ACCESS, persons. Approach, or the means or power of approaching. Sometimes by access is understood sexual intercourse¹; at other times the opportunity of communicating together so that sexual intercourse may have taken place, is also called access. 1 Turn. & R. 141.

2. In this sense a man who can readily be in company with his wife, is said to have access to her; and in that case, her issue are presumed to be his issue. But this presumption² may be rebutted³ by positive evidence that no sexual intercourse took place. lb.

3. Parents are not allowed to prove non-access, for the purpose of bastardizing the issue of the wife; nor will their declarations be received after their deaths, to prove the want of access, with a like intent. 1 P. A. Bro. R. App. xlviii.; Rep. tem. Hard. 79; Bull. N. P. 113; Cowp. R. 592; 8 East, R. 203; 11 East, R. 133. 2 Munf. R. 242; 3 Munf. R. 599; 7 N. S. 553; 4 Hayw R. 221, 3 Hawks⁵, R 623 1 Ashm. R. 269; 6 Binn. R. 283; 3 Paige's R. 129; 7 N. S. 548. See Shelf. on Mar⁶. & Div. 711; and Paternity.

ACCESSARY, criminal law. He who is not the chief actor in the perpetration of the offence, nor present at its performance, but is some way concerned therein, either before or after the fact committed.

2. An accessary before the fact, is one who being absent at the time of, the crime committed, yet procures⁷, counsels, or commands another to commit it. 1 Hale, P. C. 615. It is, proper to observe that when the act is committed through the agency of a person who has no legal discretion⁸ nor a will, as in the case of a child or an insane person, the incitor, though absent when the crime was committed, will be considered, not an accessary, for none can be accessary to the acts of a madman, but a principal in the first degree. Fost. 340; 1 P. C. 118.

3. An accessary after the fact, is one who knowing a felony to have been committed, receives, relieves, comforts, or assists the felon⁹. 4 Bl. Com. 37.

4. No one who is a principal (q. v.) can be an accessary.

5. In certain crimes, there can be no accessaries; all who are concerned are principals, whether they were present or absent at the time of their commission. These are treason, and all offences below the degree of felony. 1 Russ. 21, et seq.; 4 Bl. Com. 35 to 40; 1 Hale, P. C. 615; 1 Vin. Abr. 113; Hawk⁴. P. C. b. 2, c. 29, s. 16; such is the English Law. But whether it is law in the United States appears not to be determined¹⁰ as regards the cases of persons assisting traitors¹¹. Serg. Const. Law, 382; 4 Cranch, R. 472, 501; United States v. Fries, Parnphl. 199.

6. It is evident there can be no accessary when there is no principal; if a principal in a transaction be not liable under our laws, no one can be charged as a more accessary to him. 1 W.& M. 221.

7. By the rules of the common law, accessaries cannot be tried without their consent, before the principals. Foster, 360. The evils resulting from this rule, are stated at length in the 8th vol. of Todd's Spencer, pp. 329, 330.