Nevertheless where malice or a particular intent is an essential ingredient in a crime, or where the question is whether an act was done wilfully or by accident, the state of the accused in regard to sobriety may be material (h).

IV. Act done by misfortune or mischance.

IV. A fourth deficiency of will, is where a man commits an unlawful act by misfortune or mischance, not by design. Here the will observes a total neutrality, and does not co-operate with the deed; which therefore wants one main ingredient of a crime. Of this, when it affects the life of another, we shall find more occasion to speak hereafter; at present only observing, that if any accidental mischief happens to follow from the performance of a lawful act, the party stands excused from guilt; but if a man be doing anything unlawful, and a consequence ensues which he did not foresee or intend, as the death of a man or the like, his want of foresight shall be no excuse; for, being guilty of one offence, in doing antecedently what is in itself unlawful, he may be criminally guilty of the consequence, if not too remote, of his first misbehaviour (i). (614)

or mistake.

But

[*26]

V. Fifthly; ignorance or mistake is another defect of will; when a man, intending to do a lawful act, does that which is unlawful. For here the deed V. By ignorance and the will acting separately, there is not that conjunction between them, which is necessary to form a criminal act. * error in this must be an ignorance or mistake of fact, and not an point of law. As if a man, intending to kill a burglar in his own house, by mistake kills one of his own family, this is no criminal action (k): but if a man thinks he has a right to kill a person excommunicated or outlawed, wherever he meets him, and does so; this is wilful murder. For a mistake in point of law, which every person of discretion not only may, but is bound and presumed to know, is in criminal cases no sort of defence Ignor

(h) Reg. v. Cruse, 8 C. & P. 541, 546; R. v. Thomas, 7 C. & P. 820.

(i) 1 Hale, P. C. 39.
(k) Levett's Case, Cro. Car. 538.

The State, 3 Sm. & M. (Miss.) 518. If, however, the specific intent to take life exists, the homicide is murder in the first degree, though the prisoner was intoxicated at the time he committed the act; as where a man, first having resolved to kill another, drinks to intoxication and then kills him. Smith v. Com., 1 Duvall (Ky.), 224; State v. Gut, 13 Minn. 441. So a man, though drunk, may not be so drunk as to exclude the particular intent. Kenny v. People, 31 N. Y. (4 Tiff.) 330.

If one who is too drunk to entertain the specific intent to steal takes property and returns it before the intent could arise in his mind, he is not guilty of larceny. See Com. v. State, Thacher's Crim. Cas. 163; State v. Cross, 27 Mo. 332; Golden v. State, 25 Ga. 527; Mooney v. State, 33 Ala. 419; O'Herrin v. The State, 14 Ind. 420; Dawson v. State, 16 id. 428; People v. Harris, 29 Cal. 678. So a man passing counterfeit money is not criminally liable if too drunk at the time to know it is counterfeit, or, consequently, to entertain the intent to defraud. Pigman v. The State, 14 Ohio, 555; U. S. v. Roudenbush, 1 Bald. C. C. 514.

(614) The thing intended to be done must be an act morally wrong, malum in se; if merely malum prohibitum, the party will not be answerable for the unforeseen consequence. See Com. v. Judd, 2 Mass. 329; Com. v. Cone, id. 132; Com. v. Dana, 2 Metc. (Mass.) 329.

antia juris, quod quisque tenetur scire, neminem excusat, is as well the maxim of our own (1), as it was of the Roman law (m). (615)

VI. A sixth species of defect of will is that arising from compulsion or inevitable necessity; from a constraint upon the will, whereby a man is urged VI. By compulsion to do that which his judgment disapproves; and which, it is to be and necessity. presumed, his will (if left to itself) would reject. As punishments are only inflicted for the abuse of that free will, which God has given to man, it is therefore highly just and equitable that a man should be excused for those acts which are done through unavoidable force and compulsion.

1. By civil subjection.

*

excuse

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 [* 27] will be admitted in foro conscientiæ, 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 casuits, will hardly bear a doubt (n). 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.

