The true view is, held in either way,

process against the other, and the like. that there are cases in which he may be at the election of the prosecuting power; while, in those other cases in which there is no election, little difficulty will usually be found in determining whether his offence is substantive or accessorial. And there are circumstances in which even the accessorial offence wears the appearance of being a substantive one, though not such in fact. Suppose, for instance, the principal felon is already attainted; and the person, without helping him to break jail, or the like, simply aids him in some other manner to elude his sentence, the offence of this person is accessorial truly; while it is substantive practically, the principal being already conclusively proved guilty. If simply the same aid were rendered before conviction, the situation of the person rendering it would be formally different; but, in both instances, he would be called an accessory. Suppose, again, the mode of helping the felon was to take a further step, and rescue him from lawful confinement, either before or after conviction; the rescuer might be indicted for the substantive offence of rescue, or for being an accessory after the fact in the other's felony, at the election of the prosecutor.1 For, when a man is by authority of law committed on a charge of felony, though only awaiting his trial, the rescuing of him, or helping of him to break prison, is a distinct felony, equally whether he is guilty or not: when the commitment is on a charge of misdemeanor, it is, without reference to the question of his guilt, a misdemeanor.2 But, in these cases, where the commitment is for felony, the rescuer is also, or may be, an accessory after the fact; and, as the crime of an accessory after the fact in felony is itself felony, it is imma

1 See, as shedding much light on this matter, Rex r. Burridge, 3 P. Wms. 439, 483-485, 493; Commonwealth v. Miller, Ashm. 61.

21 Gab. Crim. Law, 305, 310; Jenk. Cent. 171; ante, § 234; Anonymous, 1 Dy. 99, pl. 60; Kyle v. The State, 10 Ala. 236; The State v. Murray, 15 Maine, 100; Reg. v. Allan, Car. & M. 295; People v. Duell, 3 Johns. 449; Rex v. Stokes, 5 Car. & P. 148; Commonwealth v. Miller, 2 Ashm. 61; Rex v. Haswell, Russ. & Ry. 458.

3 Ante, § 473.

terial with which form of felony he is charged. The propo sition indeed, that, in all cases of assisting a supposed felon out of the hands of justice, under circumstances making the guilt of the person assisting is the same whether the other is guilty or not; the crime of helping is not accessorial, except at the election of the prosecutor; and, at his election, is accessorial; is too plain, in the bare statement of it, to be either strengthened or overthrown by authorities.1

§ 492. We have seen,2 that accessories in felony, whether before or after the fact, are felons; therefore a man may become an accessory after, by helping the accessory before, the same as by helping the principal felon, to elude justice.3 And such accessory after is deemed an accessory to the principal felon. He would seem, on principle, to be likewise an accessory before the fact, to the other accessory before. We have seen also, that manslaughter admits of no accessories before the fact:5 it does admit, however, of accessories after the fact.6

§ 493. The receiver of stolen goods, knowing them to be stolen, is not, within our definition, an accessory; because he renders no personal aid to the principal felon. At common law he is indictable for the misprision of knowing the thief and neglecting to prosecute him; or, if he had agreed not to prosecute him, or to pursue him but faintly, his offence would be compounding felony. But, in England, by statute 3 & 4

1 See Vol. II. § 494 et seq.

2 Ante, § 473.

3

2 Hawk. P. C. Curw. Ed. p. 436, § 1. See, as to the law of Tennessee, The State v. Payne, 1 Swan, Tenn. 383.

Rex v. Jarvis, 2 Moody & R. 40; Reg. v. Parr, 2 Moody & R. 346; Cassels v. The State, 4 Yerg. 149; Wright v. The State, 5 Yerg. 154. And see ante, § 476.

5 Ante, § 477.

• Rex v. Greenacre, 8 Car. & P. 35.

7 Post, c. 38.

82 East P. C. 743, 744; 4 Bl. Com. 38, 133; 1 Hale P. C. 619; 2 Hawk.

P. C. Curw. Ed. p. 447, § 30; Foster, 373; post, c. 37.

Will. and Mary, c. 9, the receiver was made an accessory after the fact; the consequence of which was, that he could be punished only as an accessory, agreeably to the rule already considered,2 that, when a misdemeanor is by statute made a felony, the offence is no longer indictable as a misdemeanor.3 The statute 5 Anne, c. 31, § 5, confirmed that of William and Mary; and § 6, as also 1 Anne, stat. 2, c. 9, provided, that where the principal felon could not be taken, the receiver of the stolen goods might be prosecuted separately for the misdemeanor. By the present English law, the receiver of stolen goods may be proceeded against for felony, as a substantive offence, without any reference to the principal offender.5

§ 494. The statutes just mentioned, of William and Mary, and of Anne (A. D. 1691-1706), bear dates subsequent to the settlement of the older colonies in this country; and so, on general principles, they are common law in only a part of the States. But in most and perhaps all of the States, the legislative power has made provisions, following the English statutes, whereby the receiving of stolen goods is punishable

The State v. Butler, 3 McCord, 383.

2 Ante, § 100.

3 2 East P. C. 744; Foster, 373; 4 Bl. Com. 133.

