of small value, for in manslaughter committed jointly by husband and wife the husband may have his clergy, and yet the wife is not on that account to be privileged by her coverture.

And accordingly in the modern practice, where the husband and wife, by the name of his wife, have been indicted for a larceny, or burglary jointly, and have pleaded to the indictment, and the wife convicted, and the husband acquitted; merciful judges have used to reprieve the wife before judgment, because they have thought, or at least doubted, that the indictment was void against the wife, she appearing by the indictment to be a wife, and yet charged with felony jointly with her husband.

But this is not agreeable to law, for the indictment stands good against the wife, in as much as every indictment is as well several as joint; and as upon such an indictment the wife may be acquitted, and the husband found guilty, so è converso the wife may be convicted, and the husband acquitted; for the indictment is in law joint, or several, as the fact happens; and so is the book of 15 E. 2 Coronæ 383, and accordingly has been the frequent practice Vide Dalt. ubi sup. cap. 104, where there are several instances of the arraigning of husband and wife upon a joint indictment of felony; which, if by law she could not be any way guilty, had been erroneous, for the indictment itself had been insuflicient: therefore, though the former practice be merciful, and cautious, it is not agreeable to law; for, though ordinarily according to the modern practice the wife cannot be guilty, if the husband be guilty of the same larceny or burglary; yet if the husband upon such an indictment be acquitted, and the wife convict, judgment ought to be given against her upon that indictment; for every indictment of that nature is joint or several, as the matter falls out upon the evidence. Vide 22 E. 4. 7.(0)

5. But if the husband and wife together commit a treason, [47] murder, or homicide, though she only assented to the treason, they shall both be found guilty, and the wife shall not be acquitted upon the presumption, that it was by the coercion of the husband, for the odiousness, and dangerous consequence of the crime;[3] the same law it is, if she be accessary to murder before the fact.

6. If the husband commit a felony or treason, and the wife knowingly receive him, she shall neither be accessary after as to the felony, nor principal as to the treason, for such bare reception of her husband; for she is sub potestate viri, and she is bound to receive her husband; but otherwise it is, of the husband's receiving the wife. knowingly after an offence of this nature committed by her.(p)

"M. 37. E. 3. Rot. 34. Linc. coram Rege. Ricardus Dey & Margeria Uxor ejus indictati, pro receptamento felonum; Margeria dicit, quod indictamentum predict' super predictam Margeriam factum mi(0) B. Chartre de pardon 51. (p) Co. P. C. 108.

[3] See note ante p. 47.

nus sufficiens est, eo quod præd' Margeria tempore quo ipsa dictos felones receptasse, seu eis consentire debuisset, fuit cooperta præd. Ricardo viro suo, & adhuc est, & omnino sub potestate sua, cui ipsa in nullo contradicere potuit; & ex quo non inseritur in indictamento prædicto, quod ipsa aliquod malum fecit, nec eis consentivit, sen ipsos felones receptavit, ignorante viro suo, petit judicium, si ipsa, vivente viro suo, de aliquo receptamento in præsentia viri sui occasionari possit. Postea viso & diligentèr examinato indictamento prædicto super præfatam Margeriam facto, videtur curiæ, quod indictamentum illud minus sufficiens est ad ipsam inde ponere responsuram: Ideo cesset processus versus eam omninò, &c."

Upon which record these things are observable:

1. That the wife, if alone and without her husband, may be accessary to a felony post factum. 2. But she cannot together with her husband be accessary to a felony post factum; for it shall be entirely adjudged the act of the husband; and this is partly the reason, why she cannot be accessary in receipt of her husband being a felon, because she is sub potestate viri. 3. That in this case she was not put to plead to the indictment not guilty, but took her exception upon the indictment itself; and so note the diversity [48] between an indictment of felony, as principal, and the indictment of her, as accessary after; for in the former case she shall be put to plead not guilty to the indictment, though it appear in the body thereof, that she is covert. 4. That yet the indictment stood good, as to the husband; and upon this consideration, though it is true the husband and wife may be guilty of a treason, as is before shown, yet it seems, she shall never be adjudged a traitor barely for receiving her husband, that is a traitor, or for receiving jointly with her husband any other person that is a traitor, unless she were also consenting to the treason, for it shall be entirely adjudged the act of her husband.

