, 1922-04-13


speaking countries, whose laws are
founded largely upon h old English
common law. since b rights and
privileges OF the swo sexes have been
made moro nearly equal, has brought
about a number of interesting legal
situations. among them tho testimony
OF wife or husband In criminal cases.
The question Is pertinent in England
and IN causing considerable discus.
zion. No doubt the same question will
arise in this country. The immunity
feature IND the legal fiction that ro-
CARDS the husband and wife one win
both have to be abandoned by leg1s-
lativa action. The latter already ap-
pears ridiculous to both profession and
laity.
The London Saturday Review pub
fishes a very interesting discussion OF
the subject which is Of equal value
on this | d of the cean- 1t follows:
The effect OF modern legislation and
the social changes brought about by
the a war. mako It opportune per
haps to consider the present state OF
the law as to the criminal responsible
ity OF married women. especially in
view of the result of the Peel prose-
cution at the Central criminal court.
From the earliest times the legal text
book writer's assumed husband and
wife to be one person in thu eye of
the law, 'unica persona 'quia caro- una
ct sanguis unus,' and from this stand.
point was deduced the legal fiction
of the immunity of n wife from pun
ishment for crime committed in the
presence and therefor under the pre-
stunned coercion of her husband. SO
great a favorite.' says Blackstone, is
the female sex of the laws OF England
Regarding the mode in which such
rules of law are formulated Mr.. Shell
don Amos says cScicnce Of law p.
49,. "A spontaneous practice is first fol-
lowed and, II good and useful is gen.
orally copied over and over again. the
more SO as habit n association al
ways render h imitation of an old
and familiar practice easier than in
Venting a new and untried one. But
as Sir Henry Maine points put cvflage
Communities p. 5S) If a tradition be
not kept steady by corresponding prac-
tice it may be warped by all sorts of
extraneous Influences Again, Mr..
Sheldon Amos observes Qpid., p. 12s),
h same course of Legislation must be
pursued with respect to h legal dis
tinctious between men and women as
between men and men. This is not a
question OF policy but OF moral necessi-
ty. and it will. sooner or later, be rec
ognized to be so.'
Leaving the academic for the more
practical side of the question, we
would draw attention to the case OF
r. VS.. Hughes. in which Baron Thorn
son laid 1t down that IL a wife commits
a felony in the presence of her hus-
band the law out of tenderness for the
wife raises n presumption prima facie
and prima facic only that the felonl-
u act was done under the coercion
of the husband, but it is absolutely
necessary that the husband should in
such case be actually present and TAX
ing part in the Transaction. This pre-
sumption, however. may be rebutted
as 1t actually was in the case las re-
ferred to by evidence that in commit
ting the felony the wife was tho more
active party.
The authorities upon this question
do not, unfortunately. provide any
definite or reasoned classification of
the the cases to which this presump-
ton applies. With regard to this
Lord Halsbury said in the case .of
Brown VS.. Attorney. General for New
Zealand that the decisions on the sub
ject have not been entirely uniform.
II is said by Blackstone that a married
woman is responsible for all crimes
which though committed in the pres
lei of her husband are, like murder,
mala in Sc: but this dictum is obvi-
ously too wide. for the presumption of
coercion has been applied to such fell
onies as. burglary and larceny.
The Law as to whether this pre-
sumption of coercion may be extended
to o~ffenses OF misdemeanor seems to
be no less nebulous. B~lackstone's
opinion was that in an misdemeanors
h vito may be found guilty with the
husband. but here again exceptions
have been made 1t was held Or vs..
Wlliams) that a wife was rightly con-
victed with her husband of keeping a
brothel and the ratio decidendi in that
case was that the wife might probably
have as rrpaf nav a D7-eata- uh,- q,