A philologicall commentary, or, An illustration of the most obvious and useful words in the lavv with their distinctions and divers acceptations, as they are found as well in reports antient and modern as in records and memorials never printed : usefull for all young students of the law / by Edward Leigh ...

ACCESSARIE.

• 1. Before the offence or fact, is he that commandeth or procureth another to do Felony, and is not there present when the other doth it; but i•• ••e be present, then he is also a principal.
• 2. ••••••r the ••••••••nce▪ is he that receiveth, favoureth, ••id••rh, a ••••••••eth, or comforteth any ma•• that hath done any murder, or felony▪ where o•• he hath knowledg.

He which counselleth or commandeth any evil thing, shall be judged accessary to all that follow∣eth o•• this evil act, but not o•• another distinct thing▪ as I command one to beat another, and

he beat him so, that the other di•• of it; I shall be ••••••••ssary to this murder, for it is a sequel of my c••••••andement. But if I command one to steal a white Horse, and he s••eals a black one; or to bu•••• such a house, which he w••ll knoweth▪ and he b••••n the house o•• an••ther: I shall ••ot be accessary 〈◊〉〈◊〉. So if I command one to rob such a G〈…〉〈…〉o•• his pla••e in such a place, as he is go∣i〈…〉〈…〉g F••i••, and he br••ak his house in 〈…〉〈…〉sid••, ••nd th〈…〉〈…〉 away hi•• Pla••e; I shall* 1.1 〈…〉〈…〉essar•• to this ba〈…〉〈…〉, for this i•• 〈…〉〈…〉ny: ••ut i•• I command one to kill 〈…〉〈…〉in the ••••ld, an•• he kill him in the City or Chur••h; or I command him to kill him at such a day and he kill him a•• another day; I shall be accessary▪ for the killing is the substance, an•• the day, place, or weapon, is but circumstance. ••ut if I command one to kill I••hn a S. and be••ore he hath kill'd him, I come and say, that I am peni••ent for my mali••e, and charge him no•• to kill him▪ and y••t he kill him; I shall not be acc••ssary. Where the p••incipall is pardoned, or ha••h his Clergy, th〈…〉〈…〉ary can∣not be arraigned; ••or the Maximm•• o〈…〉〈…〉aw is, Vbi▪ non〈…〉〈…〉or* 1.2 it doth nor appear by the judgm••nt of the Law, that he was principall; but if the principall after attainder be pardoned, or hath his Clergy allowed him, there the acce••••ary shall be ar••a••gned, be∣cause it appeareth ••udicially that he was principall. Some have holden, that neither f••r ••elony nor m••im, the Accessary shall be ar••aigned, till the at∣tainder of the principals.

In the lowest and highest offences, there are no accessaries, but all are principals, as in Ryot••, Routs, forcible Entries, and other Transgressions, ••i* 1.3 & armis, which are the lowest offences; and so in the highest offence, which is Crimen ••oesae ma∣jestatis,

there be no accessaries, but in Felony there* 1.4 are both before and after.

In the third of Queen Mary a maidservant conspi∣red with a bad fellow to rob her Mistris, and in the night she opened the door, and brought the fellow to the bed of her Mistris, who did kill the Mistris, the maid holding the candle, but saying no∣thing; she was not a Principal, (thoug•• she was pre∣sent at the act, and did concur with the murderer from the beginning to the end) but accessary, be∣cause opening of the door, and holding of the candle was not parcell of the consummation o•• the act. Q••aere i•• this be petty treason in the Maid∣servant, since it is but murder in the other, although she was present when her Mistris was murdered. Yet she cannot, as I take it, be a ••••aytor else, the principal being but a murderer.

Notes

• * 1.1

  Plo. C••m▪ Sanders case.
• * 1.2

  C••ok ••. R••p. Cases of appeals and indict Sie••s 42. B.
• * 1.3

  Cook on Lat. l. 1. c. 8. sect. 7••▪
• * 1.4

  In alta pro∣ditione nul∣lus p••test esse accesso∣rius, sed principa∣lis solum∣modo. Fulb. praep∣arat. 5. c. p. 43.