APPENDIX OF NOTES.

NOTE I.

(TO ARTICLE 30.)

HARDLY any legal doctrine is less satisfactory than the one embodied in this Article. The rule has been too long settled to be disputed; but on examining the authorities in their historical order, it appears to me to have originated, like some other doctrines, in the anxiety of judges to devise means by which the excessive severity of the old criminal law might be evaded.

The doctrine as it now stands is uncertain in its extent and irrational as far as it goes. It is, besides, rendered nearly unmeaning by the rule that the presumption is liable to be rebutted by circumstances. The first authority on the subject is Bracton, in whose time the more recent doctrine appears to have been unknown. He says:-" Uxor vero furi desponsata, non tenebitur ex furto viri, quia virum accusare non debet nec detegere furtum suum nec feloniam, cum ipsa sui potestatem non habeat, sed vir. Consentire tamen non debet feloniæ viri sui nec coadjutrix esse, sed nequitiam et feloniam viri impedire debet quantum potest. In certis vero casibus de furto tenebitur, si furtum inveniatur sub clavibus uxoris, quas quidem claves habere debet uxor sub custodiâ et curâ suâ. Claves videlicet dispensæ suæ, archæ suæ, et scrinii sui: et si aliquando furtum sub clavibus istis inveniatur, uxor cum viro culpabilis erit. Sed quid si res furtiva in manu uxoris inveniatur, numquid tenebitur vir? Non ut videtur, nisi ei expresse consenserit, vel cum rem ei warrantizaverit cum ipsum vocaverit ad warrantum, et tunc consensisse præsumitur nisi expresse dissentiat, vel nisi de eo præsumatur quod fidelis sit eo quod societatem talis uxoris devitavit in quantum potuit. Item quid erit si uxor cum viro conjuncta fuerit, vel confessa quod viro

suo consilium præstiterit et auxilium, numquid tenebuntur ambo? Imo ut videtur, quia vir potest teneri per se cum sit malus, et uxor poterit esse bona et fidelis et liberari. Item uxor mala per se et vir fidelis. Cum ergo uterque possit esse malus per se et alter eorum bonus, ita poterit uterque eorum, simul et conjunctim, esse malus sicut bonus. Solutio. Non igitur erit in omni casu uxor deliberanda propter consensum, auxilium, et consensum, desicut sunt participes in crimine, ita erunt participes in pœna. Et licet obedire debeat viro, in atrocioribus tamen suis latrociniis ei non erit obediendum. Poterit quidem vir ligare et tenere, et uxor sponte et non coarta occidere, et ita ut videtur tenetur maleficio uterque. De concubina vero, vel familia domus, non erit sicut de uxore. Ipsi vero accusare tenentur, vel a servitio recedere alioquin videntur consentire."

The effect of this passage is that the wife is not bound to accuse her husband, nor is she to be regarded as accessory after the fact to a theft committed by him merely because she receives the stolen goods, though she may be so regarded if she so conducts herself as to shew actual consent to the theft. The passage does not contain a word about her right to steal with impunity in his presence.

The next authority is Assise (27 Edw. 3), which is in these words :- "Un feme fuit arraine de ĉ q el aver feloñ emble ii s de pain; q disq. 1 le fist per commandemt de celuy qui fuit son baron a cel temps. Et les justices ne voilent prendre pur pite a sa conis, mes pristeront l'enquest; per q fut trove que el' le fit per cohersion de son baron maugre le soe per que el' ala quite, et dit fuit q p command de baron sans auter cohersion, ne serra nul manner de felon," &c.

In this case the jury seem to have found actual coercion by the husband. The dictum that the husband's command, he being absent, relieves the wife from guilt is clearly wrong according to more modern authorities. In Fitzherbert's Abridgment (A D. 1565), Corone, 199, the case in the Book of Assizes is quoted in an abridged form; and Staundforde (A.D. 1583), c. 19, quotes Fitzherbert, but adds a quare to the dictum appended to the case, on which Fitzherbert relies. He does not, however, quote the case itself.

Coke (3rd Inst. ch. xlvii. p. 108) says::-"A feme covert committed not larceny if she does it by the coertion of her husband; but a feme covert may commit larceny if she doth it without the

coertion of her husband." He quotes 27 Ass. 40, and Staundforde, but does not say that the bare presence of the husband is to be regarded as coercion, and does not notice the dictum as to the husband's command.

Bacon, upon the maxim "Necessitas inducit privilegium quoad jura privata," observes, "the second necessity is of obedience, and therefore where baron and feme commit a felony, the feme can neither be principal nor accessory, because the law intends her to have no will in regard of the subjection and obedience she owes to her husband." For this he quotes the passage in Staundforde already referred to, and Fitzherbert (Corone, 160), which states, as the effect of a case, in 2 Edw. 3, that eight men and a woman being convicted of felony, and the woman declaring that she was the wife of one of the men, and the jury saying they knew nothing of it, the judge inquired of the bishop. Lord Bacon's proposition thus goes infinitely beyond his authorities.

Dalton (Justice, ch. clvii.) says:— "A feme covert doth steal goods by the compulsion or constraint of her husband. This is no felony in her." And he quotes Fitzherbert and the case quoted by Fitzherbert. He also quotes Bracton in a very unintelligent and fragmentary way, and says that in murder and treason the husband's compulsion does not excuse the wife. As to murder, his authority is Marrow, an author of the time of Henry VII. As to treason, he quotes Fitzherbert (Cor. 130). This passage refers to the case of a woman sentenced to be burnt for coining, respited on the ground of pregnancy, delivered of her child, and becoming pregnant again before she was burnt. The case does not say that she was married at all, and rather implies that she was not.

Hale (1 P. C. 45) says:-"If she (the wife) commit larceny by the coercion of the husband, she is not guilty (27 Ass. 40), and according to some, if it be by the command of her husband, which seems to be law if the husband be present, but not if her husband be absent at the time and place of the felony committed.

"But this command or coercion of the husband doth not excuse in case of treason nor of murder, or in regard of the heinousness of those crimes." He quotes for this the passage in Dalton given

1 Lambard's "Preface" begins, "To write of the office and duties of a justice of the peace, after H. Marrow," is like "bringing owls to Athens." In Willes v. Bridger, 2 B. & Ald. 282. Marrow is said to have been a Master in Chancery.

above and the cases of Arden and Somerville as to treason, and Lady Somerset as to murder. He goes on: "If the husband and wife together commit larceny or burglary, by the opinion of Bracton (lib. iii. ch. xxxii. s. 10), both are guilty," (Bracton says nothing of the sort), "and so it hath been practised by some judges. Vide Dalt., ubi supra, ch. civ." (Dalton does not say so.) "And possibly, in strictness of law, unless the actual coercion of the husband appears, 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, though I confess this reason is but 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, 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 arrange

ment 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 47.)

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 141; MAINTENANCE.)

It is not without hesitation that I have inserted these vague and practically obsolete definitions in this book. As, however, main