cause that necessarily supposes the fact to have happened on a sudden; for if it had been done upon premeditation, it would have been murder. Moor, 461. And quare, If they who are charged as accessaries (h) after (h) Vide Crom. should not also be discharged at common law, where the principal 44. is found guilty of manslaughter, and admitted to the benefit of 3 Inst. 55. his clergy, because in such case it could not appear by any judg- C. Eliz. 540. ment that there was a principal. But the law in this respect Vide Foster, seems to be altered by 1 Ann. c. 9. set forth more at large in the following part of this Chapter, which makes a conviction equivalent, as to this purpose, to an attainder. Sect. 25. Before the statute of 11 and 12 Will. 3. c. 7. accessaries to piracy were not within the purview of 28 Hen. 8. c. 15. by which piracy is triable according to the course of the common law. But for this I shall refer the reader to Book the first, chapter twenty. As to the THIRD POINT, viz. In what cases a man shall be adjudged an accessary after: I shall endeavour to shew, 1. What kind of receipt of a felon will make the receiver such an accessary. 2. Whether it be necessary that such receiver know of the felony. 3. Where the receivers of a felon shall be excused in respect of the relation they bear to him. 4. How far the felony must be complete at the time of the receipt, to make the receiver an accessary. As to the first particular, viz. What kind of receipt of a felon will make the receiver an accessary after the fact. 363. Dalton, c. 108. 1 Hale, 618. Sect. 26. It seems agreed (i) that, generally, any assistance (i) 2 Inst. 183. whatever given to one known to be a felon, in order to hinder his S. P. C. 41. being apprehended or tried, or suffering the punishment to which Lamb. b. 2. c. he is condemned, is a sufficient receipt for this purpose; as where 7. f. 289, &c. one assists him with a (k) horse to ride away with, or with money Summary, 218. or victuals to support him in his escape; or where one harbours Dalton, c. 108. and (1) conceals in his house a felon under pursuit, by reason Crompton, 43. whereof the pursuers cannot find him; and much more, where (k) Sum. 218. one harbours in his house, and openly (m) protects such a felon, Crompton, 43. by reason whereof the pursuers dare not take him. (1) Dalton, cap. Dalton, c. 108. 108. F. Corone, 427. Lamb. b. 2. c. 7. s. 291. S. P. C. 43. Crompton, 42. (m) 26 Assize, 47. Adj. B. Cor. 130. F. Corone, 195. Sect. 27. Also I take it to be settled at this day, that whoever (n) rescues a felon from an arrest for the felony, or voluntarily (0) suffers him to escape, is an accessary to the felony. Contra, F. Corone, 48. S. P. C. 43. Dalton, c. 108. 1 H. 7. 6. B. Corone, 130. sect. 10. 22. 26. (n) Sup. c. 21. F. Cor. 158. s. 7, 8. 433. Summary, 116. (0) Sup. c. 19. Also some have said, (p) that all those are in like manner guilty (p) Sup. s. 10. who oppose the apprehending of a felon. and c. 17. s. 1. But (q) B. Escape. 43. S. P. C. 41. (s) 25 E. 3. 39. Ab. F. Cor. 26. (t) 7 H. 6. 42. Ab. B. Indict. 4. F. Indict. 11. (u) S. P. C. 41. (1) Dalt. c. 108. See also Crom. 42. (s) 9 Hen. 4. 1. Ab. F. Cor. 76. B. Corone, 26. B. Escape, 43. But for these matters I shall refer the reader to the former part of this book, wherein they are more fully handled. Sect. 28. It seems to be holden both by (q) Brook and (7) Staundforde, that the bare receiving into one's house a person known to be a felon, is sufficient without any farther circumstances to make a man an accessary to the felony. And this seems to be favoured by the Year Books of Edward the Third (s) and Henry the Sixth (t). Also it seems to be holden both by (u) Staundforde and (x) Dalton, that not only such a receipt of such a felon into one's house, but any other favour or aid voluntarily afforded him, as by (y) 26 Ass. 47. relieving him with money, meat, or drink, is sufficient for this Ab. B.Cor. 103. purpose. But it is observable, that the case in the Book of (y) F. Corone, 195. Assizes whereon Dalton seems chiefly to ground his opinion, and which is more accurate than any other Year Book I met with on this subject, is of one who was indicted" for having