ACCESSARY, or Acctssons, in com mon la.w, is chiefly' used for a person guilty of a felonious offence, not princi pally, but by participation ; as,by advice, command, or concealment. There are two kinds of accessaries ; before the fact, and after it. The first is he who commands, or procures, another to commit felony, and is not present himself; for if he be pre sent, he is a principal.
The second is he who receives, a.ssists, or comforts any man that has done mur der, or felony, whereof he has knowledge. A man may also be accessary to an acces sary, by aiding, receiving, &c. an accessa ry in felony. An accessary in felony shall have judgment of life and member, as well as the principal, who did the felony : but not till the principal be first attainted, and convicted, or outlawed thereon. Where the principal is pardoned without attainder, the accessary cannot be arraign ed; it being a maxim in law, Ubi non est principalis, non potest esse accessorius. But if the principal be pardoned, or have his clergy after attainder, the accessary shall be arraigned. 4 and 5 W. ancl M
cap. 4; and hy stat. 1 Anne, cap. 9, it is enacted, that where the principal is con victed of felony-, or stands mute, or chal lenges above twenty of the jury, it shall be lawful to procee.c1 against the accessa ry' in the same manner as if the principal had been attainted ; and notwithstanding sad] principal shall be admitted to his clergy, pardoned, or delivered, before attainder. In some cases, also if the prin cipal cannot be taken, then the accessary III2V be prosecuted for a misdemeanor, ana punished by fine, imprisonment, &c. stat. ih. see amt. 5 Anne, cap. 31. In the lowest and highest offences there are no accessaries, but all are principals; as in riots, routs, forcible entries, and other trespasses, which are the lowest offences. SO also in the highest offence, v.-hich is, according to our law, high treason, there are no accessaries. Cok. Littlet 71.