Husband and wife.

As to persons in private relations; constraint of a superior is sometimes allowed as an excuse for criminal misconduct, by reason of the matrimonial subjection of the wife to her husband; but neither a son nor a servant is excused for the commission of any crime, by the command or coercion of the parent or master (o). Thus if a woman commit theft, or burglary, by the coercion of her husband; or even in his company, which the law primá

(Plowd. 343; Ex parte Barronet, Dearsl. 51. Ignorance of a law which is of recent enactment may, however, in some cases afford just ground for application to the leniency of the crown. Thus where the prisoner was indicted for maliciously shooting, and the offence was committed within a few weeks after the passing of the 39 Geo. 3, c. 37, and before notice of it could have

reached the place where the offence was
committed, the judges thought that, as he
could not have known of that act, he ought
to have a pardon. R. v. Bailey, Russ. & Ry.
1, 4; R. v. Esop, 7 C. & P. 456.
(m) Dig. 22, 6, 9.

(n) Ante, vol. i. p. 35.
(0) 1 Hawk. P. Č. 3.

(615) Every man is presumed to know the laws of the country in which he dwells (Lyon v. Richmond, 2 Johns. Ch. 51; Fellows v. Heermans, 4 Lans. 230, 243; Jacobs v. Morange, 47 N. Y. [2 Sick.] 57); or in which he transacts business if he resides abroad (Cambisco v. Maffet, 2 Wash. C. C. 98); and ignorance of the existence of the law which is violated will not excuse from the consequences of guilt any person who has capacity to understand the law. Com. v. Bagley, 7 Pick. (Mass.) 279; Hurt v. State, 19 Ala. 19; Whitton v. The State, 37 Miss. 379; Wineheart v. The State, 6 Ind. 30; The Joseph, 8 Cranch, 451. See Com. v. Doane, 1 Cush. (Mass.) 5; The State v. Homes, 17 Mo. 379; State v. Bond, 8 Iowa, 540. Ignorance or mistake in point of fact is, in all cases of supposed offense, a sufficient excuse. Myers v. The State, 1 Conn. 502. See Com. v. Drew, 19 Pick. (Mass.) 179, 184. See this principle further illustrated in Farbach v. The State, 24 Ind. 77; Rineman v. The State, 24 id. 80; Isham v. The State, 38 Ala. 213, 218; U. S. v. Pearce, 2 McLean, 14. Ignorance of the laws of a foreign country is ignorance of fact. Haven v. Foster, 9 Pick. (Mass.) 112.

*

HUSBAND AND WIFE.

facie construes a coercion: she is dispunishable, being considered to have acted. by compulsion, and not of her own will (p). (616) 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 (q). 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 servant who committed a joint offence with a freeman; the male or freeman only was punished, the female or slave was dismissed: "proculdubio quod alterum libertas, alterum necessitas impelleret (r)". But, (besides that in our law, which is a stranger to slavery, no impunity is given to servants, who [*28] are as much free agents as their masters) even with regard to wives this rule admits of exception in the case of crimes that are mala in se, and prohibited by the law of nature, as murder (s) and the like: (617) 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 (t): 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 some inferior misdemeanors also we may remark exceptions to the rule which confers immunity on a feme covert: thus husband and wife may be jointly convicted of an assault (u), and a wife may be indicted with her husband for keeping a

(r) Stiernh. de Jure Sueon. 1. 2, c. 4.
(8) Reg. v. Manning, 2 Car. & K. 903, n.

(t) 1 Hale, P. C. 47.

(u) Reg. v. Cruse, 8 C. & P. 541, 557, 558. See Reg. v. Smith, Dearsl, & B. 553.

