ACCESSARY.
- Of acceſſaries in general.
- Of acceſſaries before the fact.
- Of acceſſaries after the fact.
- How they are to be proceeded againſt.
I. Of acceſſaries in general.
ACCESSARY (quaſi accedens ad culpam) is be that is not the chief actor, but one that is concerned in the felony by commandment, aid, or receipt.
In the higheſt capital offence, namely, high treaſon, there are no acceſſaries, neither before nor after; for the conſenters, aiders, abetters, and knowing receivers and comforters of traitors, are all principals, 1 Hales Hiſt. 613.
But yet as to the courſe of proceeding, it hath been, and indeed ought to be the courſe, that thoſe who did actually commit the very fact of treaſon, ſhould be firſt tried, before thoſe that are principals in the ſecond degree: becauſe otherwiſe this inconvenience might follow, that the principals in the ſecond degree might be convicted, and yet the principals in the firſt degree may be acquitted, which would be abſurd. 1 H. H. 613.
In caſes that are criminal, but not capital, as in petit larceny and treſpaſs, there are no acceſſaries; for the acceſaries before fame degree as principals; and acceſaries after, by receiving the offenders, cannot be in law under any penalties as acceſaries, unleſs the acts of parliament that induce thoſe penalties do expreſsly extend to receivers or comforters, as felonies, 1 H. H. 613.
It remains therefore, that the buſineſs of this title of acceſſaries refers only to felonies, whether by the common law, or by act of parliament. 1 H. H. 613.
Concerning which, Lord Coke obſerves generally, that when anyoffence is felony, either by the common law, or by ſtatute, all acceſſaries both before and after are incidentally included. 3 Inſt. 59.
But as to felonies by act of parliament, Lord Hale diſtinguiſhes thereupon as follows: Regularly (he ſays) if an act of parliament enact an offence to be felony, tho' it mention nothing of acceſaries before or after, yet virtually and conſequentially thoſe that counſel or command the offence, are acceſaries before, and thoſe that knowingly receive the offender are acceſaries after. 1 H. H. 613.
But if the acts of parliament that makes the felony, in expreſs terms comprehend acceſaries before, and make no mention of acceſaries after, namely, receivers or comforters. there it ſeems there can be no acceſaries after; for the expreſſion of procurors, counſellors, or abetters, all which import acceſaries before, make it evident, thatthat
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