that the law-makers did not intend to include acceſſaries after, which is an offence of a lower degree than acceſſaries before. 1 H. H. 614
And although it be generally true, that an act of parliament creating a felony, renders conſequentially acceſaries before and after within the fame penalty, yet the ſpecial penning of the act of parliament in ſuch caſes, ſometimes varies the caſe; 'Thus the ſtatute of 3 H. 7 c. 2. for taking away women, makes the offender, and the procuring and abetting, yea and wittingly receiving alſo, to be all equally principal felonies, and excluded of clergy. Again. the ſtatute of 27 Eliza. c. 2. makes the coming in of 2 jeſuit treaſon the receiving of relieving of him felony, the contributing of money to his relief a premunire. So that acts of parliament may diverſify the offences of acceſſary or principal, according to the various penning thereof, and ſo have done in many caſes, 1 H. H. 614. 615.
Alſo ſtatute excluding the principals from the benefit of clergy, doth not thereby exclude the acceſſaries before or after; neither doth ſtatute, excluding the acccſaries, thereby exclude the principals, 2 Haw. 342.
II. Of acceſſaries before the fact.
An acceſſary before the fact committed, is be that being abſent at the time of the felony committed, doth yet procure, counſel, command or abet another to commit felony.
Being abſent at the time of the felony committed] For if he in preſent, he is not an acceſſary, but a principal.
So alſo, if divers come to commit an unlawful act, and be preſent at the time of the felony committed, tho' one of them only doth it, they are all principals. Hale's Pl. 215.
So if one preſent move the other to ſtrike; or if one preſent did nothing, but yet came to aſſist the party if needful; or if one hold the party while the felon ſtrikes him: or if one preſent deliver his weapon to the other that ſtrikes: for they are preſently aiding abetting, or comforting. id. 216.
But if one came caſually, not of the confederacy, tho' he hindered not the felony, he is neither principal or acceſſary, altho’ he apprehend not the felon : but for his negligence he is puniſhable by fine and impriſonment. Hale's Pl. 246. 2. Haw. 343.
Alſo in ſome cafes, even a perſon abſent may be principal: as he thatputs poiſon into any thing to poiſon another, and leaves it, tho' not preſent when it is taken: And ſo it ſeems all that are preſent whenever the poiſon is ſo inſuſed, and conſenting thereunto. Hales Pl 216.
Procure, counſel, command or abet] But here note ſome diverſities:
As
1. When the principal doth not accompliſh the fact altogether in the ſame ſort, as it was before hand agreed between bin and the acceſſary And