(616) The presumption of coercion, which the law raises where a criminal act is committed by a married woman in the presence of her husband, is only prima facie, and like other presumptions may be repelled. Uhl v. Commonwealth, 6 Gratt. (Va.) 706; Wagener v. Bill, 19 Barb. 321. If the testimony shows nothing farther than that the crime was committed while the husband and wife were both together, the wife is to be acquitted. Com. v. Trimmer, 1 Mass. 479; Com. v. Eagan, 103 id. 71. But if it appears that the wife was the instigator or only active party, or, that the husband, though present, was incapable of coercing, as that he was a cripple confined to his bed, or that the wife was the stronger of the two, then she is to be convicted. Quinlan v. People, 6 Park. 9; State v. Parkerson, 1 Strobh. (S. C.) 169. See Miller v. State, 25 Wis. 384.

The wife may therefore be proceeded against jointly with her husband in the same indictment, and must rely on the coercion for an acquittal only when the proofs are adduced at the trial. Com. v. Murphy, 2 Gray (Mass.), 510; State v. Parkerson, 1 Strobh. (S. C.) 169; The State v. Nelson, 29 Me. 329; The State v. Bentz, 11 Mo. 27; The State v. Montgomery, Cheves (S. C.), 120.

(617) It has been held that where the wife commits the aggravated offense of treason, murder, robbery, or other crime malum in se, even in company with, or by coercion of, her husband, she is punishable the same as if she were a feme sole. See Com. v. Trimmer, 1 Mass. 476; Com. v. Neal, 10 id. 152; Martin v. Com., 1 id. 347; Wagener v. Bill, 19 Barb. 321. But the later and better opinion seems to be that the coercion and presence of the husband is a good defense in all cases, not excepting even the higher grades of felonies mentioned. See 1 Whart. Crim. Law, § 72; 1 Bishop's Crim. Law, § 358, and note.

brothel; (618) 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 (x). (619) And 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.

2. Another species of compulsion or necessity is what our law calls duress per minas (y); or threats and menaces, which induce a fear of death

2. Duress per minas.

of

or bodily harm, and which may take away for that reason the guilt crime; at least before a human tribunal. But then that fear [* 29] which compels a man to do an unwarrantable action, ought to be just and well-grounded; such, "qui cadere possit in virum constantem, non timidum et meticulosum," as Bracton expresses it (z), in the words of the civil law (a). Therefore, in time of war or rebellion, a man may be justified in doing treasonable acts (b) by compulsion of the enemy or rebels, which would admit of no excuse in the time of peace (c).

(x) 1 Hawk. P. C. 2, 3.
(y) See vol. i. p. 161.
(z) L. 2, f. 16.

(a) Dig. 4, 2, 5, and 6.

(b) At the trial of the Duke of Hamilton for treason, during the time of the Commonwealth (4 St. Tr. 1167-8). the subject supra was discussed. The charge against the duke was that he had traitorously invaded this country in a hostile manner, and levied war against the people, &c.; and to this charge the answer first relied upon was, that the accused had acted by command of the parliament of Scotland, which he could not disobey without "incurring the severest censures;" that the duke had acted but as a servant in the matter under investigation, and was tied by oaths and penalties to give obedience: if he had disobeyed, he had been liable to punishment; therefore it was hard for him to be punished for obeying also. Referring to the ground thus relied on, the Attorney-General for the Commonwealth admitted the rule as generally true that a

(620) This however seems only, or at

man is not to be punished for an act which he doth by the necessity of obedience, because he hath not solutum arbitrium; but (said the Attorney-General) this rule is capable of restriction, as well in law as in reason; for, if the act be lawful, a superior command may dispense with some circumstances, but if unlawful, the servant obeying is not the less to be blamed. Necessity of obedience may excuse in privatis, but never in publicis -non valet privilegium contra rempublicam." The duke of Hamilton was convicted and executed.

(c) 1 Hale, P. C. 50. The fear of having houses burnt, or goods spoiled, is no excuse in the eye of the law for joining and marching with rebels. A force upon the person, and present fear of death, will, however, excuse, provided this force and fear continue all the time the party remains with the rebels. It is incumbent upon men who make force their defence to show an actual force, and that they joined pro timore mortis, et recesserunt quam citò potuerunt. Fost. 14, 216.

