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[is as well the maxim of our own law as it was of the Roman (9).
III. A third kind of defect of will is, that arising from compulsion and inevitable necessity. These are a constraint upon the will, whereby a man is urged to do that which 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 hath 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.
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 law, and commands the subject to do an act contrary to religion or sound morality. How far this excuse will be admitted in foro conscientie, or whether the inferior in this case is not bound to obey the Divine rather than the human law, it is not our business to decide; though the question, perhaps, 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 bigoted 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,
(9) See Ff. 22, 6, 9; Plowd. 343; though the act with the commission 1 Hale, P. C. 42. It has been held, of which he is charged is not criminal that it is no defence for a foreigner in his own country. (R. v. Esop, 7 charged with a crime committed in C. & P. 456.) England, to allege that he did not () Ff, 22, 6, 9. know he was doing wrong,—and this
[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, though neither a son, nor a servant, are excused for the commission of any crime, (whether capital or otherwise,) by the command or coercion of the parent or master (i), yet in some cases the command or authority of her husband, either express or implied, will privilege a wife from punishment, even for heinous offences. Thus, if a woman commit theft, burglary or other 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 held to be guilty of any crime, being considered as acting by compulsion and not of her own will(k): a doctrine which is at least a thousand years old in this kingdom, being to be found among the laws of King Ina, the West Saxon (1). And it appears that among the northern nations on the Continent, this privilege extended to any woman transgressing in concert with a man, and to any slave that committed a joint offence with a freeman : the male or freeman only being punished, the female or slave dismissed : “ proculdubio quod alterum libertas, alterum necessitas impelleret” (m). 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 the rule is liable to exception in the case of murder, manslaughter and the like,
these offences being of too deep a dye to be thus excused (n). In treason, also, (the highest crime which a
(i) Hawk. P. C. b. 1, c. 1, s. 14; 1 Hale, P. C. 44, 516.
(k) As to this doctrine, see R. v. Price, 8 Car. & P. 19; R. v. Crusc, ib. 541; R. v. Brooks, 22 L. J. (M. C.) 121; R. v. Smith, 27 ib. p. 204; R. v. Wardroper, 29 ib.
p. 116, et sup. vol. II. p. 272.
(1) Cap. 57; Wilk. 29.
(m) Stiern, de Jure Sueon. 1. 2, c. 4.
(n) i Hale, P. C. 45, 47, 48, 516; Hawk. P. C. b. 1, c. 1, s. 11; Keyl. 31.
[member of society can, as such, be guilty of,) no plea of coverture shall excuse the wife--no presumption of her husband's coercion shall extenuate her guilt (o). And this, as well because of the odiousness and dangerous consequence 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 misdemeanors, also, we may here remark another exception to the general rule, viz., that a wife may be indicted with her husband for keeping a brothel. For this is an offence touching the domestic economy 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 (p). 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.
Another species of compulsion or necessity is what our law calls duress per minas (2); that is, threats and menaces, which induce a fear of present death or other grievous bodily harm, and which take away the guilt of many crimes and misdemeanors—at least before the human tribunal (r). And, 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 (s).] Duress
per minas is not, however, an excuse in every case, for though a man be desperately assaulted and threatened with death, and cannot otherwise escape than by consenting to kill an innocent person then present,
(0) 1 Hale, P. C. 47.
8 C. & P. 616.
(8) R. v. Tyler, ubi sup.; 1 Hale, P. C. 51.
this will not acquit him of murder if he commits the act; for he ought rather to die himself than kill an innocent person (1). But in such a case, he is permitted to kill the assailant; for there the law of nature and self-defence, its primary canon, have made him his own protector. It is to be observed, too, that the compulsion which takes away guilt, must be the fear of no less than present death or grievous bodily harm (u); for the mere apprehension of having houses burnt or goods spoiled, is not sufficient(x). It must also be a just and well-grounded fear—" qui cadere posset in virum constantem, non timidum et meticulosum,” as Bracton expresses it, in the words of the civil law (y).
[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. This 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 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 is required by the law to arrest another, or to disperse a riot, and resistance is made to his authority. It is here justifiable and even necessary to beat, or wound, or perhaps to kill, the offenders, rather than permit an escape, or the riot to continue (z).
(t) 1 Hale, P. C. 51.
(4) Bract. 1. 3, tr. 1, c. 4; Co. Litt. 162 a, 253 b; Inst. 483; Fost. 14, 216; R. v. Southerton,
6 East, 149.
(cc) Bract. ubi sup.
[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 clothing 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 concession of society, is revived. And some even of our own lawyers have held the same (a), 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 (6). And this its doctrine is agreeable, not only to the sentiments of many of the wisest of the antients, particularly Cicero (c), 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 (d)“ If a thief steal to satisfy “his soul when he is hungry, he shall restore sevenfold, “and shall give all the substance of his house:” which was the ordinary punishment for theft in that kingdom. 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 one 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, that it is impossible that the most needy stranger should ever be reduced to the necessity of thieving to support nature. This case of a stranger
(a) De Jure B. et P. 1. 2, c. 2; s. 16; 1 Hale, P. C. 54. L. of Nat. and N. 1. 2, c. 6.
(c) De Off. 1. 3, c. 5. (b) See Britt. c. 10; Mirr. c. 4, (d) Prov, vi. 30.