lice prepense, and the servant, ignorant of his master's felonious design, take part with him, and kill the other, it is manslaughter in the servant and murder in the master. 1 Hale, 446.

In the case of murder by duelling, in strictness both of the seconds are principals in the second degree; yet Lord Hale considers that, as far as 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.

Aiders and abettors were formerly defined to be accessaries at the fact, and could not have been tried until the principal had been convicted or outlawed. Fost. 347. But this doctrine is exploded; and it is now settled that all those who are present aiding and abetting when a felony is committed, are principals in the second degree, and may be arraigned and tried before the principal in the first degree has been found guilty; 2 Hale, 223; and may be convicted, though the party charged as principal in the first degree is acquitted. R. v. Taylor, 1 Leach, 360. Benson v. Offley, 2 Show. 510, 3 Mod. 121. R. v. Wallis, Salk. 334. R. v. Towle, R. & R. 314, 3 Price, 145, 2 Marsh. 465.

In treason and offences below felony (see also 7 & 8 G. 4, c. 29, s. 61; 7 & 8 G. 4, c. 30, s. 26; 9 G. 4, c. 31, s. 31), and in all felonies in which the punishment of principals in the first degree and of principals in the second degree is the same, the indictment may charge all who are present and abet the fact as principals in the first degree, 2 Hawk. c. 25, s. 64. See Mackally's case, 9 Co. 67 b, provided the offence permit of a participation; Fost. 345; or specially as aiders and abettors. But where, by particular statutes, the punishment is different, then principals in the second degree must be indicted specially as aiders and abettors. 1 East, P. C. 348, 350. R. v. Sterne, 1 Leach, 473.

Accessaries before the fact]—An accessary 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.

If the party be actually or constructively present when the felony is committed, he is, as we have seen, (ante, p. 4), an aider and abettor, and not an accessary before the fact; for it is essential, to constitute the offence of accessary, that the party should be absent at the time the offence is committed. 1 Hale, 615. R. v. Gordon, 1 Leach, 515.

The procurement may be personal, or through the intervention of a third person; Fost. 125. R. v. Earl of Somerset, 19 St. Tr. 804; it may also be direct, by hire, counsel, command, or conspiracy; or indirect, by evincing an express liking, approbation, or assent to another's felonious design of committing a felony; 2 Hawk. c. 29, s. 16; but the bare concealment of a

felony to be committed, will not make the party concealing it an accessary before the fact; 2 Hawk. c. 29, s. 23; nor will a tacit acquiescence, or words which amount to a bare per. mission, 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 accessary. 1 Hale, 618. So, if the accessary order or advise one crime, and the principal intentionally commit another: as, for instance, to burn a house, and instead of that he commit a larceny; or to commit a crime against A., and instead of so doing he commit the same crime against B.-the accessary 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. Fost. 370, et seq.; but see 1 Hale, 617. 3 Inst. 51. But it is clear that the accessary is liable for all that ensues upon the execution of the unlawful act commanded; as, for instance, if A. command B. to beat C., and he beat him so that he dies, A. is accessary to the murder. 4 Bl. Com. 37. 1 Hale, 617. Or if A. command B. to burn the house of C., and in doing so the house of D. is also burnt, A. is accessary to the burning of D.'s house. R. v. Saunders, Plowd. 475. So, if the offence commanded be effected, although by different means from 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 accessary. Fost. 369, 370.

It may be necessary to observe, that it is only in felonies there can be accessaries; in high treason, every instance of incitement, &c., which in felony would make a man an accessary before the fact, will make him a principal traitor, Fost. 341, and he must be indicted as such. 1 Hale, 238. Also, all those who in felony would be accessaries before the fact, in offences under felony are principals, and must be indicted as such. In manslaughter, however, there can be no accessaries before the fact, for the offence is sudden and unpremeditated; and therefore, if A. be indicted for murder, and B. as accessary, if the jury find A. guilty of manslaughter, they must acquit B. 1 Hale, 347, 450, 616.

