of it; because every person of the age of discretion and compos mentis is bound to know the law, and presumed so to do: Ignorantia eorum, quæ quis scire tenetur, non excusat.(a)

But in some cases ignorantia facti doth excuse, for such an ignorance many times makes the act itself morally involuntary; and indeed many of the cases of misfortune and casualty mentioned in the former chapter are instances that fall in with this of ignorance: I shall add but one or two more.

It is known in war, that it is the greatest offence for a soldier to kill or so much as to assault his general: suppose then the inferior officer sets his watch, or sentinels, and the general to try the vigilance or courage of his sentinels comes upon them in the night in the posture of an enemy, (as some commanders have too rashly done) the sentinel strikes, or shoots him, taking him to be an enemy; his ignorance of the person excuseth his offence.

In the case of Levet indicted for the death of Frances Freeman, the case was, that William Levet being in bed and asleep in the night, his servant hired Frances Freeman to help her to do her work, and about twelve of the clock in the night the servant going to let out Frances thought she heard thieves breaking open the door; she therefore ran up speedily to her master, and informed him, that she thought thieves were breaking open the door; the master rising suddenly, and taking a rapier, ran down suddenly; Frances hid herself in the buttery; lest she should be discovered; Levet's wife, [ 43 ] spying Frances in the buttery, cried out to her husband, "Here they be, that would undo us." Levet runs into the buttery in the dark, not knowing Frances, but thinking her to be a thief, and thrusting with his rapier before him hit Frances in the breast mortally, whereof she instantly died. This was resolved to be neither murder, nor manslaughter, nor felony. Vide this case cited by justice Jones, P. 15 Car. 1. B. R. Cro. Car. 538. Cook's case.

CHAPTER VII.

TOUCHING INCAPACITIES, OR EXCUSES BY REASON OF CIVIL SUBJEC

TION.

I COME now to those incapacities, which I have styled civil, and to consider how far they indemnify and excuse in criminals, and criminal punishments.

And first concerning that, which ariseth by reason of civil subjection.

And this civil subjection is principally of the subject to his prince, the servant to his master, the child to his parent, and the wife to her husband. Somewhat I shall say of each of these.

I. As to the first of these subjections, the subject to his prince; it is regularly true, that the law presumes, the king will do no wrong;

(a) Plowd. 343. a.

neither indeed can do any wrong;(a) and therefore, if the king command an unlawful act to be done, the offence of the instru[44]ment is not thereby indemnified; (b) for though the king is

not under the coercive power of the law,[1] yet in many cases his commands are under the directive power of the law, which consequently makes the act itself invalid, if unlawful, and so renders the instrument of the execution thereof obnoxious to the punishment of the law. Vide Stamf. P. C. 102. b.(c) yet in the time of peace, if two men combat together at barriers, or for trial of skill, if one kill the other it is homicide; but if it be by the command of the king, it is said (d) it is no felony. 11 H. 7. 23. a.

II. As touching the civil subjection of the child, or servant; if either of them commit an act, which in itself is treason, or felony, it is neither excused nor extenuated as to the point of punishment by the command of his master or parent; for the command is void and against law, and doth not protect either the commander or the instrument, that executes it by such command.(e)

III. As to the civil subjection of the wife to the husband: though in many cases the command, or authority of the husband, either express or implied, doth not privilege the wife from capital punishment for capital offences; yet in some cases the indulgence of the law doth privilege her from capital punishment for such offences, as are in themselves of a capital nature; wherein these ensuing differences are observable.

1. If a feme covert alone without her husband, and without the coercion of her husband, commit treason or felony, though it be but larceny, she shall suffer the like judgment and execution, as if she were sole; this is agreed on all hands. Stamf. P. C. Lib. I. cap. 19. 15 E. 2. Corone 383.

2. But if she commit larceny by the coercion of the hus[45] band, she is not guilty. 27 Ass. 40;(ƒ) and according to some, if it be by the command of her husband Ibid.(g) which seems to be law, if her husband be present;(h) but not if her husband be absent at the time and place of the felony committed.

3. But this command or coercion of the husband doth not excuse in case of treason, nor of murder, in regard of the heinousness of those crimes. Mr. Dalton's Just. Ca. 104.(i) And hence it was that

(a) Co. Lit. 19. b. 4.

(b) As if one man arrest another merely by the king's commandment, that shall be no excuse to him, but he is nevertheless liable to an action of false imprisonment. 16 H. 6. F. Monstrauns de faits 182. 1 H. 7. 4. B. Prerogative 139.

(c) Vide Bracton Lib. III. De actionibus, cap. 9.

