breach of it; because every perfon of the age of difcretion and compos mentis is bound to know the law, and prefumed fo to do: Ignorantia eorum, quæ quis fcire tenetur, non excufat (a).

But in fome cafes ignorantia facti doth excuse, for such an ignorance many times makes the act itself morally involuntary; and indeed many of the cafes of misfortune and cafualty mention'd in the former chapter are inftances 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 offense for a foldier to kill, or fo much as to affault his general: fuppofe then the inferior officer fets his watch, or fentinels, and the general to try the vigilance or courage of his fentinels comes upon them in the night in the posture of an enemy, (as fome commanders have too rafhly done) the fentinel ftrikes, or fhoots him, taking him to be an enemy; his ignorance of the perfon excufeth his offense.

In the cafe of Levet indicted for the death of Frances Freeman, the cafe was, that William Levet being in bed and afleep in the night, his fervant hired Frances Freeman to help her to do her work, and about twelve of the clock in the night the fervant going to let out Frances thought she heard thieves breaking open the door; the therefore ran up speedily to her master, and informed him, that she thought thieves were breaking open the door; the mafter rifing suddenly, and taking a rapier, ran down fuddenly; Frances hid herself in [43] the buttery; left she should be discovered; Lever's wife fpying 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 breaft mortally, whereof The inftantly died. This was refolved to be neither murder, nor manflaughter, nor felony. Vide this cafe cited by justice Jones, P. 15 Car. 1. B. R. Cre. Car. 538. Cook's cafe.

I

CHAP. VII.

Touching incapacities, or excufes by reason of civil fubjection.

COME now to those incapacities, which I have ftyled civil, and to confider how far they indemnify and excufe in criminals, and criminal punishments.

And first concerning that, which arifeth by reafon of civil fubjection.

And this civil fubjection is principally of the subject to his prince, the fervant to his master, the child to his parent, and the wife to her hufband. Somewhat I fhall fay of each of these.

[44]

I. As to the first of these subjections, the fubject to his prince; it is regularly true, that the law prefumes, the king will do no wrong; neither indeed can do any wrong (a); and therefore, if the king command an unlawful act to be done, the offenfe of the inftrument is not thereby indemnified (b); for though the king is not under the coercive power of the law, yet in many cases his commands are under the directive power of the law, which consequently makes the act itself invalid, if unlawful, and fo 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 fkill, if one kill the other it is homicide; but if it be by the command of the king, it is faid (d) it is no felony. 11 H. 7. 23. a.

II. As touching the civil fubjection of the child, or fervant; if either of them commit an act, which in itself is treafon, or felony, it is neither excufed nor extenuated as to the point of punishment by the command of his mafter, or parent; for the command is void and against law, and doth not protect either the commander or the inftrument, that executes it by fuch command (e).

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

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

(c) Vide Bratton Lib. ¡ÏI. De actionibus, sap. 9.

(d) Per Fineux Ch. Juft, but Broke in his abridgement of this cafe, Corone 229, fays, that other juftices in the time of Henry VIII. denied this opinion of Fineux, and held, that it was felony to kill a man in jufting and the like, notwithstanding the commandment of the king; for that the commandment is against law. 30 Co. Infi. 56, 160.

(e) Dalt. Juf. Cap. 157. N. Edit.
III. As

D 3

III. As to the civil fubjection of the wife to the husband: tho in many cafes the command, or authority of the husband, either exprefs or implied, doth not privilege the wife from capital punishment for capital offenses; yet in fome cafes the indulgence of the law doth privilege her from capital punishment for fuch offenfes, as are in themselves of a capital nature; wherein these enfuing differences are obfervable.

1. If a feme covert alone without her husband, and without the coercion of her husband, commit treafon or felony, tho it be but larciny, the fhall fuffer the like judgment and execution, as if the were fole; this is agreed on all hands. Stamf. P. C. Lib. I. cap. 19, 15 E. 2. Corone 383.

2. But if the commit larciny by the coercion of the huf[45] band, he is not guilty. 27 Af. 40. (f); and according to fome, if it be by the command of her husband. Ibid. (g) which feems to be law, if her husband be prefent (h); but not if her husband be abfent at the time and place of the felony committed.

3. But this command or coercion of the husband doth not excufe in cafe of treason, nor of murder, in regard of the heinousness of thofe crimes. Mr. Dalton's Juft. Ca. 104 (i). And hence it was that in the cafes of the treafons committed by Arden and Somerville (k) against Queen Elizabeth, both their wives were attaint of high treafon, tho their execution was fpared; and yet they were only affenters to their husband's treafons, and not immediately actors in it, and fo were principals in the fecond degree; and upon the fame account the earl of Somerset and his wife were both attaint, as acceffaries before, in the murder and poisoning of Sir Thomas Overbury (1).

