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his judgment disapproves; and which, it is to be presumed, his will (if left to itself) would reject. As punishments are therefore only inflicted for the abuse of that free will, which God has given to man, it is highly just and equitable that a man should be excused for those acts which are done through unavoidable force and compulsion.

1. Of this nature, in the first place, is the obligation of civil subjection, whereby the inferior is constrained by the superior to act contrary to what his own reason and inclination would suggest: as when a legislator establishes iniquity by a law, and commands the subject to do an act contrary to religion or sound morality. How far this excuse will be admitted in foro conscientiae, or whether the inferior in this case is not bound to obey the divine, rather than the human law, it is not my business to decide; though the question, I believe, among the casuists, will hardly bear a doubt. But, however that may be, obedience to the laws in being is undoubtedly a sufficient extenuation of civil guilt before the municipal tribunal. The sheriff, who burnt Latimer and Ridley, in the bigotted days of queen Mary, was not liable to punishment from Elizabeth, for executing so horrid an office; being justified by the commands of that magistracy, which endeavoured to restore superstition under the holy auspices of its merciless. sister, persecution.

As to persons in private relations; the principal case, where constraint of a superior is allowed as an excuse for criminal misconduct, is with regard to the matrimonial subjection of the wife to her husband; for neither a son nor a servant are excused for the commission of any crime, whether capital or otherwise, by the command or coërcion of the parent or master; though in some cases the command or authority of the husband, either expressed or implied, will privilege the wife from punishment, even for capital offences. And therefore if a woman commit theft, burglary, or other civil offences against the laws of society, by the coercion of her husband; or even in his company, which the law construes a coercion; she is not guilty of any crime; being considered as acting by compulsion and not of her own will.

Which doctrine is at least a thousand years old in this kingdom, being to be found among the laws of king Ina, the West Saxon. And it appears that among the northern nations on [ 29 ] the continent, this privilege extended to any woman transgressing in concert with a man, and to any servant that committed a joint offence with a freeman; the male or freeman only was punished, the female or slave dismissed: “ procul "dubio quod alterum libertas, alterum necessitas impelleret." 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 this rule admits of an exception in crimes that are mala in se, and prohibited by the law of nature, as murder and the like: not only because these are of a deeper dye, but also, since in a state of nature no one is in subjection to another, it would be unreasonable to screen an offender from the punishment due to natural crimes, by the refinements and subordinations of civil society. 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 the husband's coercion shall extenuate her guilt: as well because of the odiousness and dangerous consequences 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 inferior misdemesnors also we may remark another exception; that a wife may be indicted and set in the pillory with her husband, for keeping a brothel; for this is an offence touching the domestic oeconomy 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 . 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. (4)

(4) Wherever coverture excuses a wife from punishment, it is upon the principle laid down in the text, of a coercion of the moral will; but that principle is not allowed to prevail in the highest, or the lowest offences. In the highest, as treason and murder, it is over-ruled, not so much, I con

2. ANOTHER species of compulsion or necessity is what our law calls duress per minas"; or threats and menaces, which induce a fear of death or other bodily harm, and which take away for that reason the guilt of many crimes and misdemesnors; at least before the human tribunal. But then that fear which compels a man to do an unwarrantable action, ought to be just and well-grounded; such "qui in virum "constantem cadere posset, et non in hominem meticulosum,” as Bracton expresses it', in the words of the civil law. 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'. (5) This however seems only, or at least principally, to hold as to positive crimes, so created by the laws of society; and which therefore society may excuse; but not as to natural offences so declared by the law of God, wherein

ceive, for the reason assigned by the author, and drawn from the distinction between offences against the law of nature, and those against the law of society, as "for the odiousness and dangerous consequences of them." Why it is not allowed to prevail in misdemesnors is not so clear. Mr. Christian, in a note upon this passage, explains it by reference to the law of clergy; he says, that where husband and wife were tried for a felony 'within clergy, the husband would have escaped, and the wife suffered, as she never could have the benefit of clergy,—and that she was acquitted to prevent that hardship; but as there was no clergy in misdemesnors, and therefore the husband did not escape, the reason of the rule, and the rule ceased. It is inconsistent with this reasoning, that in the clergyable felony of manslaughter, the husband escaped, and yet coverture did not privilege the wife; so that the hardship was allowed to exist at least in one instance. 1 Hale, H. P. C. 46. - Perhaps as forfeiture was a necessary consequence on attainder for felony, and married women could have nothing to forfeit; whereas there was no forfeiture in misdemesnor; the reason for the exception may be found in this distinction. I am, however, more inclined to think that no one reason will be found capable of explaining both the rule and all the exceptions; but that policy, the humanity of the judges, the nature of the respective punishments, and other causes concurred with technical reasons to produce them.

(5) 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 remains with the rebels. It is incumbent on every man, who makes force his defence, to shew an actual force, and that he quitted the service as soon as he could. Foster, 14.

human magistrates are only the executioners of divine punishment. And therefore, though a man be violently assaulted, and hath no other possible means of escaping death, but by killing an innocent person; this fear and force shall not acquit him of murder; for he ought rather to die himself, than escape by the murder of an innocent". But in such a case he is permitted to kill the assailant; for there the law of nature, and self-defence, it's primary canon, have made him his own protector.

3. 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. And that 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. Here the will cannot be said freely to [ 31 ] 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, to 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 ".

4. 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 cloathing may justify stealing either, to relieve his present necessities? And this both Grotius and Puffendorf, 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 con

m 1 Hal. P. C. 51.

" Ibid. 53.

° de jure b. & p. l.2. c.2.
P de jure n. & g. l.2. c.6.

cession of society is revived. And some even of our own lawyers have held the same, 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'. And this it's doctrine is agreeable not only to the sentiments of many of the wisest antients, particularly Cicero, 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': "if a thief steal to satisfy his soul [32]"when he is hungry, he shall restore sevenfold, he shall give "all the substance of his house:" which was the ordinary punishment for theft in that kingdom. (6) 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 man 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 by the power of the civil magistrate, that it is impossible that the most needy stranger should ever be reduced to the necessity of thieving to support nature. The 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 upon the continent, where the parsimonious industry of the natives orders every one to work or starve, yet must lose all their weight and efficacy in England, where charity is reduced to a system, and interwoven in our very

(6) It is rather singular that the author referring to Puffendorf but a few lines before, does not notice his observation upon this passage, that it does not suppose those circumstances of extreme indigence or necessity, upon which alone he is arguing. He had also before that, remarked that the case of the Jews formed an exception to his general principle, because among them the law compelled the giving of alms; and therefore on that account also the extremity could not occur, which he contends to be a justification of theft. It may be added too, that the force of the passage is a little altered by its not being cited entire. "Men do not despise a thief, if he steal to satisfy his soul when he is hungry; but if he be found," &c.