It is certain a feme covert may be guilty of misprision of treason committed by another man than her husband: but whether she can be guilty of misprision of treason, if she knows her husband's treason, and reveal it not, is a case of some difficulty: on the one side, the great obligation of duty she owes to the safety of the king and kingdom, the horridness of the offence of treason, and the great danger that may ensue by concealing it, seems to render her guilty of misprision of treason, if she should not detect it; on the other side, it may be said, she is sub potestate viri, she cannot by law be a witness against her husband, and therefore cannot accuse him. Ideo quære. But, certainly, if she consented to the treason of her husband, though he were the only actor in it, she is guilty as a principal, and hath no privilege herein by her coverture, as is before shown.

CHAPTER VIII.

CONCERNING THE CIVIL INCAPACITIES BY COMPULSION AND FEAR.

I JOIN these two incapacities together, because they are much of the same nature, as to many purposes; and how far these give a privilege, exemption, or mitigation in capital punishments, is now to be considered.

First, There is to be observed a difference between the times of war, or public insurrection, or rebellion, and the times of peace; for in the times of war, and public rebellion, when a person is under so great a power, that he cannot resist or avoid, the law in some cases allows an impunity for parties compelled, or drawn by fear of death, to do some acts in themselves capital, which admit no excuse in the time of peace.

M. 21 E. 3. coram Rege. Rot. 101. Linc.' " Walter de Alyngton, and divers of his confederates at St. Botolph's Regiam potestatem assumentes, & ut de Guerrâ insurgentes' quendam Thomam de Okeham sutorem in capitaneum, & majorem suum eligerunt," seized on two ships, and took away the corn ;(a) appointed a bell to be rung ;(b) and commanded, that at the ringing thereof ipsi & eorum quilibet essent parati, &c. "Et plures homines villæ prædictæ, qui ad maleficia sua consentire noluerunt, ceperunt, & eos sibi jurare fecerunt ad imprisas suas manutenendas." They were arraigned upon the indictment, and committed: "Illi, qui coacti fuerunt jurare, dimittuntur per manucaptionem ; & illi, qui receperunt denarios, petunt quod, ex quo patet per indictamentum prædictum, quod ipsi coacti fuerunt recipere denarios contra voluntatem suam, petunt, quod possint quieti

recedere; & consideratum est per curiam, quod nihil mali in [50] his reperitur; sed quia curia nondum advisatur, dies datus est per manucaptionem; ideo venit jurata." I find no further proceeding against them.

M. 7 H. 5. coram Rege. Rot. 20. Heref. cited Co. P. C. p. 10. Those, that supplied with victuals Sir John Oldcastle, and his accomplices then in rebellion, as is said, were acquitted by judgment of the court; because it was found to be done pro timore mortis, & quod recesserunt, quàm cito potuerunt: note, it was only furnishing of victuals, and pro timore mortis, which excused them: for after the battle of Evesham, in 49 H. 3., when that prudent act was made for the settling of the kingdom, called Dictum de Kenilworth, those, that were drawn to assist the barons against the king, though they were not put into the rank of those that paid five years value of their lands for their assistance, viz. those, that gratis, & voluntarie, & non coacti miserunt servitia sua contra regem, & ejus filium; yet, it seems, they were put to a smaller mulct; for by the 12th, 13th, 14th, and 15th

(a) One hundred and twenty quarters of corn, value 361.
(b) Quandam eommunem campanam ordinaverunt pulsari.

articles: "Coacti, vel metu dueti, qui venerunt ad bella, nec pugnaverunt, nec male fecerunt; impotentes, qui vi vel metu coacti miserunt servitia sua contra regem, vel ejus filium; coacti, vel metu ducti, qui fuerunt deprædatores, & cum principalibus prædonibus prædationes fecerunt, & quando commodé potuerunt, recesserunt, & ad domos redierunt; [emptores scienter rerum alienarum valorem bonorum, quæ emerunt, restituant, & in misericordia domini regis sint, quia contra justitiam fecerunt, quia rex inhibuit, jam dimidio anno elapso;] illi, qui ad mandatum comitis Leycestriæ ingressi sunt Northampton, nec pugnaverunt, nec malum fecerunt, sed ad Ecclesiam fugerunt, quando regem venientem viderunt, & hoc sit attinctum per bonos, solvant, quantum valet terra eorum per dimidium annum; illi, qui ex feodo comitis tenebant, sint solum in misericordia domini regis: impotentes, & alii homines, qui nihil mali fe- [51] cerunt, statim rehabeant terras suas, & damna recuperent in curia domini regis."

But even in such cases, if the whole circumstances of the case be such, that he can sufficiently resist, or avoid the power of such rebels, he is inexcusable, if upon a pretence of fear, or doubt of compulsion, he assist them.

Now as to times and places of peace.

