An accessary after the fact is the crime to the mother of a bastard child, unborn, to strangle it when born, and she does so, A. is accessary to this murder (o). And it is also settled (p), that whoever procureth a felony to be committed, though it be by the intervention of a third person (4), is an accessary before the fact. It is likewise a rule, that he who in anywise commands or counsels another to commit an unlawful act, is accessary to all that ensues upon that unlawful act; but is not accessary 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 accessary (5). But if A. commands B. to burn C.'s house; and he, in so doing, commits a robbery; now A., though accessary to the burning, is not accessary to the robbery, for that is a thing of a distinct and unconsequential nature (q) (6). 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 accessary 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 (r). 3. An accessary after the fact may be, where a person, one who knows knowing a felony to have been committed, receives, relieves, comforts, or assists the felon (s). Therefore, to make an afterwards pro- accessary ex post facto, it is in the first place requisite that have been com mitted, and tects or assists the criminal. (0) Dyer, 186. (p) Foster, 125. (9) 1 Hal. P. C. 617. (r) 2 Hawk. P. C. 316. (4) Without any personal communication, even with the principal, 2 Hawk. P. C. 440. (5) This must be understood to have reference to a case where the command is to beat violently. 1 Hale, 442, 3 & 4; 1 East, P. C. 257, 8 & 9; Kel. 109, 117. (6) The crime must be of the same complexion, and not on a different object than that to which the agent was instigated. Thus if A. commands B. to burn a certain house with which he is well acquainted, and he burns another, or to steal a certain horse, and he steals a different one, A. will not be liable to be indicted as accessary to the crimes committed, because B. acting in contradiction to the commands of A., and that knowingly, it is on his part a mere ineffectual temptation, and the specific crime he planned was never completed; Plowd. 475; Hawk. B. 2, c. 29, s. 18; 1 Hale, 617; Com. Dig. Justices, T. 1; Fost. 360. A person indicted as an he knows of the felony committed (t) (7). 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 accessary. 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 (v). 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 accessary to the felony. But to relieve a felon in gaol with clothes or other necessaries, is no offence: for the crime imputable to this species of accessary is the hindrance of public justice, by assisting the felon to escape the vengeance of the law (u). 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 misdemesnor, and made not the receiver accessary to the theft, because he received the goods only, and not the felon (w): but now by the statutes 5 Ann. c. 31, and 4 Geo. I. c. 11, (8), all such receivers are made accessaries (where the principal felony admits of accessaries) (x), (t) 2 Hawk. P. C. 319. (w) 1 Hal. P. C. 620. [*38 ] accessary before the fact, cannot be convicted of that charge upon evidence shewing him to have been present, aiding and abetting; Rex v. Gordon, 1 Leach, 515; 1 East, P. C. 352. It is not essential that there should have been any direct communication between an accessary before the fact and the principal felon. It is enough if the accessary direct an intermediate agent to procure another to commit the felony; even if the accessary does not name the person to be procured, but merely directs the agent to procure some person; Rer v. Cooper, 5 C. & P. 535. (7) He must know that the felon is guilty; and it seems to be the better opinion, that an implied notice is not sufficient; 1 Hale, 323 & 622 A., a A. lad, who was a clerk in a banking- (8) 5 Ann. c. 31, is repealed by 7 Where a felony is complete, a parent, child, 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 (9). In France such receivers are punished with death and the Gothic constitutions distinguished also three sorts of thieves, "unum qui consilium daret, alterum qui contrectaret, tertium qui receptaret et occuleret: pari poenæ singulos obnoxios (x) (10)." The felony must be complete at the time of the assistance given; else it makes not the assistant an accessary. As if servant, or hus. one wounds another mortally, and after the wound given, but brother, master, band, may be an the fact; but not a wife. accessary after before death ensues, a person assists or receives the delinquent this does not make him accessary to the homicide; for, till death ensues, there is no felony committed (y). 