received a "felon, and for that no one by reason of him dared to take him." Whereupon it is said by Shard," If one receive a felon in favour "and aid of the felony, I hold such a one an accessary to the "felony." Also it is further observable, that the Year Book of Henry the Fourth, (z) on which the above-mentioned opinion of Brook seems to be grounded, seems to prove only that every receiver of a felon, knowing him to be such, is indictable, but not that he is indictable for felony; and the chief purport of the case is to shew, that one who, having a felon in his house, voluntarily suffers him to go at large, is not guilty of a felonious escape, unless (4) Lamb. b. 1. he had arrested him. To which may be added, that (a) Lambard doth not say generally, that all those who receive a felon, knowing him to be such, are accessaries after; but all those who feloniously, and with an evil mind receive a felon, &c. And Sir Edward Coke, in his (b) Second Institute, describes such accessaries as those who knowing a felony receive the felon, and not only conceal his offence, but favour and aid him, that he be not known. And in his (c) Third Institute he saith, " If one receive a thief, "and aid and maintain him in his felony, he is an accessary;" by which expressions it seems to be implied, that there ought to be some other circumstance besides that of the bare suffering of a person known to be a felon to be in one's house, to make a man an accessary. s. 289. (b) Page 183. (c) Page 134. (d) 1 Hale, 620. Dalton, c. 108. Crompton, 42. (e) Dalt. c. 108. Crompton, 42. Lamb. b. 2. f. 209. are to the Sect. 29. However, it seems to be (d) agreed, that no one shall be adjudged an accessary to a felony for receiving into his house a person under bail for such crime, or for relieving with money or victuals a person so bailed, or in prison; and the reason given by (e) Dalton is, because the felony cannot be concealed, nor the trial hindered by it. And if this be a sufficient reason, why may not any other receipt or relief of a felon, whereby the felony is not concealed, nor the trial, &c. hindered, come under the like rule? as it seems (f) agreed, that the sending a letter to procure the Summary, 219. deliverance of a felon, or the instructing him to (g) read, in order to entitle him to the benefit of clergy, shall do; and even the (h) same purpose. (f) 26 Ass. 47. 1 Hale, 621. 3 Inst. 139. Lamb. b. 2. f. 289, 290. (g) 3 Inst. 139. Summary, 219. 1 Hale, 621. (h) 3 Inst. 139. advising advising his friends to persuade witnesses not to come against him at his trial; and also the (i) labouring of witnesses in pursuance (i) 3 Inst. 139. of such advice. And yet the two last of these practices are certainly very highly criminal; and though they do not tend totally to prevent the trial, yet are the most likely means to make it fruitless and ineffectual. Also it seems to be agreed, that the suffering a felon to escape (4) Sum. 219. 1 Hale, 618. (k) without arresting him, () or the bare concealment of a felony, though they are crimes of a very high nature, do not make a man Moor, 8. an accessary. (1) Sup. s. 10.27. Yelverton, 4, 5. 1 1 Hale,619.620. Sect. 30. Also I take it to have been generally agreed, before (m) Aleyn, 57. the statute of 3 and 4 Will. and Mary, c. 9. that neither the re- Style, 91. ceiving of (m) other men's goods, known to have been stolen, nor C. Eliz. 888. the taking of one's (n) own goods again from one that had stolen Lamb. 290, 291. them, on an agreement not to prosecute him, nor the taking of R. Abr. 68. any other (0) reward on such an agreement, did make a man an Summary, 218. accessary to the felony, unless he also had received the thief. But 25 E. 3. 39. now it is enacted by that statute, and by 5 Ann. c. 31. s. 5. "That Ab. F. Cor. 126. "if any person or persons shall buy or receive any goods or chattels 27 Assize, 69. "that shall be feloniously taken or stolen from any other person, knowing the same to be stolen, he or they shall be taken and "deemed an accessary or accessaries to such felony after the fact, "and shall incur the same punishment as an accessary or acces"saries to the felony after the felony committed." And it is further enacted by 1 Ann. c. 9. "That such persons may be prosecuted for a misdemeanour, before the principal shall be convicted," as shall be shewn more at large in the following part of this chapter, sect. 44. Ab. F. Cor. 208. B. Cor. 114. Con. Cromp. 