Formerly, an accessary could not, without his own consent, unless tried with the principal, be brought to trial until the guilt of his principal had been legally ascertained by conviction, (1 A. st. 2, c. 9), or outlawry. Fost. 360. 1 Hale, 623. But now, accessaries before the fact to any felony, whether at common law or by statute made or to be made, shall be deemed guilty of felony, and may be indicted as accessaries before the fact with the principal, or after the conviction (see 7 G. 4, c. 64, s. 11) of the principal, or for a substantive felony, whether the principal shall or

shall not have been convicted, or shall or shall not be amenable to justice, and may be punished in the same manner as if convicted as accessaries to the felony. 7 G. 4, c. 64, s. 9. Where the principal and accessary are tried together, (which is in general the best and most usual way), if the principal plead otherwise than the general issue, the accessary shall not be bound to answer, until the principal's plea be first determined. 9 H. 7, 19. 1 Hale, 624. 2 Inst. 184. But if the general issue be pleaded, then the jury shall be charged to inquire first of the principal, and if they find him not guilty, then to acquit the accessary; but if they find the principal guilty, they are then to inquire of the accessary. 1 Hale, 624. 2 Inst. 184. Even in a case where the principal was indicted for burglary and larceny in a dwelling-house, and the accessary charged in the same indictment as accessary before the fact to the said "felony and burglary," and the jury acquitted the principal of the burglary, but found him guilty of the larceny: it seems the judges were of opinion that the accessary should have been acquitted; for the indictment charged him as accessary to the burglary only, and the principal being acquitted of that, the accessary should be acquitted also. R. v. Donally & Vaughan, R. & R. 310, 2 Marsh. 271.

If a man be indicted as accessary in the same felony to several persons, and be found accessary to one, it is a good verdict, and judgment may be passed upon him. R. v. Lord Sanchar, 9 Co. 119. Fost. 361. And if a man be accessary to several, and be once duly tried as accessary to some of them, or for a substantive felony, he shall not afterwards be again indicted for the same offence. 7 G. 4, c. 64, s. 9.

Accessaries after the fact]—An accessary after the fact is one who, knowing a felony to have been committed by another, receives, relieves, comforts, or assists the felon, Hale, 618. 4 Bl. Com. 37, whether he be a principal or an accessary before the fact merely. 2 Hawk. c. 29, s. 1. 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 an accessary after the fact: as, for instance, that he concealed him in his house, Dalt. 530, 521, or shut the door against his pursuers, until he should have an opportunity of escaping, 1 Hale, 619, or took money from him to allow him to escape, 9 H. 4, 1, or supplied him with money, a horse, or other necessaries, in order to enable him to escape, Hale's Sum. 218. 2 Hawk. c. 29, s. 26, or that the principal was in prison, and J. W. bribed the gaoler to let him escape, or conveyed instruments to him to enable him to break prison and escape. 1 Hale, 621.

But merely suffering the principal to escape, will not make the party an accessary after the fact; for it amounts at most but to a mere omission. 9 H. 4, 1. 1 Hale, 619. So, if a person

supply a felon in prison with victuals or other necessaries for his sustenance; 1 Hale, 620; or if a physician or surgeon professionally attend a felon sick or wounded, although he know him to be a felon; 1 Hale, 332; or if a person speak or write in order to obtain a felon's pardon or deliverance, 26 Ass. 47, or advise his friends to write to the witnesses not to appear against him at his trial, and they write accordingly, 3 Inst. 139. 1 Hale, 620, or even if he himself agree, for money, not to give evidence against the felon, Moor, 8, or know of the felony, and do not discover it: 1 Hale, 371. 618: none of these acts would be sufficient to make the party an accessary after the fact.

