will the command of a master to his servant, or of a principal to his agent; but in all these cases the person doing the wrongful thing is guilty, the same as though he had proceeded self-moved. And if a servant executes a lawful direction in an unlawful manner, he is likewise responsible.2 The partial exception, in favor of women under coverture obeying their husbands, will be treated of in the next chapter. And perhaps persons acting under authority of legal process, and thereby protected, may be regarded as in some sense within the exception.3

1 Hays v. The State, 13 Misso. 246; The State v. Bryant, 14 Misso. 340; Commonwealth v. Drew, 3 Cush. 279; Kliffield v. The State, 4 How. Missis. 304; Schmidt v. The State, 14 Misso. 137; The State v. Bell, 5 Port. 365; The State v. Bugbee, 22 Vt. 32; Curtis v. Knox, 2 Denio, 341; Brown v. Howard, 14 Johns. 119. Commonwealth v. Hadley, 11 Met. 66.

2 Naish v. East India Company, Comyns, 469.

Broom Leg. Max. 2d ed. 69.

[315]

CHAPTER XX.

COVERTURE.

§ 276. A MARRIED woman is called a feme covert · under coverture of her husband. Marriage does not take from the woman any legal capacity for crime, which as a feme sole she possessed. Yet it places her, toward her husband, under certain obligations of obedience, affection, and confidence; in return for which the law allows her this indulgence, that, if through constraint of his will she carries her 'duty of obedience to the excess of doing unlawful acts, she shall not suffer for them criminally. This consideration for the weaker sex is unknown in Scotland,2 and is probably peculiar to the common law, often reproached, in other respects if not in this, for depriving wives of their rights. In regard to the precise nature and extent of the indulgence, the books are obscure and confused; but the following is substantially the modern, and in the main also the ancient, doctrine.

§ 277. First. Actual constraint, short of what is mentioned in the last chapter, imposed by the husband on his wife, will relieve her from the legal guilt of any crime whatever, committed in his presence. From this proposition the offences of treason and murder, some add robbery also, would appear from observations of judges and text writers to be excepted. The reason usually assigned for this exception is,

1 Commonwealth v. Lewis, 1 Met. 151.

21 Alison Crim. Law, 668.

The State v. Parkerson, 1 Strob. 169; 1 Russ. Crimes, Grea. Ed. 18-25. 1 Hawk. P. C. Curw. Ed. p. 4, § 11; Commonwealth v. Neal, 10 Mass.

the enormity of the offences. But this reason seems not satisfactory on principle; and, looking for authority, Mr. Greaves has well observed, that he finds "no decision which warrants the position." Therefore the true view probably is, to dis

1

152; Rex v. Knight, 1 Car. & P. 116, note; Rex v. Stapleton, Jebb, 93 ; and the references in the next note.

1 See the two notes of this able English editor in his edition of Russell on Crimes, p. 18, 25. In the second note he says: "Before Somerville's case, 26 Eliz., and Somerset's case, A. D. 1615, I find no exception to the general rule, that the coercion of the husband excuses the act of the wife. (See 27 Ass. 40, Stamf. P. C. 26, 27, 142; Pulton de Pace Regis, 130; Br. Ab. Coron. 108; Fitz. Ab. Coron. 130, 160, 199.) But after those cases I find the following exceptions in the books; Bac. Max. 57, excepts treason only. Dalton, c. 147, treason and murder, citing for the latter, Mar. Lect. 12 (which I cannot find, perhaps some reader of some Inn of Court). 1 Hale P. C. p. 45, 47, treason, murder, homicide; and p. 434, treason, murder, and manslaughter. Kelyng, 31, an obiter dictum, murder only. Hawk. b. 1, c. 1, § 11, treason, murder, and robbery. Bl. Com. vol. 1, p. 444, treason and murder; vol. 4, p. 29, treason, and mala in se, as murder and the like. Hale, therefore, alone excepts manslaughter, and Hawkins introduces robbery, without an authority for so doing; and, on the contrary, in Reg. v. Cruse, 8 Car. & P. 545, a case is cited, where Borough, J., held that the rule extended to robbery. It seems long to have been considered that the mere presence of the husband was a coercion (see 4 Bl. Com. 28), and it was so contended in Reg. v. Cruse; and Bac. Max. 56, expressly states that a wife can neither be principal nor accessory by joining with her husband in a felony, because the law intends her to have no will, and in the next page he says: If husband and wife join in committing treason, the necessity of obedience does not excuse the wife's offence, as it does in felony.' Now, if this means that it does not absolutely excuse, as he has stated in the previous page, it is warranted by Somerville's case, which shows that a wife may be guilty of treason in company with her husband, and which would be an exception to the general rule, as stated by Bacon. So also would the conviction of a wife with her husband for murder in any case be an exception to the same rule. Dalton cites the exception from Bacon without the rule, and Hale follows Dalton, and the other writers follow Hale; and it seems by no means improbable that the exceptions of treason and murder, which seem to have sprung from Somerville's, and Somerset's case, and which were probably exceptions to the rule as stated by Bacon, have been continued by writers without adverting to their origin, or observing that the presence of the husband is no longer considered an absolute excuse, but only affords a primâ facie presumption that the wife acted by his coercion."

regard this distinction, and in place thereof to adopt the one better sustained, which is stated in our section immediately following the next.