42, 43.39. It is made a Qu. Crom. 42. 1 R. Abr. 67. Cro. Eliz. 486. Vide Noy, 90. (0) Sum. 130. S Inst. 134. 138. Lamb. 290. 2 And. Qu. Moor, 8. and Dalton, c. 108. Vide Bk. 1. c. 19. "Tit. Receivers." Appeal, 8. For the offences in buying and receiving stolen goods, vide Bk. 1. c. 19. den, 476. Sect. 31. It doth not seem to be settled, (p) whether the re- (p) Vide Plow. ceipt of a felon who is pardoned by the king, but still liable to an Dalton, c. 108. appeal, may not make the receiver an accessary. As to the second particular, viz. Whether it be necessary that a man know the felony in order to make him an accessary by receiving the felon. necessary that Sect. 32. There can be no doubt but that it is such receiver have (q) notice of the felony either express or implied; and therefore it is the settled form of all (r) indictments and appeals (s) against accessaries after the fact, expressly to charge them with having known that the person received by them had committed the principal felony. B. Cor. 150. 96. 429. 22 Assize, 55. Summary, 218. (s) Rastal, 43. 54. 51. Co. Ent. 56, 57. 3 Peer. Wms. 193. Sect. 33. But it is not clearly settled, whether in some cases () S. P. C. 41. an implied notice of the felony be not sufficient for this purpose; Crompton, 43. as where a man receives a person attainted of felony, in the same Dyer, 355. county wherein he is attainted; in which case it hath been (t) F. Cor. 377. holden, that he is an accessary to the felony, whether he had Dalton, c. 108. actually notice of the attainder or not; because it appears by 42, 43. and see matter of record in the same county, whereof every man is said to 1 Hale, 323. Qu. 7 Hen. 6. be contra. (u) Co. Lit. 391. (v) S. P. C. 41. Dalton, c. 108. Lamb. 293. and see Rex v. Pers. 495. Burridge, 3 be conusant. But to this it may be answered, that felony implies in it something of wilfulness and baseness; something (u) felleo animo perpetratum; and that it would be extremely hard, by such a forced way of reasoning, to presume a man guilty of it, who probably may be entirely innocent; and to this opinion the greater number of (v) authorities seem to incline. where Lord Hardwicke says, that the true way of understanding the authorities upon this point is, that "an outlawry or attainder in "a particular county may, as the case shall happen to be circumstanced, be some evidence to a jury of "notice to an accessary in the same county; but that it cannot with any reason or justice create an ab❝solute legal presumption of notice, so as to excuse the not charging the fact to be done knowingly in "the indictment." (x) Lamb. b. 2. c. 9. Bract. b. 3. c. 32. s. 9. Dalton, c. 108. 1 Hale, 621. sect. 22. See B. 1. c. 1. (y) Bract. 1. 3. c. 32. s. 9, 10. (a) 21 Hen. 7. See B. Cor. 62. Dalton, c. 108. Lamb. b. 2. c.7. (b) Sup. c. 18. s. 13. c. 19. s. 25. As to the third particular, viz. Where the receivers of a felon shall be excused in respect of the relation they bear to him. Sect. 34. It seems agreed, (r) that the law hath such a regard to that duty, love, and tenderness, which a wife owes to her husband, as not to make her an accessary to felony by any receipt whatsoever given to her husband. Yet if she be any way guilty of (y) procuring her husband to commit it, it seems to make her an accessary before the fact in the same manner as if she had been sole. Also it seems agreed, that no other relation beside that of a wife to her husband, will exempt the receiver of a felon from being an (2) accessary to the felony. From whence it follows, that if a master receive a servant, or a servant a master, or a brother a brother, or even a husband a wife, they are accessaries in the same manner as if they had been mere strangers to one another. Crompton, 42. s. 22. Summary, 219. S. P. C. 26. As to the fourth particular, viz. How far the felony must be complete at the time of the receipt, to make the receiver an ac cessary. Sect. 35. It seems to be clearly agreed, (a) that a man