And again, by what hath been said, breach of prison is not only where the felon is formally committed to gaol by a Mittimus, but if he be put in the stocks, kept in the constable's house, nay, under the custody of him that makes the arrest, and he break prison, it is a felony, tho in these cases there neither are nor can be Mittimus's.

If A. arrest B. for suspicion of felony, and carry him to the common gaol, and there deliver him, as he may do, 13 E. 4. 9. a. 4 E. 3. cap. 10. and he break prison, if he be indicted upon it there must be an averment in the indictment, that there was a felony committed, and A. having probable cause did suspect B. and arrested him and committed him, and that he broke the prison, and this must be all proved upon the evidence.

But if B. be indicted or appealed and taken by Capias, and committed, and break prison, there needs no averment or proof that a felony was done, but only that there was an indictment or appeal, and a Capias thereupon, because all appears by matter of record. 2 Co. Instit. 590.

But a lawful commitment may be for suspicion of felony, and this is within this statute; yet no person can be indicted barely [611] of suspicion of felony, but of the felony itself. 43 E. 3. Coron. 454. 44 Assiz. 12. 2 Co. Instit. 592.

If a felony be made by act of parliament subsequent to 1 E. 2. and a person be committed for such a felony and break prison, yet this is felony. 2 Co. Instit. 592.

III. What shall be said a breaking of prison by a person committed for felony to make a felony.

If the prison be fired by accident, and there be a necessity to break prison to save his life, this excuseth the felony; but if the prison were fired by the prisoner himself, or by his procurement, the breaking to save his life is nevertheless felony, for it was a necessity of his own creating. 2 Co. Instit. 590.

If the gaoler set open the prison doors, and the felon escape, this may be a felony in the gaoler, but is no breach of prison to make felony in the prisoner.

If A. be arrested or imprisoned for felony, and B. and others without the consent of A. rescue A. this is felony in the rescuers, but not felony in A. But if A. were of confederacy with B. to do it, then it is felony in B. as a rescue, and in A. as a breach of prison.

And so it is if B. had broke the prison doors, and they being open, A. had gone away, this had been felony in B. but not felony in A. unless it were done by his confederacy, or procurement, for A. did not actually break prison. 2 Co. Instit. 589. 1 H. 7. 6. a.

IV. Touching the proceeding for felony by breach of prison. A. is committed for felony, or suspicion thereof, and breaks prison, he may be indicted, arraigned, convicted, and have judgment for the escape, altho the principal felony be not tried, and he may be not

guilty of the felony; and so it differs from the case of a rescue or escape before, and the reason is, because here it is the same person, there they are divers, and therefore in the latter case the principal felony shall be first tried. 2 Co. Instit. 592.

And yet I hold, that if A. be indicted of felony and committed, and then breaks prison, and then be arraigned of the principal felony and found not guilty, now A. shall never be [612] indicted for the breach of prison; or if indicted for it before

the acquittal, and then he is acquitted of the principal felony, he may plead that acquittal of the principal felony in bar to the indictment for the felony for breach of prison.

And so it was pleaded by myself in the case of one Mrs. Samford, who was severely prosecuted by the earl of Leicester, upon a suspicion that she had stolen his jewels; for tho while the principal felony stood untried, it stood indifferent whether she were guilty of the principal felony, or rather the breach of prison was a presumption of the guilt of the principal offense, yet now it be cleared, that she was not guilty of the felony, she is now in law as a person never committed for felony, and so her breach of prison is no felony.

The felony of breach of prison is a felony within clergy, tho the principal felony for which the party was convicted were out of clergy, as robbery or murder.

CHAPTER LV.

OF PRINCIPALS AND ACCESSARIES IN FELONY, AND FIRST OF ACCESSARIES BEFORE THE FACT.

HAVING gone through the considerations of the offenses of treasons, and also of felonies at the common law, it will be seasonable in this place to consider of those different relations of principals and accessaries, whereof tho much hath occasionally been mentioned, yet I shall now proceed to the discussion of this matter distinctly and apart, and shall put together all the learning that occurs to me concerning this matter.

In the highest capital offense, namely, high treason, there are no accessaries neither before nor after, for all consenters, [613] aiders, abettors, and knowing receivers and comforters of traitors, are all principals, as hath been said, 3 H. 7. 10. a. Stamf P. C. p. 40. a. Co. P. C. p. 20.

But yet as to the course of proceeding, it hath been and indeed ought to be the course, that those who did actually commit the very fact of treason, should be first tried before those that are principals in the second degree, because otherwise this inconvenience might follow, viz. that the principals in the second degree might be convicted, and yet the principals in the first degree may be acquitted,

which would be absurd: vide Somervill's case(a) before, cap. 22. p. 238.[1]

In cases that are criminal, but not capital, as in trespass, mayhem, or præmunire, there are no accessaries, for all the accessaries before, are in the same degree as principals, Stamf. Lib. I. cap. 48. & libros ibi; and accessaries after, by receiving the offenders, cannot be in law under any penalties as accessaries, unless the acts of parliament that induce those penalties, do expressly extend to receivers or comforters, as some do.[2]

Note the word maintainers in the statute of 27 E. 3. cap. 1. and 16 R. 2. cap. 5. denotes the maintainers of the offense, and not (as it seems) of the parties.