A wife, however, is not punishable as accessary, for receiving &c. her husband, although she know him to have committed felony, 1 Hale, 48. 621, for she is presumed to act under his coercion. But no other relation of persons can excuse the wilful receipt or assistance of felons: a father cannot assist his child, a child his parent, a husband his wife, a brother his brother, a master his servant, or a servant his master. Ib. Even one may make himself an accessary after the fact to a larceny of his own goods, or to a robbery on himself, by harbouring the thief, or assisting in his escape. Fost. 123. Cromp. 41 b, pl. 4 & 5. To constitute this offence it is necessary that the accessary have notice, direct or implied, at the time he assist or comfort the felon, that he had committed a felony. 2 Hawk. c. 29, s. 14. It is also necessary that the felony be complete at the time the assistance is given, for, if one wound another mortally, and, after the wound given but before death ensues, a person assist or receive the delinquent, this does not make him accessary to the homicide; for until death ensues no felony is committed. 2 Hawk. c. 29, s. 35. 4 Bl. Com. 38.

In high treason there are no accessaries after the fact, those who in felony would be accessaries after the fact being principals in high treason (see ante, p. 7); yet in their progress to conviction, they must be treated as accessaries, and indicted specially for the receipt &c., and not as principal traitors. 1 Hale, 238. So, in offences under felony, there are no accessaries after the fact; 1 Hale, 613; although, if the act of the receiver amount to a rescue, or to obstructing an officer of justice in the execution of his duty, or the like, he would undoubtedly be indictable for it as for a misdemeanor. 2 Hawk. c. 29, s. 4. Accessaries after the fact cannot be tried before the conviction (7 G. 4, c. 64, s. 11) of their principal, unless they consent to it. 1 Hale, 623. 2 Hawk. c. 29, s. 45. But they may be tried with their principal; 1 Hale, 623; or separately after the principal has been convicted. See ante, p. 8.

The receipt of stolen goods did not at common law constitute the receiver an accessary, but was a distinct misdemeanor punishable by fine and imprisonment; 1 Hale, 620; and although,

by several statutes, receivers were made accessaries after the fact, and by the recent stat. 7 & 8 G. 4, c. 29, s. 54, 55, 60, may in certain cases be indicted either as accessaries after the fact to felony, or for a substantive felony, or may be prosecuted for a misdemeanor, or punished upon summary conviction; the receipt of stolen goods is still a distinct and separate offence, and as such will be considered hereafter.

Infants]-It is a general rule that infants under the age of discretion are not punishable by any criminal prosecution whatever; Mir. c. 4, s. 16. 1 Hale, 27. 1 Hawk. c. 1, s. 1; but the age of discretion, by the law of England, varies according to the nature of the offence.

Within the age of seven years no infant can be guilty of felony, or be punished for any capital offence; for, within that age, an infant is, by presumption of law, doli incapax, and cannot be endowed with any discretion, against which presumption no averment shall be received. Reg. 309, b. 1 Hale, 27, 28. 4 Bl. Com. 23. But the incapacity of infants to do evil and contract guilt ceases upon their attaining the age of fourteen years, at which age they are presumed by the law to be doli capaces, and capable of discerning good from evil, and are, with respect to their criminal actions, subject to the same rule of construction as others of more mature age. 1 Hale, 25. Between the age of seven and fourteen years an infant shall be deemed prima facie to be doli incapax, but malitia supplet ætatem, and this presumption may be rebutted by strong and pregnant evidence of a mischievous discretion; for the capacity to do evil and contract guilt is not so much measured by years and days, as by the strength of the delinquent's understanding and judgment. 4 Bl. Com. 23. Thus, it is said that an infant eight years of age may be indicted for murder, and shall be hanged for it; Dalt. Just. c. 147; and an infant between the age of eight and nine years was executed for arson, it appearing that he was actuated by malice and revenge, and had perpetrated the offence with craft and cunning. 1 Hale, 25. So a girl of thirteen was burnt for killing her mistress; 1 Hale, 26; and where an infant, nine years of age, killed an infant of the like age, and confessed the felony, it appearing upon examination that he had hid both the blood and the body, the justices were of opinion that he ought to be hanged, but respited the judgment that he might be pardoned. Fitz. Cor. 57. See R. v. York, Fost. 70. But in cases of this nature the evidence of a mischievous discretion, to rebut the prima facie presumption of law arising from non-age, should be clear and strong beyond all doubt and contradiction. 4 Bl. Com. 23. 1 Hale, 25, 27. See R. v. Owen, 4 C. & P. 236.

In some misdemeanors and offences that are not capital, an