(618) The husband and wife together may be indicted for forcible entry and detainer (State v. Harvey, 3 N. H. 65), or for keeping a liquor nuisance. Com. v. Tryon, 99 Mass. 442.

It is stated to be a general principle that for fines and forfeitures incurred by the act of the wife for which the husband is liable, either separately or conjointly with his wife, he must be made a party to the judgment, and equally subject to arrest and imprisonment to enforce the payment. Ruther v. State, 1 Port. (Ala.) 132.

A feme covert, upon whose lands her husband erects a nuisance, cannot be made crimi nally answerable for it. People v. Townsend, 3 Hill, 179.

(619) A married woman, living apart from her husband, may be indicted alone and punished for keeping a house of ill fame. Com. v. Lewis, 1 Metc. (Mass.) 151. And it is held that a wife who sells intoxicating liquor without a license, in her husband's absence, is not presumed to act under his coercion, and is responsible. Com. v. Murphy, 2 Gray (Mass.), 510. And see Com. v. Gannon, 97 Mass. 547; Com. v. Welch, id. 593.

But if the wife commits the criminal act with the concurrence or command of the husband, the latter may be indicted for it. Williamson v. The State, 16 Ala. 431.

(620) If one joins with rebels from fear of present death, he is not a traitor while the constraint remains. But the fear of having property wasted or destroyed, or of suffering any

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 human magistrates * are only the [*30] executioners of divine punishment. And therefore, though a man be violently assaulted, and has 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 (d). (621) 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.

choose between two evils.

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 3. Where party reflection, which act upon and constrain a man's will, and oblige is compelled to 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 less 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 by the commandment of the law is bound to arrest another for a felony, or to disperse a riot, and resistance is made to his authority: it may here be 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 (e). (622) 4. There is yet another case of necessity, which has occasioned speculation among writers upon general law, although free from doubt in our own; viz. 4. Want of food whether a man in extreme want of food or clothing may justify or clothing. stealing either, to relieve his present necessities? And this both * Grotius (ƒ) and Puffendorf (g), together with other foreign jurists, have held in the affirmative; maintaining by many ingenious, humane,

(d) 1 Hale, P. C. 51.

(e) 1 Hale, P. C. 53.

(f) De Jure B. et P. 1. 2, c. 2.
(g) L. of Nat. and N. 1. 2, c. 6.

[*31]

other mischief not endangering the person, is no justification of a traitorous act. Respub lica v. McCarty, 2 Dall. 86; 1 Bishop's Crim. Law, § 347.

So it is no justification of a criminal act that it was committed in pursuance of the command of a superior to an inferior; as of a military officer to a subordinate (U. S. v. Jones, 3 Wash. C. C. 209, 220; Com. v. Blodgett, 12 Metc. [Mass.] 56); of a parent to a child, a master to his servant, or of a principal to his agent. See Brown v. Howard, 14 Johns. 119; Hays v. The State, 13 Mo. 246; State v. Bugbee, 22 Vt 32; Com. v. Drew, 3 Cush. (Mass.) 279; Kiiffield v. The State, 4 How. (Miss.) 304; State v. Bell, 5 Port. (Ala.) 365; Curtis v. Knox, 2 Denio, 341; Com. v. Hadley, 11 Metc. (Mass.) 66.

(621) A man who is attacked by a ruffian, and can only save his own life by taking the life of the ruffian, may lawfully do so. People v. Doe, 1 Mich. 451. But there are cases in which one of two innocent parties has no right to prefer his own life to that of the other. U. S. v. Holmes, 1 Wall. Jr. C. C. 1. See Bish. Crim. Law, § 348.

(622) To justify the homicide of a felon for the purpose of arresting him, the slayer must show not only a felony actually committed, but also that he avowed his object, and that the felon refused to submit. The State v. Roane, 2 Dev. (N. C.) 58.