[woman transgressing in concert with a man, and to any slave that committed a joint offence with a freeman: the male or freeman only was punished, the female or slave dismissed: "proculdubio quod alterum libertas, alterum necessitas impelleret" (o). But, (besides that in our law, which is a stranger to slavery, no impunity is given to servants, who are as much free agents as their masters,) even with regard to wives the rule (we may remember) admits of an exception in the case of murder, manslaughter, and the like, these offences being of a deeper dye (p). In treason also, (the highest crime which a member of society can, as such, be guilty of,) no plea of coverture shall excuse the wife-no presumption of her husband's coercion, shall extenuate her guilt (9). And this, as well because of the odiousness and dangerous consequence of the crime itself, as because the husband, having broken through the most sacred tie of social community by rebellion against the state, has no right to that obedience from a wife, which he himself, as a subject, has forgotten to pay. In misdemeanors, also, we may here remark another exception to the general rule, viz., that a wife may be indicted with her husband for keeping a brothel. For this is an offence touching the domestic economy or government of the house, in which the wife has a principal share; and is also such an offence as the law presumes to be generally conducted by the intrigues of the female sex (r). And in all cases where the wife offends alone, without the company or coercion of her husband, she is responsible for her offence as much as any feme sole.] Another species of compulsion or necessity is what our law calls duress per minas (s); that is, threats and menaces, (0) Stiern. de Jure Sueon. 1. 2, c. 4. (p) 1 Hale, P. C. 45, 47, 48, 516; Hawk. P. C. b. 1, c. 1, s. 11; Keyl. 31. Whether the wife is exempt in cases of robbery, has been doubted. (R. v. Cruse, 8 C. & P. 552.) As to wounding with intent to disfigure, see Reg. Smith, 27 L. J. (M. C.) 204. (q) 1 Hale, P. C. 47. (r) Hawk. P. C. b. 1, c. 1, s. 12. which induce a fear of present death or other grievous bodily harm, and [which take away the guilt of many crimes and misdemeanors—at least before the human tribunal (t).] And, [therefore, in time of war or rebellion, a man may be justified in doing many treasonable acts by compulsion of the enemy or rebels, which would admit of no excuse in the time of peace (u).] Duress per minas is not however an excuse in every case, for though a man be desperately assaulted and threatened with death, and cannot otherwise escape than by consenting to kill an innocent person then present,-this will not acquit him of murder if he commits the act; for he ought rather to die himself than kill an innocent (x). [But in such a case, he is permitted to kill the assailant; for there the law of nature and self-defence, its primary canon, have made him his own protector.] It is to be observed too, that the compulsion which takes away guilt, must be the fear of no less than present death or grievous bodily harm (y); for the mere apprehension of having houses burnt or goods spoiled, is not sufficient (z). It must also be a just and well-grounded fear-" qui cadere posset in virum constantem, non timidum et meticulosum," as Bracton expresses it (a) in the words of the civil law (b). [There is a third species of necessity, which may be distinguished from the actual compulsion of external force or fear; being the result of reason and reflection, which act upon and constrain a man's will, and oblige him to do an action, which, without such obligation, would be criminal. This is, when a man has his choice of two evils set before him, and being under a necessity of choosing one, he chooses the least pernicious of the two. (f) Fost. 14, 216; see R. v. Tyler, 8 C. & P. 616. (u) R. v. Tyler, ubi sup.; l'Hale, P. C. 51. (x) 1 Hale, P. C. 51. (y) Bract. 1. 3, tr. 1, c. 4; Co. Here the will Litt. 162 a, 253 b; 2 Inst. 483; (z) Bract. ubi sup. (b) Ff. 4, 2, 5, 6. [cannot be said freely to exert itself, being rather passive than active; or if active, it is rather in rejecting the greater evil than in choosing the less. Of this sort is that necessity where a man, by the commandment of the law, is bound to arrest another for any capital offence, or to disperse a riot, and resistance is made to his authority. It is here justifiable and even necessary to beat, or wound, or perhaps to kill, the offenders, rather than permit the murderer to escape, or the riot to continue. For the preservation of the peace of the kingdom, and the apprehending of notorious malefactors, are of the utmost consequence to the public; and therefore excuse the felony which the killing would otherwise amount to (c). There is yet another case of necessity, which has occasioned great speculation among the writers upon general law; viz. whether a man in extreme want of food or clothing may justify stealing either, to relieve his present necessities? And this both Grotius (d) and Puffendorf (e), together with many other of the foreign jurists, hold in the affirmative; maintaining, by many ingenious, humane, and plausible reasons, that in such cases the community of goods, by a kind of tacit concession of society, is revived. And some even of our own lawyers have held the same (ƒ), though it seems to be an unwarranted doctrine, borrowed from the notions of some civilians; at least it is now antiquated, the law of England admitting no such excuse at present (g). And this its doctrine is agreeable, not only to the sentiments of many of the wisest of the antients, particularly Cicero (h), who holds that "suum cuique incommodum ferendum est, potius quam de alterius commodis detrahendum," but also to the Jewish law, as certified by King Solomon himself (i)—“ If a thief steal to satisfy his (c) 1 Hale, P. C. 51. (d) De Jure B. et P. 1. 2, c. 2. (g) 1 Hale, P. C. 54. ["soul when he is hungry, he shall restore sevenfold, and "shall give all the substance of his house:" which was the ordinary punishment for theft in that kingdom. And this is founded upon the highest reason: for men's properties would be under a strange insecurity, if liable to be invaded according to the wants of others, of which wants no one can possibly be an adequate judge, but the party himself who pleads them. In this country especially, there would be a peculiar impropriety in admitting so dubious an excuse for by our laws such sufficient provision is made for the poor, that it is impossible that the most needy stranger should ever be reduced to the necessity of thieving to support nature. This case of a stranger is, by the way, the strongest instance put by Baron Puffendorf, and whereon he builds his principal arguments; which, however they may hold] elsewhere, [yet must lose all their weight and efficacy in England, where charity is reduced to a system, and interwoven in our very constitution. Therefore our laws ought by no means to be taxed with being unmerciful, for denying this privilege to the necessitous; especially when we consider that the sovereign, on the representation of the ministers of justice, hath a power to soften the law, and to extend mercy in cases of peculiar hardship: an advantage which is wanted in many states, particularly those which are democratical; and these have in its stead introduced and adopted, in the body of the law itself, a multitude of circumstances tending to alleviate its rigour. But the founders of our constitution thought it better to vest in the Crown the power of pardoning particular objects of compassion, than to countenance and establish theft by one general undistinguishing law. To these several cases in which the incapacity of committing crimes arises from a deficiency of the will, we may add one more, in which the law supposes an incapacity of doing wrong, from the excellence and perfection of the person: which extend as well to the will as to the other [qualities of the mind. It is the case of the sovereign, who by virtue of the royal prerogative is not under the coercive power of the law: which will not suppose him capable of committing a folly, much less a crime (k). We are, therefore, out of reverence and decency, to forbear any idle inquiries of what would be the consequence if the sovereign were to act thus and thus: since the law deems so highly of his wisdom and virtue as not even to presume it possible for him to do any thing inconsistent with his station and dignity; and, therefore, has made no provision to remedy such a grievance. But of this sufficient was said in a former volume, to which we must refer the reader (1).] (k) 1 Hale, P. C. 44. (1) Vide sup. vol. 11. p. 498 et seq. |