(d) Per Fineux Ch. Just, but Broke in his abridgement of this case, Corone 229. says, that other justices in the time of Henry VIII. denied this opinion of Fineux, and held, that it was felony to kill a man in justing and the like, notwithstanding the cominandment of the king; for that the commandment is against law. 3 Co. Inst. 56. 160. (e) Dult. Just. Cap. 157. N. Edit.

(f) F. Corone, 199. Bracton de Corone. cap. 32. § 9.

(g) Quoniam ipsa superiori suo obedire debet. Leg. Ina, l. 57. B. Corone 108.

(h) Because the law supposes her to be then under the coercion of her husband. Kel. 31. (i) N. Edit. cap. 157.

[1] The People v. McLeod, 1 Hill's Rep. 377.

in the cases of the treasons committed by Arden and Somerville(k) against Queen Elizabeth, both their wives were attaint of high treason, though their execution was spared; and yet they were only assenters to their husband's treasons, and not immediately actors in it, and so were principals in the second degree; and upon the same account the earl of Somerset and his wife were both attaint, as accessaries before, in the murder and poisoning of Sir Thomas Overbury.(1)[2]

(k) 1 And. p. 104.

(1) Stat. Trials, Vol. I. Tr. 28 & 29.

[2] Somerville's case, 1 And. 104, which is the only case where husband and wife have been convicted of treason, only shows that a wife may be convicted of treason with her husband. There Arden and his wife were charged with procuring Somerville to destroy the Queen, and both found guilty, but as none of the evidence is stated, it may have been that the wife was the instigator, and both properly convicted. In Somerset's case, which is the only case of a wife convicted as well as her husband, as an accessary to a murder, according to 3 Inst. 50, the Earl and Countess were indicted as accessaries before the fact, to the murder of Sir T. Overbury, the wife was arraigned alone, first, and pleaded guilty, and being asked what she had to say why judgment of death should not be given against her, she said, "I can much aggravate but nothing extenuate my fault." (2 St. Tr. 957.) Assuming, therefore, that the indictment was joint against both, the case only proves that the wife may properly be convicted upon her own confession, which indicates that she was the more guilty party; as it is clear she was in this case. See Hume's Hist. Eng. vol. 6, p. 68, &c. But as the Earl and Countess were separately arraigned, and on different days, and as the indictment against the Earl, as recited in his pardon, (2 St. Tr. 1014,) is against him alone, it may be inferred that the Countess was indicted alone; if so, the case is merely that of a wife pleading guilty to an indictment charging her alone as accessory, and unless in such a case she either pleaded that she committed the offence in company with her husband, (as it seems she may, Post. 47, M. 37 Ed. 3 Rot. 34,) or such appeared to be the case upon her trial, no question as to coercion could arise. In Reg. v. Alison, 8 C. & P. 418, Mr. J. Patteson mentions an old case where a husband and wife intending to destroy themselves, took poison together, the husband died but the wife recovered, and was tried for murder, and acquitted solely on the ground that being the wife of the deceased she was under his control, and inasmuch as the proposal to commit suicide had been first suggested by him, it was considered that she was not a free agent; but I know from the best authority, (says Mr. Greaves, in a note in Russell's C. & M.) that the very learned judge guarded against subscribing to the reason given for this decision. Probably the case referred to is an anonymous one. Moor, 754, where it is said the question was, whether it was murder in the woman, and the Recorder caused the special matter to be found, but no decision is stated, nor have I been able, (adds Mr. Greaves,) to find the case elsewhere. 1 Russ. on Crimes, 18, note. Before Somerville's case, 26 Eliz. and Somerset's case, A. D. 1615, there seems no exception to the general rule that the coercion of the husband excuses the act of the wife. (See 27 Ass. 40; Stamf. P. C. 26, 27. 142; Pulton de Pace Regis. 130; Br. Ab. Coron, 108; Fitz Ab. Coron. 130. 160. 199.) But after those cases there are the following exceptions in the books:-Bac. Max. 57, excepts treason only; Dalton, 147, treason and murder, citing for the latter, Mar. Lect. 12, (perhaps some reader of some Inn of Court,) 1 Hale P. C. p. 45. 47, treason, murder, and homicide; and p. 434, treason, murder, and manslaughter; Keyling, 31, an obiter dictum, murder only; Hawk. b. 1, c. 1, s. 11, treason, murder, and robbery; Black. Commentaries, vol. i. p. 444, treason and murder: vol. iv. p. 29, treason and mala in se, as murder and the like. Hale, therefore, alone excepts manslaughter, and Hawkins introduces robbery without an authority for so doing; and, on the contrary, in Reg. v. Cruse, 8 C. & P. 545, a case is cited where Burrough, J., held, that the rule extended to robbery. It seems long to have been considered that the mere presence of the husband was a coercion, (see 4 Black Com. p. 23,) and it was so contended in Reg. v. Cruse; and Bac. Max. 56, expressly states that a wife can neither be principal nor accessary by joining with her husband in a felony, because the law intends her to have no will, and in the next page he says, "If husband and wife join in committing treason, the necessity of obedience doth not excuse the wife's offence, as it does in felony." Now if this means that it does not absolutely excuse as he has stated in the previous page, it is warranted by Somerville's case, which shows