4. If the husband and wife together commit larciny or burglary, by the opinion of Bracton, Lib. III. cap. 32. §. 10(m). both are guilty; and fo it hath been practifed by fome judges. Vide Dalt. ubi fupra, cap. 104. and poffibly in ftrictnefs of law, unless the actual coercion of the husband appear, the may be guilty in fuch a cafe; for it may many times fall out, that the husband doth commit larciny by the inftigation, tho' he cannot in law do it by the coercion of his

(f) F. Corone, 199. Bratton de Corone. sap. 32. § 9.

(g) Queriam ipfa fuperiori fuo obedire debet. Leg Ina, 1. 57. B. Corone 108.

(b Because the law fuppofes her to be then under the coercion of her husband.

Kel. 31.

(i) N. Edit. cap. 157.

(k) 1 And. p. 104.

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

(m) And Sect. 9. and Fleta, Lib. I. cap. 38. 12, 1, 14. efpecially, Si fur tum inveniatur fub Clavibus Uxoris. Vide Bration & Fleta, ibid. and LL, Cnuti, l. 74.

wife; but the latter practice hath obtain'd, that if the hufband and wife commit burglary and larciny together, the wife fhall 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 fitteft to be followed; and the rather, because otherwife for the fame felony the hufband may be faved by the benefit of his clergy, and the wife hanged, where the cafe is within cler[46] gv (n); tho I confefs this reafon is but of fmall 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 larciny, 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, fhe 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 ftands good against the wife, in as much as every indictment is as well feveral as joint; and as upon fuch an indictment the wife may be acquitted, and the husband found guilty, fo è converfo the wife may be convicted, and the husband acquitted; for the indictment is in law joint, or feveral, as the fact happens; as fo is the book of 15 E. 2. Corone 383. and accordingly has been the frequent practice Vide Dalt. ubi fup. cap. 104. where there are feveral inftances 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 infufficient: therefore, tho the former practice be merciful, and cautious, it is not agreeable to law; for, tho ordinarily according to the modern practice the wife cannot be guilty, if the husband be guilty of the fame larciny or burglary; yet if the husband upon fuch an indictment be acquitted, and the wife convict, judgment ought to be given against her upon that indictment;

(a) The reafon 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 ftands, she may in all cafes have the fame benefit by the ftatute of 3 & 4 W. & M. cap. 9. §. 7. as a man may by his clergy.

for every indictment of that nature is joint or feveral, as the matter falls out upon the evidence. Vide 22 E. 4. 7 (2).

5. But if the hufband and wife together commit a treafon, [47] murder, or homicide, tho fhe only affented to the treafon, they fhall be both found guilty, and the wife fhall not be acquitted upon the prefumption, that it was by the coercion of her husband, for the odiousness, and dangerous confequence of the crime; the fame law it is, if she be acceffary to murder before the fact.

6. If the husband commit a felony or treafon, and the wife knowingly receive him, the shall neither be acceffary after as to the felony, nor principal as to the treafon, for fuch bare reception of her hufband; for the is fub poteftate viri, and fhe is bound to receive her husband; but otherwife it is, of the husband's receiving the wife. knowingly after an offenfe 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 indi&tamentum predict' fuper predictam Margeriam factum. minus fufficiens eft, eo quod præd' Margeria tempore quo ipfa ditos felones receptae, feu eis confentire debuiffet, fuit cooperta præd. "Ricardo viro fuo, & adhuc eft, & omninò fub poteftate fua, cui ipfa

in nullo contradicere potuit ; & ex quo non inferitur in indictaments præditio, quod ipfa aliquod malum fecit, nec eis confentivit, feu ipfos felones receptavit, ignorante viro fuo, petit judicium, fi ipfa, vivente "viro fuo, de aliquo receptamento in præfentia viri fui occafionari poffit. -Poftea vifo & diligenter examinato indicamento prædicto fuper 45 præfatam Margeriam facto, videtur curiæ, quod indictamentum illud "minus fufficiens eft ad ipfam inde ponere refponfuram: Ideo ceffet proceffus verfus eam omninò, &c."

66

Upon which record these things are obfervable:

1. That the wife, if alone and without her husband, may be ac ceffary to a felony poft factum. 2. But the cannot together with her husband be acceffary to a felony poft fallum; for it shall be intirely adjudged the act of the husband; and this is partly the reason, why she cannot be acceffary in receipt of her husband being a felon, because the is fub poteftate viri. 3. That in this cafe fhe was not put to plead to the indictment not guilty, but took her exception upon the [48] indictment itself; and fo note the diverfity between an indict ment of felony, as principal, and the indictment of her, as accessary

(o) B. Chartre de pardon 51.

(p) Co. P. G. 101.

after