Respublica against Levi Arnold, Benjamin Arnold and James Arnold, 3 Yeates 263

By the Court. There can be no difficulty in saying that if principals, the superior offenders, are entitled to the benefits of the law of 1785, the accessaries, who are in inferior grades of criminality,,must have the same pretensions. Yeates, J. was of opinion, that the second objection on the part of the commonwealth was well founded. The provisions in the first twelve sections of the law of 1785, all go to the cases of *persons committed or detained for any criminal or supposed *266] criminal matter, to prisoners in actual custody of some officer of justice.

The 13th and 14th sections are not to be found in the British statute of 31 Car. 2, c. 2, and are valuable improvements of the rights and liberties of citizens; but they do not respect commitments for criminal matter. The 3d

section of the’act directs that the justices of Oyer and Terminer shall on the last day of the term, next after the commitment of the party, who shall not be indicted and tried, set at liberty the said prisoner, upon bail, &c. This clearly shews, that the legislature did not contemplate a party admitted fo bail, as a prisoner under commitment, besides confining the authority and requisition so to act, solely to the court, before whom the prisoner is to receive his trial. Would not a habeas corpus, directed to the bail of a supposed offender, be perfectly novel ? Could we or either of us do

an act, which would amount to a legal discharge of the recognizances in the court of Oyer and Terminer ? Cited 16 S. & R. 306 in support of the decision that a prisoner, who stands indicted for aiding and abetting another to commit murder, and has not been tried at the second term, is not entitled to his discharge on habeas corpus, if the principal has absconded, and proceedings of outlawry against the principal were commenced without delay, but there had not been time to finish them. Cited in 10 W. N. C. 54; 87 Pa. 213.

Smith, J. said, that the inclination of his mind was, that the habeas corpus would not lie to the bail; but declined giving any decided opinion on the point. By the Court. We have no doubt of the powers of the court of Oyer and Terminer of retaining the defendants under bail, to answer the indictment, if their minds were satisfied, either that the witnesses were kept out of the way by the procurement or threats of the defendants, or that they had prevented the arrest of the principal.

It would be monstrous to suppose, that the parties by their own improper conduct, should elude the punishment for a superior offence, by subjecting themselves to a prosecution for misdemeanor. We must refer the defendants to the Court of Oyer and Terminer, who are best acquainted with the circumstances of the case. There they will not be treated with oppression; but if 'the public interests and safety require it, they will administer that preventive justice, which the laws of the government empower them to exercise. Motion denied. A constable is within the habeas corpus act. i Stra. 167 Vide new ed. of Bac. Abr.

Vol. 3, p. 18.