36 PUBLIC BOOK IV.
before the fact ; fmce the very advice and abetment amount to principal treaibn. But this will not hold in the inferior fpecies of high treafon, which do not amount to the legal idea of com- paffmg the death of the king, queen, or prince. For in thofe no advice to commit them, unlefs the thing be actually per- formed, will make a man a principal traitor 5 . In petit treafon, murder, and felonies of all kinds, there may be acceffories : except only in thofe offences, which by judgment of law arc iudden and unpremeditated, as manflaughter and the like ; which therefore cannot have any acceffories before the fact h . But in petit larciny, or minute thefts, and all other crimes un- der the degree of felony, there are no acceffories ; but all per- fbns concerned therein, if guilty at all, are principals' :. -the (lime rule holding with regard to the higheft and lowelt offences; though upon different reafons. In treafon all are principals, propter odium dclid}: ; in trefpafs all are principals, becaufe the law, quae de minimh non curat, does not defcend to diftinguifh the different iliades of guilt in petty mifdemefnors. It is a maxim, that accej/brius fcqnitur naturam fid principals k : and therefore an acceffory cannot be guilty of a higher crime than his principal; being only punifhed, as a partaker of his guilt. So that if a fervant mitigates a ftranger to kill his matter, this being murder in the ftranger as principal, of courfe the fervant is acceffory only to the crime of murder; though, had he been prefent and affifting, he would have been guilty as principal of petty treafon, and the ftranger of murder 1 .
2. As to the fecond point, who may be an acceffory before the fact; fir Matthew Hale m defines him to be one, who being abfent at the time of the crime committed, doth yet procure, counfel, or command another to commit a crime. Herein ab- fence is neceffary to make him an acceffory ; for if fuch procu- rer, or the like, be prefent, he is guilty of the crime as prin-
e Fofter. 342. k 3 Inft. 139. h iHal.P. C. 615. > 2 Hawk. P. 0.315. i. m i Hal. P.C.6i 5 , 6i<r. cipal.