4. If the husband and wife together commit larceny or burglary, by the opinion of Bracton, Lib. III. cap. 32. § 10.(m) both are guilty; and so it hath been practised by some judges. Vide Dalt. ubi supra, cap. 104. and possibly in strictness of law, unless the

(m) And Sect. 9. and Fleta, Lib. I. cap. 38. § 12, 13, 14. especially, Si furtum inveniatur sub Clavibus Uxoris. Vide Bracton & Fleta, ibid. and LL. Cnuti, l. 74.

that a wife may be guilty of treason in company with her husband, and which would be an exception to the general rule as stated by Bacon. So also would the conviction of a wife with her husband for murder in any case be an exception to the same rule. Dalton cites the exception from Bacon, without the rule, and Hale follows. Dalton and the other writers follow Hale; and it seems by no means improbable that the exceptions of treason and murder, which seem to have sprung from Somerville's and Somerset's cases, and which were probably exceptions to the rule as stated by Bacon, have been continued by writers without adverting to their origin, or observing that the presence of the husband is no longer considered an absolute excuse, but only affords a primá facie pre sumption that the wife acted by his coercion. See the argument of Mr. Carrington, in Reg. v. Cruse, 8 C. & P. 541. 1 Russ. on Crimes, 18. 24. Mr. Greave's Notes, Am. ed. 1845. See Com. v. Neal, 10 Mass. R. 152. Marlow v. Com. 1 Mass. R. 347. 391. Com. v. Lewis, 1 Mete. R. 151. The People v. Townsend, 3 Hill's N. Y. R. 479. The State v. Harvey, 3 N. Hamp. R. 65. Com. v. Trimmer, 1 Mass. R. 476. Jones v. The State, 5 Blackf. (Ind.) R. 141. 492. Burn's Just. tit. Wife, 29th Lond. ed.

There is no doubt that in all misdemeanors a wife may be jointly convicted with her husband, as she may be proved to have acted voluntarily, but there is no authority that the same rule as to coercion, which applies to felonies, does not extend to misdemeanors. On the contrary, Rex v. Price, 8. C. & P. 19, and Anon. Math. Dig. Cr. Law 262, show that the rule applies to the misdemeanor of uttering base coin, and the reason given in Rex v. Dixon, 10 Mod. 335, and Reg. v. Williams, Salk. 384, as to the keeping of gaming and bawdy houses, that the wife may probably have as great, nay a greater share in the criminal management of the house, than the husband, tends to show that in order to convict the wife, she must be acting voluntarily and not under coercion. In Reg. v. Cruse, 8 C. & P. 541, the wife had taken a very active part. Reg. v. Williams, and Reg. v. Ingram, Salk. 384, were in arrest of judgment, and therefore the Court would presume if neces sary, that the wife had acted voluntarily; and Reg. v. Dizon, was on demurrer, and the Court would, and it seems did, hold the indictment good, because it might be proved that the wife was not under coercion. There is no authority, therefore, that the rule does not extend to misdemeanors, and the tendency of the authorities certainly is, that it does. 1 Russ. on Crimes, 19 note (i), 5th Am. Ed. 1845.

The following positions seem fairly deducible from the cases upon this subject; 1st, There is no objection on demurrer to an indictment which charges husband and wife jointly, with the commission of an offence; for the indictment is joint and several, and both may be convicted, if it appear that the wife was not acting under the coercion of the husband or either of them; 2dly, There is no objection either in arrest of judgment or on error, to the joint conviction of husband and wife of the same offence, for she may have been the instigator, and both guilty; 3dly, Upon the trial of husband and wife, the primâ facie presumption is, that she acted under his coercion, provided he were actually present at the time the felony was committed. If, therefore, nothing appear but that the felony was committed while they were both together, she jury ought to be directed to acquit the wife; 4thly This presumption is prima facie only, and may be rebutted either by showing that the wife was the instigator or more active party, or that the husband though present was incapable of coercing, as that he was a cripple, and bed ridden, or that the wife was the stronger of the two. 1 Russ. on Crimes, 21 note (g), 4 Steph.C .81. The English cases will be found in 1 Russ. cited sup., and the American in Wharton's Am. Crim. Law, 19, 23.