It remains, therefore, that the business of this title of principal and accessary refers only to felonies, whether by the common law, or by act of parliament.

As to felonies by act of parliament, regularly if an act of parliament enact an offense to be felony, tho it mentions nothing of accessaries before or after, yet virtually, and consequentially those that counsel or command the offense are accessaries before, and those that knowingly receive the offender are accessaries after, as in the case of rape made felony by the statute of Westminst. 2. cap. 34.(b) Stamf. P. C. Lib. I. cap. 47. 11 H. 4. 14. in case of multiplication, Co. [614] P. C. cap. 20. tho Dy. 88. makes it a quære.

But if the act of parliament that makes the felony, in express terms comprehend accessaries before, and make no mention of accessaries after, namely, receivers or comforters, there it seems there can be no accessaries after, for the expression of procurers, counsellers, abettors, all which import accessaries before, make it evident, that the law makers did not intend to include accessaries after, which is an offense of a lower degree than accessaries before, as the statute of 8 H. 6 cap. 12. for stealing of records, the statute of 33 H. S. cap. 8. for witchcraft, &c. Stamford's P. C. ubi supra.

It is true my lord Coke, P. C. cap. 19. p. 72, 73. denies the opinion of Stamford, and affirms, that tho the statute of 8 H. 6. cap. 12.

(a) 1 And. 109. But it was ruled in that case, that upon that branch of treason, which relates to the compassing the death of the king, there is no need that the principal in the first degree, (viz. he who undertook to do the act) should be first tried, for the movers or procurers are guilty of compassing the death of the king, altho he that was procured should never assent thereto.

(b) 2 Co. Instit. 434.

[1] A person is not constructively present at an overt act of treason, unless he be aiding and abetting at the fact, or ready to do so if necessary. U. States v. Burr, 4 Cranch, 492.

[2] See Foster, 341; Hawk. P. C. b. 2. c. 290; 3 Inst. 21; Dalton, c. 161; Commonwealth v. Gillespie, 7 S. & R. 469; U. S. v. Morrow, 4 Wash. C. C. R. 733; U. S. v. Mills, 7 Peters, 38; Ward v. The State, Hill, 144; Commonwealth v. Macomber, 3 Mass. 356; Whitaker v. English, 1 Bay. 15; Commonwealth v. Barlow, 4 Mass. 440; State v. Arden, 1 Bay. 488; Comm. v. Knapp, 9 Pick. 497; Chanet v. Parker, 1 Rep. Con. Ct. 333. The crime of an accessary before the fact to murder is murder. People v. Mather, 4 Wendell, 229; State v. Arden, 1 Bay, 488; State v. Westfield, 1 Bailey,

mention only accessaries before, yet virtually and consequentially accessaries after are included, as well as in felonies at common law; but he neither allegeth any reason or authority for that opinion, and therefore the authorities being equal, the greater reason seems to be with Stamford's opinion, Expressum facit cessare tacitum, and no weight can be laid upon the statute of 3 H. 7. cap. 2. for that in express terms makes accessaries before and after to stand as principals. And upon the same reason it is, that many of these acts of parliament mentioned before, cap. 22. p. 236. that make certain offenses, their counsellers, abettors, and procurers, to be treason, do not extend to make receivers guilty of treason, tho if the act had been general that such an offense shall be treason, it had consequentially made knowing receivers as well as abettors guilty of treason: vide Co. P. C. cap. 64. p. 138.

Tho generally an act of parliament creating a felony renders consequentially accessaries before and after within the same penalty, yet the special penning of the act of parliament in such cases sometimes varies the case.

The statute of 3 H. 7. cap. 2. for taking away maidens, &c. 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 Eliz. cap. 2. makes the coming

in of a jesuit treason, the receiving or relieving of him felony, [ 615 ] the contributing of money to his relief a præmunire, so that

acts of parliament may diversify the offenses of accessary or principal according to the various penning thereof, and so have done in many

cases.

And thus much as to accessaries to felonies made by act of parliament, which being general directions may be applicable almost to all cases.

I come to consider of principals and accessaries in felony, and their differences among themselves, and with relation to felonies at common law.

By what hath been formerly delivered, principals are in two kinds, principals in the first degree, which actually commit the offense, principals in the second degree, which are present, aiding, and abetting of the fact to be done.[3]

[3] The presence need not be an actual standing within sight or hearing of the act; an active co-operation in the crime at the time of its commission completes the felony. As if several persons set out together or in small parties upon one common design, be it murder or other felony, or for any other purpose unlawful in itself, and each taketh the part as. signed him, some to commit the fact, others to watch at proper distances and stations to prevent a surprise, or to favour, if need be, the escape of those who are more immediately engaged. They are all, provided the fact be committed, in the eye of the law, present at it; for it was a common cause with them, each man operated in his station at one and the same instant towards the same common end, and the part each man took tended to give countenance, encouragement, and protection to the whole gang, and to insure the success of their common enterprise. Foster, 350.

