New-York tribune., 1878-07-10
MORE EMANCIPATTON.
done.

done.
MORE EMANCIPATTON.
Advocates of the emancipation of woman will be
gratiod to know that still another of those deroga-
tory exemptions those privileges which lmpute IN
feriorty. with which the common law delighted to
embellish the civil condition of married women, is
marked to perish. The doctrine of marital coercion
in crimes wounded by the commissioners of the code
lies at the threshold of our Legislature writing az
the point of DEATH and, quito likely will be laid
next Winter in the same grave with John Doe and
Richard Roe and other dead and gone heroes OF
antiquated Jurisprudence.
The origin of this rule of the courts that when
wife has taken part in a crime, her husband being
present she Is to be deemed to have acted under his
coercion and shall go free, is obscure. Evidently it's
conservative supporters cannot deduce 1t, as they
claim to draw other views of the suhjacton of
woman in matrimony, from the account II oyerts
in Eden, gwen by Genesis. They must admit
more recent origin Of the doctrine. IL Is one
ouite germane to the institutions attributed
TO Alfred, under which tho hundreds were
held respons BILE for good order among the fittings
the tIthings wcrC charged with the behavior If
heads of families, and heads of families with what
ever took place in their several households. But
reading does not trace the rule as far back as TO
Alfred 1t can scarcely be thought 10 rest upon
any general belief. among English Judges
that when man and wife unite in au
offence, the wife is, in most cases, COM
PEELED. On this point the views OF that
worthy jurist Bundle b., are judicious and sem
sible as they are emphatic. They stand reported
in the case of d" Oliver Twist" and arose when
Brownlow argued that the husband is the more
guilty of the t~o in the eye of the law. for ;he law
suppOses that wife acts undcrher husbands dircc-
tion. If the law supposes that sad Bumble, the
law is an ass-an idiot. II that's the eye of the law,
the laws q bachelor; and the worst ] wish the law
is. that his eye may be opened by experience-by
experience" No actual probability Of coercion sus-
tains the rule. The most probable explanation Of
its origin is that which connects it with benefit Of
clergy Any one knows that during a long period in
English history the criminal courts could not
would not nflIct the death penalty upon a priest.
Whoever was found guilty of felony might claim
the immunity Of clergyman. The test of his
being entitled was to show him book, usually the
opening lines Of the Latin version of the 5lst Psalm
and # he cOudread these, the announcement was
made in court. " He reads clergyman"
And then no was, IN the earliest times,
delivered to the ecclesiastical authorities in later
years dismissed, after trivial punishment. This
usage, originating in Difference toward the
spiritual courts, was maintained, long after those
courts lOSL tiicI supremacy 10 temper lut
severity Of the criminal law. In the days
when nearly 200 different offences were
nominally punishable with death, courts and juries
were liberal in deyising fctions TO ameliOrate the
administrations of the law. Thus is mar
rated where Cuprit was proved 10 have stolen n
pair Of pantaloons, and the jury insisted on
rendering verdict of Guilty of manslaughter"
Mansaughter in stealing pantaoons Yes for the
punishment for larceny would be death, while on
verdict of manslaughter only brief Imprisonment
could be imposed Benefit Of clergy was one of the
most prominent of these tctions employed for
avoiding capital punishments. But when
eases occurred in which man and wife
were put on trial, and the man claimed his
clergy, what then should be done with the woman
1t was too absurd to discharge her being priest,
and too shocking to discharge him aud punish her.
Apparently the judges REQUIRED to traditional
decisions in which wives were acquitted because
their acts were really done under compusion and
upon these constructed a fiction Of marital coercion,
in virtue of which they might have way open,
when husband secured an escape from capital
punishment by claiming clergy, for Vouchsaiing
like privilege to his wife tried with him.
If the origin of the rule is obscure and doubtful,
so also is It's application Modern authorities are
not agreed on any list of offences to which 1t shall
be extended. Treason and murder have quite
generally been excluded for their Nervousness,
and misdemeanOTs on account of their yeniaty.
According to books stealing is at the present
day, almost the only crime to which the
rule applies All sorts of exceptions have been adj
mtted and writers are pretty well agreed that There
is no absolute, peremptOry right of wife to be dis
charged, because her husband was present when she
committed the offence; but the District-AttOrney
may prove that she acted voluntarily, and then she
may be convicted In one case where the wife set
fire to the house when her husband was
present but he was bedrdden cripple, and in
another where she wrote a threatening letter,
sealed it, and gave It to him to deliver, which he
did not knowing the contents, the courts held chat
there WAS opportunity for imputing coercion, but
the women were punishable.
II the view urged by the Commissioners shall be
ratified by action of the Legislature next Winter,
and there seems no just reason why it should not be
the change in the law will put cases of husband and
wife tried for an offence they have committed to-
gether, upon the footing with any
other case of joint offence. Counsel for
the wife will be at liberty to make proof that as
matter of fact she did not act voluntarily, but
compelled by force threats of her husband which
she could not resist This proof will be
a good defence. But such eompulson will no
longer be taken for granted. And thus will perish
another of the thraldOms in which the wife was
held, by the old common law, and her equal and
perfect capacity to commit offences, her liberty of
action in breaking the penal code, will be recOg-
nized as fully as the most earnest orators Of the
conventions can demand.