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 his parent, if the brother receives his brother, the master his servant, or the servant his master, or even if the husband relieves his wife, who have any of them committed a *felony, the receivers become accessaries. ex post facto (2). But a feme covert cannot become an accessary 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 (a) (11). [*39 ] (r) Stiernhook, de jure Goth. 1. 3, c. 5. (y) 2 Hawk. P. C. 320. c. 29, such receivers may be indicted (9) The 1st sec. of 18 Geo. II. c. 27, (2) 3 Inst. 108. 2 Hawk. P. C. 320. (a) 1 Hal. P. C. 621. 16, this offence is punishable by transportation for life, or for any term not less than seven years, or by imprisonment not exceeding four years, with public or private whippings for male offenders. (10) "One who counsels the thief; another who is concerned in the theft; and a third who receives and conceals the thief or the stolen property: all are liable to the same punishment." (11) But if the wife alone, the husband being ignorant of it, do receive any other person, being a felon, the the punishment accessaries son. It does cessaries before 4. The last point of inquiry is, how accessaries are to be Distinction in treated, considered distinct from principals. And the gene- of principals and ral rule of the ancient law, borrowed from the Gothic consti- founded in reatutions (b), is this, that accessaries shall suffer the same pu- not apply to acnishment as their principals: if one be liable to death, the the fact. other is also liable (c); as, by the laws of Athens, delinquents and their abettors were to receive the same punishinent (d). Why then, it may be asked, are such elaborate distinctions made between accessaries 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; the commission of an actual robbery being quite a different accusation from that of harbouring the robber. 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; accessaries after the fact being still allowed the benefit of clergy in all cases, except horsestealing (e) and stealing of linen from bleaching grounds ()(12); which is denied to the principals, and accessaries (b) See Stiernhook, ibid. (e) 3 Inst. 188. (d) Pott. Antiq. b. 1, c. 26. (e) Stat. 31 Eliz. c. 12. wife is accessary, and not the husband. I H. H. 621. But if the husband and wife both receive a felon knowingly, it shall be adjudged only the act of the husband, and the wife shall be acquitted. Ibid. (12) See ante 38 in notis. By st. 9 Geo. IV. c. 31, accessaries before the fact in cases of murder, are rendered equally guilty with the principal. By st. 7 & 8 Geo. IV. c. 29, intituled An Act for consolidating and amending the Laws in England relating to Larceny and other Offences connected therewith," it is enacted, in the 61st section, "That in every case of felony punishable under this Act, every principal in the second degree, and every accessary before the fact, shall be VOL. IV. E punishable with death, or otherwise, in [*40 ] before the fact, in many cases; as among others, in petit treason, murder, robbery, and wilful burning (g). And perhaps if a distinction were constantly to be made between the punishment of principals and accessaries, 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 person to execute the deed itself; as the danger would *be greater than that of his accomplices, by reason of the difference of his punishment (). 3. Because formerly no man could be tried as accessary, 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 shewn more fully in its proper place. 4. Because, though a man be indicted as accessary 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 some doubt, whether, if a man be acquitted as principal, he can be afterwards indicted as accessary before the fact; since those offences are frequently very near allied, and therefore an acquittal of the guilt of one may be an acquittal of the other also (i). But it is clearly held, that one acquitted as principal may be indicted as an accessary 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 accessary will appear to be highly necessary; though the punishment is still much the same with regard to principals, and such accessaries as offend before the fact is committed. (13). (g) 1 Hal. P. C. 615. (i) 1 Hal. P. C. 625, 626; 2 Hawk. P. C. 373; Foster, 361. As these three Acts incorporate nearly every offence of murder, felony, and misdemeanor mentioned and adverted to by the learned Commentator, it is deemed prudent to subjoin an abstract of them in this chapter as far as they respectively relate to the distinctive punishments against principals in the second degree, accessaries before the fact, accessaries after the fact, and aiders or counsellors in misdemeanors, that the reader may carry them with him in his subsequent stages through the volume. (13) By 7 Geo. IV. c. 64, § 10, if any person shall become an accessary after the fact to any felony, whether the same be a felony at common law, or by |