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 charac ter 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., 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. 8., 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., 1 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 government 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. 1.-7

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 insufficient: therefore, though the former practice be merciful, and cautious, it is not agreeable to law; for, thongh 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 felouum; 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, seu 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 Oke-. ham 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 communem campanam ordinaverunt pulsari.

articles: "Coacti, vel metu ducti, 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 tutelæ, 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 & pacis, 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.