[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, inasmuch as every indictment is as well several as joint.”

This extract probably gives the key to the confusion of the law upon this subject. It was thought hard that a woman should be hanged for a theft for which her husband had his clergy, and accordingly a loophole was devised for married women, similar, as far as theft was concerned, to clergy for men. Hale's remark as to manslaughter shews how incomplete and unsystematic the arrangement was.

Hawkins (1-4) says: If she . . . be guilty of treason, murder or robbery, in company with, or by the coercion of, her husband, she is punishable as much as if she were sole." And Blackstone excepts "treason and mala in se, as murder and the like."

The recent cases on the subject are referred to in the Illustrations to the Article and in the foot note

Surely, as matters now stand, and have stood for a great length of time, married women ought, as regards the commission of crimes, to be on exactly the same footing as other people. But owing partly to the harshness of the law in ancient times, and partly to its uncertain and fragmentary condition, it is disfigured by a rule which is tolerable only because it is practically evaded on almost every occasion where it ought to be applied.

NOTE II.

(TO ARTICLE 50.)

In R. v. Welham (1 Cox, C. C. 193), Mr. Justice Patteson, after consulting Baron Parke, said: "We are both clearly of opinion that there can be no inciting to commit a felony unless the party incited knows that the act in which he is to engage is a felony." Upon this Mr. Greaves (1 Russ. Cr. 84, note (o)) asks: "How can the guilt of the inciter depend upon the state of mind of the incited? The inciting and the intention of the inciter constitute the offence." As I understand the facts of R. v. Welham, Welham incited Hood to carry off corn which Hood supposed Welham to have a right to carry off. If this were so, Welham's offence, if any, was an attempt to commit a felony by an innocent agent, and not an incitement to commit a felony, which view would justify the language of the two eminent judges. A tells B to put into C's tea something which B supposed to be powdered sugar, but which is really arsenic. This is an attempt by A to murder C, but it is not an inciting B to commit murder.

This view is strengthened by Williams' Case (1 Den. C. C. 39), in which it was held that to instigate a person to poison another under such circumstances that the instigator would have been an accessory before the fact if the poison had been given, was not an attempt to administer poison.

NOTE III.

(TO ARTICLE 182; MAINTENANCE.)

[It is not without hesitation that I have inserted these vague and prac tically obselete definitions in this book. As, however, maintenance and champerty hold a place in all the text books, I have not thought it proper to omit all notice of them. A full account of the crimes themselves, of the vagueness of the manner in which they are defined, and of the reasons why they have so long since become obsolete, may be seen in the Fifth Report of the Criminal Law Commissioners, pp. 34-9. The Commissioners observe in conclusion: "Prosecutions for offences comprehended under the general head of maintenance are so rare that their very rarity has been a protection against the disapproval of judges, and those alterations which a frequent recurrence of doubt and vexation would probably have occasioned . . . But although no cases have occurred where the doctrine of maintenance has been discussed in the Courts, it is by no means true that this law has not been used as the means of great vexation. Instances of this have fallen within our own professional observation in the case of prosecutions commenced, although not persevered in." The commissioners recommend that all these offences should be abolished. The definition of barratry in particular is so vague as to be quite absurd; and the statutory provision as to attorneys practising after a conviction would be utterly intolerable if it had not been long forgotten. I should suppose that there is no other enactment in the whole statute book which authorizes any judge to sentence a man to seven years' penal servitude after a summary enquiry conducted by himself in his own way.

These offences, as sufficiently appears from the preambles of the various statutes relating to them, are relics of an age when courts of justice were liable to intimidation by the rich and powerful and their dependents. As long as the verdict of a jury was, more or less, in the nature of a sworn report of local opinion, made by witnesses officially appointed to make such reports, intimidation must have been possible, and, in many cases, easy. Many statutes on this subject are still in force, and the law relating to it is to be found in 1 Hawkins, 454. The exceptions to the general rule, that a man is not to assist another in a quarrel in which the maintainer has no interest, are so numerous, and, in some cases, so vague (e.g. a man may assist his neighbor from charity), that no less vague proposition than the one in the text would faithfully represent the law.

NOTE IV.

(TO ARTICLES 200, 201.)

These offences have, at least in modern times, been made the subject

13 Edw. 1, c. 25; 13 Edw. 1, c. 49; 28 Edw. 1, c. 11; 20 Edw.3 4; 1 Ric. 2, c. 4; 7 Ric. 2, c. 5; 32 Hen. 8, c. 9.

[of few, if of any, prosecutions. The excessive severity of the judgment for misprision of treason no doubt escaped notice when forfeitures for felony were abolished. The 33 & 34 Vict. c. 23 takes no notice of misprisions.

The definition of misprision of felony is extremely vague. I have found no authority as to what amounts to a concealment. The obligation to discover treason to a judge or magistrate is mentioned by Hale. In early times, when the offence was commoner and more important, the obligation was very clearly set forth. "Si sit aliquis qui alium noverit inde" (i.e. of treason) "esse culpabilem, vel in aliquo criminosum, statim et sine intervallo aliquo accedere debet ad ipsum regem si possit, vel imittere si venire non possit ad aliquem regis familiarem et omnia ei manifestare per ordinem. Nec enim debet morari in uno loco per duas noctes vel per duos dies antequam personam regis videat, nec debet ad aliqua negotia quamvis urgentissima se convertere, quia vix permittitur ei ut retro aspiciat." Bracton, Lib. iii., fo. 118 b.

NOTE V.

(TO ARTICLE 218.)