§ 278. Secondly. Whatever, of a criminal nature, the wife does in the presence of her husband, is presumed to be compelled by him;1 while not even a command from him will excuse her, unless she does the act in his presence.2 But an act completed in his presence appears to be within the excuse of compulsion, though the beginning of it was in his absence. On this principle, when "Elizabeth Ryan, better known by the name of Paddy Brown's wife," had been convicted under the English statute of 16 Geo. 2, c. 31, for conveying an implement of escape to her husband in prison, the judges recommended her to a pardon as having acted under this legal coercion; the fact being, that she had procured the instrument by his direction. Here he was absent until the delivery of the instrument to him, when he must have been present. And where a wife went from house to house uttering base coin; and her husband accompanied her, but remained outside; it was held, that her act must be presumed to have proceeded from his coercion. In this case, however, she was all the while either actually or constructively in his presence.

1 Rex v. Price, 8 Car. & P. 19; Davis v. The State, 15 Ohio, 72; The State v. Nelson, 29 Maine, 329; Uhl v. Commonwealth, 6 Grat. 706; Reg. v. Cruse, 8 Car. & P. 541, 2 Moody, 53; Reg. v. Laugher, 2 Car. & K. 225 ; Commonwealth v. Trimmer, 1 Mass. 476; J. Kel. 31. "Felons came to the house of Richard Day, and Margery his wife; the wife knew them to be felons, but the husband did not, and both of them received them and entertained them, but the wife consented not to the felony. And it was adjudged, that this made not the wife accessory." 3 Inst. 108. See also McKeown v. Johnson, 1 McCord, 587.

Rex v. Morriss, Russ. & Ry. 270; Rex v. Hughes, Russ. Crimes, Grea. Ed. 21, 2 Lewin, 229. And see Reg. v. Hill, 3 New Sess. Cas. 348, 1 Den. C. C. 453, Temp. & M. 150, 13 Jur. 545.

3 Note to Rex v. Knight, 1 Car. & P. 116.

§ 278 a. The doctrine, that the wife can rely on the husband's coercion only in respect of acts done in his presence, has not always been in the minds of the judges; though perhaps it is nowhere denied by authority. But plainly it must be correct; for surely a wife out of her husband's presence is sufficiently free from his influence to be answerable for whatever of crime she does, even supposing the general doctrine to be founded in principle.

§ 279. Thirdly. The proposition, that coercion is presumed from the mere presence of the husband, does not apply to certain crimes by reason of their peculiar nature; either as showing so much malignity as to render it improbable a wife would be constrained by this mere presence, without the separate active operation of her own will, into the commission of them;1 or as, while of less magnitude, being in their character such as women are supposed peculiarly to participate in; so that, in these cases, something more is required than the mere presence to establish the coercion. Of the aggravated offences are treason, probably murder, possibly robbery, and it may be even that the list should be still more extended.2 Of the offences peculiar to the female sex, is the keeping of brothels and other disorderly houses. What degree of coer

1 Ante, § 277.

2 Reg. v. Cruse, 2 Moody, 53, 8 Car. & P. 541; Rex v. Stapleton, Jebb, 93; J. Kel. 31; Rex v. Knight, 1 Car. & P. 116, note; Commonwealth v. Neal, 10 Mass. 152; Reg. v. Manning, 2 Car. & K. 887, 903. And see ante, § 277, and note.

3 Rex v. Dixon, 10 Mod. 335; Reg. v. Williams, 10 Mod. 63, 1 Salk. 384; The State v. Bentz, 11 Misso. 27; 1 Hawk. P. C. Curw. Ed. p. 5, § 12, and the authorities there cited. It must be acknowledged, that the cases cited to this section will appear to lawyers who look at decisions only according to the letter of the language employed by the judges, as hardly sustaining the text. But such is a partial and imperfect way of considering authorities. Each case should be contemplated in the light of the whole subject to which it relates, of all analogous subjects, and of subsequent discoveries and improvements in legal science; while the language of the judges, as before observed, ante, § 30, should be taken as qualified by the facts under discussion. In the Massachusetts case of Commonwealth v. Murphy, 2 Gray, 510,