Legal footnotes: Sir William Blackstone on Marital Coercion

Perusing Sir William Blackstone’s “Commentaries on the Laws of England”, I come across something of recent interest. In a section discussing the various deficiencies in will, ergo those conditions, such as a lack of years or a lack of insanity, which preclude the existence of that vital ingredient; criminal intent, I come to this passage on marital coercion, a defence unsuccessfully claimed by Vicky Pryce in her trial for perverting the course of justice:

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 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; though in some cases the command or authority of the husband, either expressed or implied, will privilege the wife from punishment even for capital offences. And therefore if a woman commit theft, burglary, or other civil 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 guilty of any crime; being considered as acting by compulsion and not of her own will.  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. 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 that committed a joint offence with a freeman; the male or freeman only was punished, the female or slave dismissed: “procul dubio quod alterum libertas, alterum necessitas impelleret.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, this rule admits of an exception in crimes that are mala in se, and prohibited by the law of nature, as murder and the like: 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: as well because of the odiousness and dangerous consequences 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 inferior misdemeanours also we may remark another exception: that a wife may be indicted, and set in the pillory 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.  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.

From the fourth book, chapter II; “Of the persons capable of committing crimes

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