In case of stealing in a shop, if several are acting in concert, some in the shop and some out, and the property is stolen by one of those in the shop, those who are on the outside are equally guilty as principals in the offence of stealing in a shop. Rex v. Go gerley, Russ. & R. C. C. 343; and see Rex v. Owen, 1 Ry. & M. C. C. 96; Rex v. Borth

So that regularly no man can be a principal in felony, unless he be present, unless it can be in case of wilful poisoning, wherein he that layeth or infuseth poison with intent to poison any person, and the person intended, or any other take it in the absence of him that so

wick, 1 Dougl. 207. So if one keeps guard while others commit the act, he is constructively present, and liable as a principal. State v. Town, Wright's Ohio R. 75. If several act in concert to steal a man's goods, and he is induced by fraud to trust one of them in presence of the others, with the possession of such goods, and another of them entices him away, that the man who has the goods may carry them off, all are guilty of felony as principals. Rex v. Standley, Russ. & R. C. C. 305. See State v. Coleman, 5 Porter, 32. All persons aiding and abetting the personating a seaman are principals; the offence is not confined to the person only who personates the seaman. Rex v. Potts, Russ. & R. C. C. 353. So in simony, all are principals. Baker v. Rogers, Cro. Eliz. 789.

If one encourages another to commit suicide, and is present abetting him while he does so, such person is guilty of murder as a principal, and if two encourage each other to murder themselves and one does so, the other being present, but the latter fail in the attempt upon himself, he is a principal in the murder of the first; but if it be uncertain whether the deceased really killed himself, or whether he came to his death by accident before the moment when he meant to destroy himself, it will not be murder in either. Rex v. Dyson, Russ. & R. C. C. 523; and see Rex v. Russell, Moody, C. C. 356; Reg. v. Alison, 9 C. & P. 418. See Com. v. Bowen, 13 Mass. 359.

All those who assemble themselves together with an intent even to commit a trespass, the execution whereof causes a felony to be committed; and continue together abetting one another, till they have actually put their design into execution: and also all those who are present when a felony is committed, and abet the doing of it, are principals. And where persons combine to stand by one another in a breach of the peace, with a general resolution to resist all opposers; and in the execution of their design, a murder is committed, all the company are equally principals in the murder, though at the time of the fact, some of them were at such a distance as to be ont of view. Reg. v. Howell, 9 Car. & P. 437. See also Com. v. Daily, 4 Penn. L. J. 156. Com. v. Hare, 4 Penn. L. J. 259.

To constitute the offender a principal, it is not necssary that he should be present during the whole of the transaction, it is sufficient to show that he originally assented to the felony, and was present aiding and abetting when the offence was consummated, although he was not at the inception. As where the servants of A. feloniously removed goods in A.'s warehouse, from one part of it to another, and B. several hours afterwards assisted in removing the goods from the warehouse, he was held a principal, since it was a continuing transaction. Rex v. Atwell, 2 East, P. C. 768.

If several combine to forge an instrument, and each executes by himself a distinct part of the forgery, and they are not together when the instrument is completed, they are nevertheless all guilty as principals. Rex v. Bingley, Russ. & R. C. C. 446; seď vide Rex v. Kelly, Russ. & R. C. C. 421; and id. 332. infra. As if A. counsel B. to make the paper, C. to engrave the plate, and D. to fill up the names of a forged note, and they do so, each without knowing that the others are employed for that purpose. B. C. and D. may be indicted for the forgery, and A. as an accessary. Rex v. Dale, Moody, C. C. 307. For if several make distinct parts of a forged instrument, each is a principal, though he do not know by whom the other parts are executed, and though it is finished by one alone in the absence of the others. Rex v. Kirkwood, Moody, C. C. 304.

Persons not sufficiently near to give assistance, are not principals. Thus where Brighton uttered a forged note at Portsmouth, the plan was concerted between him and two others, to whom he was to return when he had passed the note, and divide the produce. The three had before been concerned in uttering another forged note, but at the time this note was uttering in Portsmouth, the other two stayed at Gosport. The jury found all three guilty; but on a case reserved the judges were clear that as the other two were not present, nor sufficiently near to assist, they could not be deemed principals, and therefore they were recommended for a pardon. Rex v. Soares, Atkinson and Bughton, 2 East, P. C. 974; Russ. & R. C. C. 25. S. C. and see R. v. Stewart and others, Russ. &R. C. C. 363; Rex v. Badcock, and others, Russ. & R. C. C. 249; Rex v. Manners, 7 C. & P. 801.

Going towards a place where a felony is to be committed in order to assist in carrying off the property, and assisting accordingly, will not make a man a principal if he were