4 2 East P. C. 744, 745; Foster, 373, 374; 4 Bl. Com. 133. And see Rex v. Wilkes, 1 Leach, 4th ed. 103, 2 East P. C. 746; Rex v. Pollard, 8 Mod. 264, 265. See ante, § 469.

Rex v. Solomons, 1 Moody, 292; Rex v. Pulham, 9 Car. & P. 280; Rex v. Wheeler, 7 Car. & P. 170; Rex v. Hartall, 7 Car. & P. 475; Rex v. Austin, 7 Car. & P. 796. And see Rex v. Wyer, 1 Leach, 4th ed. 480.

& Ante, § 13.

Kilty in his Report of Statutes see ante, § 15, note Maryland - says: "The 4th section [of the statute of William and Mary], which made the receiver of stolen goods an accessory to the felony, did extend to the province [of Maryland], as appears by cases of prosecutions under it, as did also those of 1 Anne, c. 9, and 5 Anne, c. 31, by which such receiver was liable to be prosecuted for a misdemeanor, before the conviction of the principal offender; but both these cases are provided for by the act of 1809, c. 138." P. 179,

180.

separately from the larceny of them, either as felony or as misdemeanor.1

§ 495. Secondly; as to Treason. The books all tell us, that there are no accessories after the fact in treason; but that they who in felony would be such accessories, are, in treason, principals. Yet from the same sources we learn also, that they who sustain this position are practically treated in the law, by whatever name it may call them, in every particular as accessories; the charge in the indictment against them must specify the accessorial nature of their act, and they cannot be convicted in advance of the principal, or person by whom the treason was directly performed.2 Evidently, therefore, it is a mere abuse of terms to call them principals; for they are really accessories. The English common law, however, makes them traitors; just as it makes accessories after the fact in felony, felons.

§ 496. The English statutes concerning treason were plainly intended to abolish all common law treasons; yet they seem not to have been always, in all respects, so interpreted. And if the view, that the accessory after the fact is

1 See People v. Wiley, 3 Hill, N. Y. 194; Rohan v. Sawin, 5 Cush. 281; Commonwealth v. Andrews, 2 Mass. 14; The State v. S. L., 2 Tyler, 249 ; The State v. Counsil, Harper, 53; The State v. Butler, 3 McCord, 383; The State v. Scovil, 1 Const. N. s. 274; The State v. Harkness, 1 Brev. 276; The State v. Sanford, 1 Nott & McCord, 512; The State v. Coppenburg, 2 Strob. 273; Commonwealth v. Frye, 1 Va. Cas. 19; The State v. Weston, 9 Conn. 527; Cassels v. The State, 4 Yerg. 149; Wright v. The State, Yerg. 154; Swaggerty v. The State, 9 Yerg. 338; The State v. Ives, 13 Ired. 338.

21 Hale P. C. 233, 237, 238; 2 Hawk. P. C. Curw. Ed. p. 437, 441, § 3, 14%; 1 East P. C. 101; Foster, 341 et seq.

There was doubt anciently whether the guilt of the receiver of a traitor rose above misdemeanor. 1 Hale P. C. 233, 234; 2 Hawk. P. C. Curw. Ed. p. 437, § 3.

See Rex v. Speke, 3 Salk. 358; 1 Hale P. C. 86, 89; 1 Gab. Crim. Law, 882; 4 Bl. Com. 76; 1 East P. C. 55; 1 Hawk. P. C. Curw. Ed. p. 7, § 2. 4 Bl. Com. Tucker Ed. App. 16; 1 Hale P. C. 236, 237; 1 Gab. Crim. Law, 885. "You are deceived to conclude all treasons be by the statute of

not really guilty of his principal's crime, but of a distinct one of his own, suggested several sections back,1 is correct, the doctrine follows, that such an accessory to a statutory treason is not a traitor under the statute, but is such at the common law: just as, when a legislative enactment forbids a thing, yet provides no penalty, the person violating is indictable at the common law, not under the enactment; or as an unsuccessful attempt to commit a statutory crime is a common law offence, matters already explained in these pages.2

§ 497. If this is the true doctrine, it follows, that, under the constitution of the United States, and under those State constitutions which are drawn from the same pattern, the accessory after is not a traitor. For as to the United States we have seen, not only that there are no common law crimes against the general government,3 but also that the constitution prohibits any thing not therein mentioned from being made treason. Its words are, "Treason against the United States shall consist ONLY in levying war against them, or in adhering to their enemies, giving them aid and comfort." 5 But doubtless the receiver of a traitor is guilty of a misdemeanor, within the act of congress concerning misprision of treason.6

25 Edw. 3; for that statute is but a declaration of certain treasons, which were treasons before at the common law. Even so there do remain divers other treasons at this day at the common law, which be not expressed by that statute, as the judges can declare." Throckmorton's case, 1 Harg. St. Tr. 63, 72, 1 Howell St. Tr. 869, 889. And Lord Coke, having this statute before him, said, "high treason is either by the common law or by act of parliament;" and he went on to mention the receiving, comforting, and aiding of “any man who committeth high treason," as an "example" of treason at the common law. 3 Inst. 138.