If a man be menaced with death, unless he will commit an act of treason, murder, or robbery, the fear of death doth not excuse him, if he commit the fact; for the law hath provided a sufficient remedy against such fears by applying himself to the courts and officers of justice for a writ or precept de securitate pacis.(d)

Again, if a man be desperately assualted, and in peril of death, and cannot otherwise escape, unless to satisfy his assailant's fury he will kill an innocent person then present, the fear and actual force will not acquit him of the crime and punishment of murder, if he commit the fact; for he ought rather to die himself, than kill an innocent: but if he cannot otherwise save his own life, the law permits him in his own defence to kill the assailant; for by the violence of the assault, and the offence committed upon him by the assailant himself, the law of nature, and necessity, hath made him his own protector cum debito moderamine inculpatæ tutela, as shall be farther showed, when we come to the chapter of homicide se defendendo.(*)

But yet farther, it is true in cases of war between sovereign princes the law of nations allows a prince to begin hostility with such a prince that designs a war against him; and if the fear be real, and upon just ground, non tantum de potentia sed & de animo.-Grot de jure belli & pucis, Lib. II. cap. 22. § 5. he may prevent the other's actual aggression, and need not expect, till the other actually invade him, when possibly it may be too late to make a safe defence; and the reason is, because they are not under any superior, that may by his process or interposition secure the prince against [ 52

(d) See this writ in the Register, fol. 88. b. F. N. B. Vet. Edit. 79. N. Edit. 177. (*) Postea cap. 33.

such a just fear; and therefore in such case the law of nations allows a prince to provide for his own safety.

But it is otherwise between subjects of the same prince: If A. fears upon just grounds, that B. intends to kill him, and is assured, that he provides weapons, and lies in wait so to do; yet without an actual assault by B. upon A. or upon his house, to commit that fact, A. may not kill B. by way of prevention; but he must avoid the danger by flight, or other means; for a bare fear, though upon a just cause, and though it be upon a fear of life, gives not a man power to take away the life of another, but it must be an actual and inevitable danger of his own life; for the law hath provided a security for him by flight, and recourse to the civil magistrate for protection by a writ or precept de securitate pacis: and thus far touching the privilege by reason of compulsion or fear.[1]

CHAPTER IX.

CONCERNING THE PRIVILEGE BY REASON OF NECESSITY.

ALTHOUGH all compulsion carry with it somewhat of necessity, and abates somewhat of the voluntariness of the act that is done, yet there are some kinds of necessities, that are not by any external compulsion or force.

Touching the necessity of self-preservation against an injurious as

[1] An apprehension, though ever so well grounded, of having property wasted or destroyed, or of suffering any other mischief not endangering the person, will afford no excuse for joining or continuing with rebels. Rex v. McGrowther, 1 East. P. C. 71.

But it is otherwise if the party join from fear of death, or by compulsion. Rex v. Gordon, 1 East. P. C. 71.

On the indictment on the stat. 7, and 8 Geo. 4, c. 30, s. 4, for breaking a threshing machine, the judge allowed a witness to be asked whether the mob, by whom the ma chine was broken, did not compel persons to go with them, and then compel each person to give one blow to the machine; and also at the time when the prisoner and himself were forced to join the mob, they did not agree together to run away from the mob the "first opportunity. Rex v. Crutchley, 5 Car. & P. 133.

A., who was insane, collected a number of persons together, who armed themselves, having a common purpose of resisting the lawfully constituted authorities; A. having declared that he would cut down any constable who came against him. A., in the presence of C. and D., two of the persons of his party, afterwards shot an assistant of a constable, who came to apprehend A. under a warrant :-Held, that C. and D. were guilty of murder, as principles in the first degree, and that any apprehension that C. and D. had of personal danger to themselves from A. was no ground of defence for continuing with him after he had so declared his purpose; and also that it was no ground of defence that A. and his party had no distinct or particular object in view when they assembled together and armed themselves. Reg. v. Tyler, 8 Car & P. 616, Per Denman, Ch. Just.

The apprehension of personal danger does not furnish any excuse for assisting in doing any act which is illegal.

The only force that doth excuse, is a force upon the person and present fear of death; and this force and fear must continue all the time the party forced remains with the party forcing. It is incumbent upon men, who make force their defence, to show an actual force, and that they joined pro timore mortes, et recesserunt quam ceto potuerunt. Fost. Dis. 14, 216; 4 Steph. Com. 8384. The U. S. v. Vigol, 2 Dall. R. 346; U. S. v. Haskell, 4 Wash. C. C .R. 402.