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well grounded, is no duress, neither is the fear of having one's house burned, or one's goods taken away and destroyed, because in these cases should the threat be performed; a man may have satisfaction by recovering equivalent damages, but no suitable atonement can be made for life or limb.1
2. The obligations of civil subjection to the power of others, is as before stated, either public or private.
(a) It is public where 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. Whatever questions may arise in a man's conscience as to whether a man in such case is not bound to obey Divine rather than human law, obedience to such laws while in being, is a sufficient extenuation of civil guilt before the municipal tribunal.3
(6) The obligation of civil subjection to the power of others, arises in private relations in the case of a feme covert, for a married woman is so much favored in respect of that power and authority which her husband has over her, that she shall not suffer punishment for crime committed by her in certain cases by the coercion of her husband, or even in his company and presence, which the law construes a coercion.
But this is only the presumption of law, so that if upon the evidence it clearly appear that the wife was not driven to the offence by her husband, but that she was the principal inciter of it, she is guilty as well as the husband. And if she be in any way guilty of procuring her husband to commit the offence, it seems to make her an accessory before the fact, in the same manner as if she had been sole.5
And the rule has therefore been laid down, that if a felony be shown to have been committed by the wife in the presence of the husband, the prima facie presumption is that it was done by his coercion, but such presumption may be rebutted by proof that the wife was the more active party, or by showing an incapacity
1 Black. Com., 131; Co. Litt., 133. 4 Blac. Com. 28. • Idem ; 1 Russ. on Cr., 18.
* 1 Russ. on Cr., 18; 1 Hale, 45; 1 Hawk. P. C., ch. 1, § 9; 4 Blac. Com., 28; Kel., 31.
• 1 Russ. on Cr., 18; 1 Hale, 516; 2 Hawk. P. C., ch. 29, § 24.
in the husband to coerce. Thus, where a husband and wife were tried together, and it appeared that the husband though present was a cripple, and bed-ridden in the room, it was held that the circumstances under which the husband was, repelled the presumption of coercion.1
The coercion of the husband is not to be presumed when he is not present at the commission of the crime, though it were committed at his procurement, and the mere command of the husband will not excuse her if he be not present, even though he appear at the very moment after the commission of the offence, for no subsequent act of his can excuse her, and the coercion must be at the time of the act done.3
A married woman, however, may be punished with her husband, for keeping a bawdy house, for this is an offence as to the government of the house in which the wife has a principal share, and also, such an offence as may generally be presumed to be managed by the intrigues of the sex. So also, of keeping a gaming house. These last two cases arise, one upon a motion in arrest of judgment, and the other upon demurrer, and the responsibility is presumed in law to rest upon her voluntary participa tion in these particular cases.
Where the wife offends alone without the company or coercion of her husband, she is as much responsible for her offence as if she were a feme sole, and among others, feme coverts have been indicted for riots, violation of excise laws, recusancy, being a common scold, assault and battery, forestalling, forcible entry, trespass and slander, and the rule held good, that she was responsible for the offences, they not having been committed in the presence or by the coercion of the husband.
In cases of treason, murder and robbery, however, it is no ground of exemption from punishment for the wife, that the
· 1 Russ. on Cr. 22; Reg. o. Cruse, 2 M. C. C. R., 53.
• 1 Russ. on Cr., 21; R. v. Morris, Russ. & Ry. 270; 1 Hale Pr., 45; 1 Leach, 447.
• 1 Russ. on Cr., 19; 1 Arch on Cr. Pl., 6; Russ. & Ry. C. C., 270. * 1 Russ. on Cr., 20; 1 Hawk., P. C., ch. 1, § 12; 10 Mod., 63; Salk., 384. • Rex v. Dixon, 10 Mod., 335; 1 Burr, 600.
• 1 Russ on Cr., 21; 4 Blac. Com., 29; Str., 1120; Hob., 96; 11 Co., 63; 1 Sid., 410; Sov., 25; 6 Mod., 213, 239; Salk, 384; 2 Kel., 634; Bac. Abr., Baron and Feme, G note; 1 Hale, 21; Co. Lit., 357; 1 Hawk. ch. 64, § 35; Id.; c. 1,
13, n. 11; 1 Bac. Abr., 294.
offence was committed in company with or by coercion of her husband; for these crimes being mala in se, no plea of coverture will excuse her.1
(C) The private obligation of son or servant is not a sufficient subjection to maintain an excuse for the commission of any crime by the command or coercion of the parent or master.?
