only to murder, buggery or sodomy, and robbery (where the articles stolen are not public stores) that our attention remains to be directed; and we conceive that the three following sections

of the act 7 Geo. 4. cap. 64. are a sufficient authority to authorise courts-martial to proceed to the trial and punishment of accessories to these crimes.

Sect. 9. "Be it enacted, that if any person shall counsel, procure, or command any other person to commit any felony, whether the same be a felony at common law, or by virtue of any statute or statutes made or to be made, the person so counselling, procuring, or commanding shall be deemed guilty of felony, and may be indicted and convicted, either as an accessory before the fact to the principal felony, together with the principal felon, or after the conviction of the principal felon, or may be indicted and convicted of a substantive felony, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice, and may be punished in the same manner as any accessory before the fact to the same felony, if convicted as an accessory, may be punished; and the offence of the person so counselling, procuring, or commanding, howsoever indicted, may be inquired of, tried, determined, and punished by any court which shall have jurisdiction to try the principal felon, in the same manner as if such offence had been committed at the same place as the principal felony, although such offence may have been committed either on the high seas, or at any place on land, whether within His Majesty's dominions or without; and that in case the principal felony shall have been

committed within the body of any county, and the offence of counselling, procuring, or commanding shall have been committed within the body of any other county, the last mentioned offence may be inquired of, tried, determined, and punished in either of such counties; Provided always that no person who shall be once duly tried for any such offence, whether as an accessory before the fact, or as for a substantive felony, shall be liable to be again indicted or tried for the same offence."

Sect. 10. "Be it enacted that if any person shall become an accessory after the fact to any felony at common law, or by virtue of any statute or statutes made or to be made, the offence of such person may be inquired of, tried, determined, and punished by any court which shall have jurisdiction to try the principal felon, in the same manner as if the act by reason whereof such person shall have become an accessory had been committed at the same place as the principal felony, although such act may have been committed either on the high seas or at any place on land, whether within His Majesty's dominion or without; and that in case the principal felony shall have been committed within the body of any county," &c.

Sect. 11. "And in order that all accessories may be convicted and punished in cases where the principal felon is not attainted, be it enacted, That if any principal offender shall be in anywise convicted of any felony, it shall be lawful to proceed against any accessory, either before or after the