relates to the second of the party killed, the rule of law in this respect has been too far strained; and he seems to doubt whether such second should be deemed a principal in the second degree." (1 Hale, 422. 452.) "The seconds in a duel being participators in an unlawful act would both be guilty of murder if death were to ensue, and so the law was laid down in Reg. v. Young, 8 C. & P. 645, and in Reg. v. Cuddy, 1 C. & K. 210. If the principal were insane at the commission of the act, no person can be convicted as an aider or abetter in his act. (Reg. v. Tyler, 8 C. & P. 616.) But where an insane person collected together a number of persons who armed themselves with a common purpose of resisting the lawful authorities, and in their presence he shot a peace officer who came to apprehend him under a warrant, it was held that they were guilty of murder as principals in the first degree; and that no apprehension of personal danger to themselves from him furnished any excuse to them for assisting in his illegal acts. If indicted as aiders and abetters, an indictment charging that A. gave the mortal blow, and that B., C., and D. were present aiding and abetting will be sustained by evidence that B. gave the blow, and that A., C., and D. were present aiding and abetting; and even if it appear that the act was committed by a person not named in the indictment, the aiders and abetters may nevertheless be convicted. R. v. Borthwick, Doug. 207.; 1 East, P. C. 350.*

* Archbold, 6, 7.

ACCESSORIES BEFORE THE FACT.

"An accessory before the fact is he who being absent at the time of the felony committed, doth yet procure, counsel, command, or abet another to commit a felony." (1 Hale, 615.)

"The procurement may be personal or through the intervention of a third person." (Fost. 125.) "The bare concealment of a felony to be committed will not make the party concealing it an accessory before the fact. (2 Hawk. c. 29. s. 23.) Nor will a tacit acquiescence, or words which amount to a bare permission, be sufficient to constitute this offence. (1 Hale, 616.) The procurement must be continuing, for, if the procurer of a felony repent, and before the felony is committed actually countermand his order, and the principal notwithstanding commit the felony, the original contriver will not be an accessory. (1 Hale, 618.) So, if the accessory order or advise one crime, and the principal intentionally commit another; as, for instance, to commit a crime against A., and instead of doing so he commit the same crime against B., the accessory will not be answerable. (1 Hale, 617.) But if the principal commit the same offence against B. by mistake, instead of A., it seems it would be otherwise." "The accessory is liable for all that ensues upon the unlawful act commanded; as, for instance, if A. command B. to beat C., and he beat him so that he dies, A. is accessory to the murder. So, if the offence commanded be effected, although

by different means to those commanded; as, for instance, if J. W. hire J. S. to poison A., and, instead of poisoning him, he shoot him, J. W. is nevertheless liable as an accessory." (Fost. 369, 370.) "If a man be indicted as accessory in the same felony to several persons, and be found accessory to one, it is a good verdict, and judgment may be passed upon him."* (1 Hale, 624.)

an

ACCESSORIES AFTER THE FACT.

"An accessory after the fact is one who knowing a felony to have been committed by another, receives, relieves, comforts, or assists the felon. (1 Hale, 618.) Any assistance given to one known to be a felon in order to hinder his apprehension, trial, or punishment, is sufficient to make a man accessory after the fact." (1 Hale, 619.) "But merely suffering the principal to escape will not make the party an accessory after the fact; for it amounts at most but to a mere omission." (1 Hale, 619.) "So if a person speak or write in order to obtain a felons pardon or deliverance, or advise his friends to write to the witnesses not to appear against him at his trial, and they write accordingly (1 Hale, 620.); or even if he himself agree for money not to give evidence against the felon; or know of the felony and do not discover it (1 Hale, 317. 618.); none of these acts would be sufficient to make the party an accessory after

* Archbold, 9.

the fact. He must be proved to have done some act to assist the felon personally. But if he employ another person to do so, he will be equally guilty as if he harboured or relieved him himself."* "If two persons are indicted as principals, and one is proved to be only accessory, he must be discharged on this indictment, for, in consideration of law, their offences are quite different. And one indicted as accessory before the fact cannot be convicted upon evidence proving him to have been (principal in the second degree) present aiding and abetting at the fact."

"An acquittal on an indictment for having been present aiding and abetting in a felony is no bar to an indictment charging the party as accessory before the fact, because the offences described in the two indictments are distinct in their nature."‡ * Archbold, 9. † 1 Phillips, 502. 2 Phillips, 26.

to the Jurisdiction

CHAP. XIV.

OF PLEAS, ETC.

Pleas to be pleaded immediately the Court is sworn. Plea in Abatement; on the Ground of former Acquittal, or former Conviction. Case of William Maxwell, Boatswain of H. M. S. "Tweed." - Pardon - having been already punished for the Offence.

WHEN a prisoner at a court-martial has any special matter to plead in abatement, or in bar of trial, he should plead it immediately the court is sworn. The pleas of which a prisoner may take advantage in the courts of common law are equally valid at courts-martial.

When the Court hath

Plea to the jurisdiction. no cognizance of the offence, the prisoner may plead to the jurisdiction*; for instance, if a man were charged before a court-martial with robbery, in Her Majesty's dominions on shore, the offence would not be within the jurisdiction of such court: or when the court is not properly constituted according to the provisions of the Act 22 Geo. 2. cap. 33.; or when at the time the offence was alleged to have been committed, the prisoner was not in actual service and full pay in the fleet or ships of war of Her Majesty, &c.

* Archbold, 80.