The following passage is taken from the Report of the Massachusetts Commissioners, appointed "to reduce so much of the Common Law as relates to Crimes and Punishments to a written and systematic code:"

“A married woman is presumed not to act under compulsion by her husband in the commission of treason, murder, or robbery in his presence. In respect to other felonies, and to misdemeanors committed by her, or to which she is accessary before the fact, in presence of her husband, and in which he is concerned, she is presumed to act under

actual coercion of the husband appear, she may be guilty in such a case; for it may many times fall out, that the husband doth commit larceny by the instigation, though he cannot in law do it by the coercion of his wife; but the latter practice hath obtained, that if the husband and wife commit burglary and larceny together, the wife shall be acquitted, and the husband only convicted; and with this agrees the old book, 2 E. 3. Corone 160. And this being the modern practice and in favorem vitæ is fittest to be followed; and the rather, because otherwise for the same felony the husband may be saved by the benefit of his clergy, and the wife hanged, where the case is within clergy;(n) though I confess this reason is but [ 46 ]

(n) The reason of this is, because a woman cannot by law have the benefit of the clergy. 11 Co. 29. b. yet in Fitz. Corone 461, it was admitted, that a woman might claim clergy; however, as the law now stands, she may in all cases have the same benefit by the statute of 3 & 4 W. & M. cap. 9. § 7. as a man may by his clergy. See post c. 44 n.

compulsion by him, unless such presumption is precluded by the kind, nature, or character of the offence, as in case of her being a common scold; but such presumption may be rebutted by the circumstances of the case, or by other evidence. Archb., P. Q. S. 80. Dick's C., 1 Russ. 16. 1 Hawk, c. 1, s. 12, 7ed. Dixon & Wise's C., 10 Mod. 375. Dalt, 126.

She is not chargeable with instigating her husband to any crime.

She is not chargeable for receiving goods stolen, embezzled, or extorted by her husband; nor as an accessary after the fact to the commission of a crime by her husband. The common law holds the wife answerable for treason, murder, and robbery committed by her in presence of her husband, without any presumption that she is under compulsion by him. In respect to other felonies, and to misdemeanors so committed by her, the doctrine of the common law is very obscure. It is most frequently laid down that she is presumed to be under compulsion in the commission of other felonies in his presence. But it is distinctly stated by Mr. Deacon, v. 2, p. 1377, and by Mr. Archbold, Pr. Q. S., 81, citing 1 Hale, 516, that this presumption may be rebutted by evidence to the contrary. And yet in case of its being proved that the wife was the active party in receiving stolen goods in her husband's presence, she has been held not to be chargeable with the offence. Draper's C., Ry. & M. 234, cited 2 Deac. 178–9. Archer's C., cited Archb., P. Q. S. 80, which is a direct contradiction of the above doctrine; and see also Squire's C., Russ. 16, 7ed., cited 2 Deac. 1378, which was the case of an apprentice being starved to death by the husband and wife. By the English law, this presumption, though confined to felonies, has a very wide application, since the catalogue of felonies is in England much extended by statutes. It is implied in the English law, though no rule is emphatically laid down to that effect, that the presumption is applicable to misdemeanors committed by the wife in presence of her husband. Thus Mr. Deacon, v. 2, p. 1378, says, "In inferior misdemeanors, there is another exception to the irresponsi bilty of the wife, for she may be indicted and punished with her husband for keeping a brothel, this being considered to be an offence touching the domestic economy and govern. ment of the house in which the wife has necessarily a principal share." This distinctly implies that the presumption extends to misdemeanors. But there are some other misdemeanors to which the exception seems to apply more obviously than to that of keeping a brothel. In case of perjury by the wife, though the husband might be present at the time of her testifying, the presumption of coercion by him would ordinarily be absurd. The presumption of coercion by the husband is also limited in the code reported by the commissioners, to offences by the wife in which “the husband is concerned," for otherwise the law would make the husband guilty of a crime committed by the wife, though he should endeavour to prevent her from committing it. This limitation of the presumption is not known to be stated in the books of the common law, but it can hardly be supposed that it is not part of that law, though the language in which the presumption is usually stated in the books excludes such limitation. 1 Hawk, c. 1, 7ed. Archb., P. Q. S. 80, 81. See Hammond's Project of a Code of Forgery, a. 633, p. 197. Six v. Cheeney, Wright's R., 9. Report of the Penal Code of Massachusetts, c. iv. (Boston, 1844.)

VOL. I.-7