Thus, it is no defence to one of two persons indicted for selling liquor in violation of law, that he did the acts complained of as a clerk of the other defendant and by his direction, there being no allegation that the illegal acts were done by compulsion.3
But where a wife is to be considered merely as the servant of the husband, she will not be answerable for the consequences of his breach of duty, however fatal, though she may be privy to his conduct; so held where a husband and wife were jointly indicted for neglecting to provide an apprentice with proper food and nourishment.
(d) Another class of persons who act in subjection to the power of others, are innocent agents; for if a man procure an offence to be committed by an innocent agent, the man alone is guilty, the agent not.5
So where a man was indicted as principal in stealing coal from a mine, and it appeared that he was lessee of one mine, and from thence caused his workmen to take the coal of other persons under the adjoining land, it was observed that although the prisoner did not by his own hand pick or remove the coal, yet if a man do by means of an innocent agent an act which amounts to felony, the employer, and not the agent, is the person accountable for the act.6
* 4 Blac. Com., 29; 1 Russ on Cr., 19; 1 Hawk., P. C., c. 1, § 11; 1 Hale, 45, 47, 48, 516; Kel., 31; R. v. Manning, 2 C. & K., 903; 8 C. & P., 545; 2 Mod., C. C., 54; 1 Arch. Cr. Pl., 6.
4 Blac. Com., 29; 1 Hawk., P. C., 3; 1 Hale, 44, 516. * French o. Peo. 3 Park., 114. • 1 Russ. on Cr. 20; Rex o. Squire, 1799, M. S. • 1 Arch. Cr. Pl., 11.
• R. v. Blasdale, 2C. & K., 765; Vide 1 Car. & K., 295; 2 Id., 202; 2 Hawk., ch. 29, § 11; 10 Met., 259; 1 Gray, 553; 1 Hale, 617.
EXEMPTION FROM PUNISHMENT ARISING FROM IGNORANCE OR MIS
TAKE OF FACT.
The plea or excuse of ignorance, will apply only to ignorance or mistake of fact, and not to any error in point of law. for ignorance of the law of the land is not allowed to excuse any one that is of the age of discretion and compos mentis, from its penalties when broken, on the ground that every such person is bound to know the law, and presumed to have that knowledge.!
And it is no defence for a foreigner that he did not know he was doing wrong, the act not being an offence in his own country.?
The rule in relation to persons claiming exemption from pun. ishment for offences committed from chance or mistake, has been stated to be that where a man in the execution of one act, by misfortune or chance, and not designedly, does another act, for which if he had willfully committed it he would be liable to be punished; in that case if the act he was doing were lawful or merely malum prohibitum, he shall not be punishable for the act arising from misfortune or chance ; but if malum in se, it is otherwise. Thus, a person from ignorance or mistake, not of law but of fact, may commit an offence and still be unpunishable for it, as if a man thinking to kill a house-breaker in his house, kill one of his own family, he is not punishable for it. But if the act he intended doing were unlawful, he may, in general, be punishable for the act he committed through ignorance or mistake, in the same way as if he willfully did it; as for instance, if a man intending to kill A kill B, he will be equally guilty as if he had killed A."
But the rules above laid down where the party claims exemption from punishment, must be understood of cases where the innocent act is done with reasonable skill and care, for if the unintended offence arise from ignorance where skill was required, or from negligence, where great care and caution was required,
1 Russ. on Cr., 25; 4 Black. Com., 27; 1 Hale, 42; Plowd., 343. 9 1 Russ. on Cr., 25; 7 C. & P., 456. : 1 Arch. Cr. Pl., 9; 1 Hale, 39; Fost. 259. * Cro. Car., 538; 4 Blac. Com., 27; 1 Hale's P. C., 42. 61 Arch. Cr. Pl., 10.
the party will, in most cases, be liable to punishment for the act done which was not intended.1
Thus, if one lays poison to kill rats, and another takes it and dies, this may be misadventure; but if it were laid in such a manner and place, as to be easily mistaken for proper food, it might, in some cases, amount to manslaughter.
AMBASSADORS, PUBLIC MINISTERS AND CONSULS.
At the common law ambassadors and their servants were not punishable for offences which are mala prohibita merely and not mala in se, but for such offences as murder or rape of great enormity, against nature and the fundamental laws of society, they were punishable the same as any other alien.2
The constitution of the United States declares that the judicial power of the Supreme Court is extended to all cases affecting ambassadors and other public ministers and consuls, and such jurisdiction being declared original, the federal jurisdiction is understood to be exclusive of the State courts.3
11 Arch. Cr. Pl., 9.
: U.S. Const., art. 3, § 2. Vide Wheat. Int. L., 264, § 6; Vattel, 470, $ 91, et seq.; 1 Bish. Cr. L., 585, Act Cong., 1790, ch. 9, § 25.