shall never be construed an accessary to a felony, in respect of the receipt of an offender, who at the time of the receipt was not a felon, but afterwards becomes such by matter subsequent; as where one receives another who has wounded (b) a person dangerously, that happens to die after such receipt. For though the offender be for special reasons adjudged to some purposes guilty of homicide ab initio, yet he shall not be so esteemed in respect of any others but himself; for fictions of law shall never be carried farther than the reasons which introduce them necessarily require. Having thus shewn who are to be esteemed principals, and who accessaries; I am now to shew in what manner they are to be arraigned. And I shall endeavour to shew, 1. How far it is necessary that the principal be actually attainted or convicted before the accessary shall be proceeded against. 2. Whether the accessary shall in any case be arraigned or tried before any principal hath appeared. 3. Whether 3. Whether a person charged as accessary to more than one, may be tried before all the principals have appeared. 4. Whether the principal and accessary may be both tried by the same inquest, and in what manner they are to be tried. 5. In what manner the accessary shall be tried, where his offence arises in a different county from that of the principal. As to the FIRST POINT, viz. How far it is necessary that the (c) Vide 9 Ass. principal be actually attainted (c) or convicted before the accessary Bract. 128. 13, shall be proceeded against. 14. and the notes to the fourth of these points. Sect. 36. It seems clear, that whatsoever the nature of the felony (d) F. Ass. 291. be, if the principal be in such manner (d) acquitted of it, (e) Summary, 221. Conspira. 4. whether at the suit of the king or of the party, that he may plead 1 Hale,623,624. such acquittal in (ƒ) bar of any subsequent prosecution for the S. P. C. 47, 48. same felony, the accessary shall not be arraigned, but shall be Sup. c. 23. s. discharged, according to the rule, ubi factum (g) nullum, ibi fortia F. Corone, 222. nulla. 140. 33 H. 6. 1. Rastal, 57. Raymond, 477. F. Off. de Court, 23. (e) F. Cor. 277. (ƒ) Vide sup. c. 23. sect. 142. (g) 4 Co. 43. S. P. C. 47. Sect. 37. How far the accessary shall be discharged upon the principal's being found guilty of manslaughter, &c. hath been already shewn, section 24. Sect. 38. It is certain, that the exigent shall not be awarded against the accessary before the principal is attainted, as hath been more fully shewn, Ch. 27. sect. 128, &c. (i) 2 Inst. 184. Sect. 39. It seems also to be clear, that where the law requires the attainder or conviction of the principal before the accessary shall be convicted, it requires that such attainder and conviction (h) B. App. 19. of the principal be on the (h) same suit, and for the same crime, Plowden, 98,99. of which the accessary is to be convicted; for it is agreed, that Summary, 221. an attainder of the principal at the suit of the (i) king no way B. Corone, 19. helps the proceedings against the accessary at the suit of the 7 H. 4. 27. party, and sic è converso. Also it seems to be agreed, that the attainder of the principal of one felony is no way (k) material as to the proceedings against the accessary for another. S. P. C. 47. Dyer, 133. (k) 40 Ass. 25. F. Cor. 58. 2. R. 3. 21, 22. Sum. 222, 223. Sect. 40. But where the principal is actually attainted, though erroneously, of the same felony with which the accessary is charged, it seems (1) agreed, that such attainder, while it stands unreversed, is as sufficient for this purpose as it would have been if there had been no error in it. Yet it seems (m) certain, that 2 Inst. 184. if the principal be attainted, and then the accessary, the reversal Crompton, 43. of the attainder of the principal, ipso facto reverses the attainder 174. of the accessary; and that the heir may have an assize of mort- S. P. C. 47. dancestor against the lord of the fee, having entered into the lands 7 H. 4. 16. of such an accessary, as having escheated to him by reason of the 119. attainder. B. Cor. 165. 9 Coke, 68. Sect. (m) Summary, 18 E. 4. 9 Cromp. 41. 1 R. Abr. 777. 9 Coke, 119. F. Mortdancester, 46. |