The latter part of this Article is grounded partly upon general considerations and partly upon the case referred to in the Illustrations. Further illustrations of the same principle might easily be given. For instance. the publication of an edition of Juvenal, Aristophanes, Swift, Defoe, Bayle's Dictionary, Rabelais, Brantôme, Boccaccio, Chaucer, etc., cannot be regarded as a crime; yet each of these books contains more or less obscenity for which it is impossible to offer any excuse whatever. I know not how the publication of them could be justified except by the consideration that upon the whole it is for the public good that the works of remarkable men should be published as they are, so that we may be able to form as complete an estimate as possible of their characters and of the times in which they lived. On the other hand, a collection of indecencies might be formed from any one of the authors I have mentioned, the separate publication of which would deserve severe punishment.

In scientific matters the line between obscenity and purity may be said to trace itself, as is also the case in reference to the administration of justice. It may be more difficult to draw the line in reference to works of art, because it undoubtedly is part of the aim of art to appeal to emotions connected with sexual passion. Practically I do not think any difficulty could ever arise, or has ever arisen. The difference between naked figures which pure-minded men and women could criticize without the slightest sense of impropriety, and figures for the exhibition of which ignominious punishment would be the only appropriate consequence, makes itself felt at once, though it would be difficult to define it.

NOTE VI.

(TO ARTICLES 232-235, 241-2.)

[There is a good deal of difficulty in bringing into a clear and systematic form the provisions of the various statutes relating to the suppression of disorderly houses, and especially gaming-houses. I think, however, that the text represents their effect with substantial accuracy.

The matter stands thus. The earliest Act upon the subject now in force is 33 Hen. 8, c. 9," An Act for Maintenance of Artillery and Debarring of Unlawful Games." This Act was intended to compel people to practise archery by making all other amusements unlawful, and it accordingly forbids by name bowls, quoits, tennis, and various other games, cards and dice, and all other unlawful games prohibited by any of the statutes which it repealed, as well as all other unlawful games to be subsequently invented. The expression "unlawful games" is nowhere defined, unless it means every amusement except archery.

By the 10 Will. 3, c. 23, lotteries were forbidden. By the 12 Geo. 2, c. 28, "the games of ace of hearts, pharaoh, basset and hazard," were declared to be lotteries, and, as well as what we now call raffles, were forbiden under penalties. By the 13 Geo. 2, c. 19, the same course was taken as to a game called passage," and all other games invented or to be invented with one or more die or dice," backgammon only excepted. By 18 Geo. 2, c. 34, these enactments were extended to "a certain pernicious game called roulet or roly poly," and that game and "any game at cards or dice, already prohibited by law," were prohibited afresh.

The 8 & 9 Vict. c. 109, repeals so much of the Act of Henry VIII. as relates to games of mere skill, and provides that upon any information or indictment for keeping a common gaming-house “it shall be sufficient to prove" the matter stated in Article 235.

This enactment was passed in order to dispose of doubts that apart from its provisions it would have been necessary to prove that the parties played at one of the games specifically prohibited by the Acts of Geo. II. or at one of the games of chance prohibited by the Act of Henry VIII.

NOTE VII.

(GENERAL NOTE TO PART V.)

The arrangement of this part, and in particular the composition of Chapters XXII. and XXIII. has been the most difficult portion of the task of preparing this Digest. No one who has not made a special study of the subject, can have any adequate notion of the extreme confusion of the authorities, or of the difficulty of extracting anything systematic and definite from of a number of scattered hints and isolated decisions upon particular cases-mostly relating to the law of homicide. Upon a full

[examination of the authorities on this subject it appeared to me that the law contained in them ought to be divided into four parts; namely:

1. Cases in which it is not criminal to inflict death, or bodily harm intentionally. These are the execution of legal sentences, keeping the peace. prevention of crime, self-defence, the use of lawful force, consent and accident. The expression "lawful force " is unavoidably vague. To enumerate every case in which the use of personal violence may be justified would be inconsistent with the scheme of this work. It would, for instance, be going beyond the limits of criminal law to enquire into the extent of the right of correction vested in parents, masters, captains of merchant ships, &c., or of the right of the owner of a personal chattel to take it away from a trespasser, or to try to enumerate all the cases in which civil and criminal process may be executed by the use of force, and the conditions necessary to make it legal. I have accordingly confined myself to the general principles stated in Articles 256-257.

2. Cases in which the infliction of death or bodily harm by omissions is or is not criminal. Injuries caused by the omission to do an act which the negligent person is under a legal duty to do stand on the same footing as injuries caused by unlawful acts. It is, therefore, necessary to define the commoner and more important of the legal duties which tend to the preservation of life. I have, therefore, deduced them in Chapter XXIII. from the different decisions in which a violation of them has been held to occur. Of course the chapter does not contain an exhaustive list of all the duties which might tend to the preservation of life under particular circumstances, though I hope it notices the most important of them.

3. Cases relating to homicide generally and apart from the distinction between murder and manslaughter. Such are the point of time at which a child becomes a human being, the degree of connection between an act and the death caused by it necessary in order to enable us to say that the agent has killed the deceased, and the case in which the act done is not the sole cause of death. Thus, if an unborn child receives an injury of which it dies before it is fully born, the infliction of the injury cannot be either murder or manslaughter. If it dies after it is fully born the infliction of the injury may be either justifiable homicide, accidental homicide, manslaughter, or murder, according to circumstances. This makes it possible to enumerate the cases in which homicide is unlawful, and so to give a specific meaning to the expression "unlawful homicide." 4. The definition of malice aforethought. Unlawful homicide must be manslaughter at least, and may be murder if it is accompanied by malice aforethought; and, after dealing with this, the transition to the less serious bodily injuries, felonious or otherwise, is easy.

When this division of the subject is carried out it looks simple; at least I hope so; but any one who will try the experiment of referring to the authorities will believe me when I assert that it cost me weeks of thought and labor to put the matter in this shape. I believe, however, that it is now not very incomplete.