hand, and successful treason on the other. A sufficient reason, one would imagine, for removing both from the statute book and the codified common law two classes of offences, which to-day may be the greatest of crimes, tomorrow the most glorious of victories over tyranny and prejudice. Real crime does not so easily change its complexion.

There are two other points which do not occupy so conspicuous a place in law as the great classes of offence which have just been noticed, but which yet require some consideration before we go on to the classification of crime and punishment. One of these is the liability or non-liability of a woman to a criminal process during her state of coverture. Nothing can more clearly mark the want of some fixed principles of law than the uncertainty which prevails on this head. Generally, if any certainty can be elicited from so much of doubt and contradiction,*

*Lord Hale lays it down, "As to the civil subjection of the wife to the husband, though in many cases the command or authority of the husband either express or implied doth not privilege the wife from capital punishment for capital offences, yet in some cases the indulgence of the law doth privilege her from capital punishment for such offences as are in themselves of a capital nature wherein these ensuing differences are observable.

1. If a feme covert alone, without her husband, and without the coercion of her husband, commit treason or felony, though it be but larceny, she shall suffer the like judgment and execution as if she were sole; this is agreed on all hands.

"2. But if she commit larceny by the coercion of her husband she is not guilty, and according to some, if it be by the command of her husband; which seems to be the law if her husband be present, but not if her husband be absent at the time and place of the felony committed.

"3. But this command or coercion of the husband does not excuse in case of treason, nor of murder, in regard of the heinousness of these crimes.

"4. If the husband and wife together commit larceny or burglary, by the opinion of Bracton both are guilty, and so it hath been practised by other judges; and possibly in the strictness of law, unless the actual coercion of the husband appear, she may be guilty in such a case; for it may many times fall out that the husband doth commit larceny by the instigation, though he cannot in law do it by the coercion of his wife; but the latter

a married woman charged with committing a criminal act, in case her husband be present at the time, is held to have acted under his coercion, and is on that ground entitled to an acquittal excepting the crime charged be treason or homicide. Now, in this small part of law as laid down by the highest authorities, we find numerous deviations from true principles.

Duress, inducing a just and well-grounded fear of death, or of grievous bodily harm, is held a sufficient excuse from the penal consequences of any act done under its influence. If this principle be a just one it is applicable in all cases; if unjust, in none. Upon what ground is this applied to a married woman under certain circumstances, and only to married women at all? A feme sole (unmarried woman), although her inferior physical strength renders her liable to be in duress to any man, being present, who should threaten her with bodily harm, must prove that such threats were used, ere the law will excuse her; the married woman is held to be coerced by his mere presence-at least some are of that opinionthough there may be no proof of menace; but if he be not present, though previous menace may have been the inducement to the commission of the crime, she is liable, notwithstanding her coverture:-and in those crimes which of all others are most likely to lead a man to use his superior strength to compel assistance from his wife, she is also liable, even though he be present.

practice hath obtained, that if the husband and wife commit burglary and larceny together the wife shall be acquitted and the husband only convicted."

And in Hawkins' Pleas of the Crown, ch. i., it is laid down that "S. 9. 1. A feme covert is so much favored in respect of that power and authority which her husband has over her, that she shall not suffer any punishment for committing a bare theft in company with, or by coercion of her husband.

S. 10. Neither shall she be deemed accessory to a felony for receiving her husband who has been guilty of it, as her husband shall be for receiving her.

"S. 11. But if she commit a theft of her own voluntary act, or by the bare command of her husband, or be guilty of treason, murder, or robbery in company with or by coercion of her husband, she is punishable as much as if she were sole."

It is not easy to discover what is the false principle which lies at the bottom of all these contradictions. Probably most of the statutes and practices of law regarding the female sex originated in their lack of physical strength: for in a semi-barbarous age it was almost equivalent to the having no rights if the possessor were unable to maintain them with a strong hand; and most of our laws having had their origin in such times, the husband claims and is still allowed by English law the power of inflicting both imprisonment and personal chastisement on the wife.*

*The law respecting the control which is given to the husband over the wife has recently been laid down by Mr. Justice Coleridge in the elaborate judgment given by him in re Cochrane, which is to be found reported in 8 Dowling's P. C. 630. A writ of habeas corpus had been granted to the wife, who having been brought into power of the husband by stratagem, had since that time been kept in confinement by him. By the return to the writ it appeared that the parties had lived together for about three years immediately after their marriage in terms of apparent affection, and had two children; that in May, 1836, Mrs. Cochrane withdrew herself and offspring from his house and protection, and had resided away from him against his will for nearly four years. While absent from her husband, Mrs. Cochrane had always resided with her mother, nor was there the slightest imputation on her honor. In ordering her to be restored to the husband, the learned Judge, after stating the question to be, whether by the common law, the husband, in order to prevent his wife from eloping, has a right to confine her in his own dwelling-house, and restrain her from her liberty for an indefinite time, using no cruelty, nor imposing any hardship nor unnecessary restraint on his part, and on hers there being no reason from her past conduct to apprehend that she will avail herself of her absence from his control to injure either his honor or his property, stated that there could be no doubt of the general dominion which the law of England attributes to the husband over the wife; in Bacon's Abridgment, title Baron and Feme (B), it is stated thus: "The husband hath by law power and dominion over his wife, and may keep her by force within the bounds of duty, AND MAY BEAT HER, but not in a violent or cruel manner...." "Although expressed in terms simple almost to rudeness," continues the Judge, "the principle on which it (the law) proceeds is broad and comprehensive; it has respect to the terms of the marriage contract and the infirmity of the For the happiness and honor of both parties, it places the

sex.

But as this power on the part of the husband places the wife in the condition of a slave deprived in great measure of civil rights, so the law in compassion has swerved somewhat from the strictness of justice on the one hand, in order to compensate the injustice done on the other. At least, this seems the most rational account of the practice. But if this be so, it is bad legislation: for every rational being is also a responsible being, nor is society likely to be benefited by relieving at least one-third of its members from the weight of criminal responsibility in a variety of cases: the wise legislator should rather go at once to the root of the evil, and deny to any human being such a legal power over another as may compel to the commission of crime, otherwise the law gives to every man who wishes to commit wrong an accomplice who is likely soon to be rendered unscrupulous by impunity. This thought probably crossed the minds of those who made the exception with regard to murder and treason, for here irresponsible accomplices were too dangerous to be permitted, and the woman is made responsible, notwithstanding the power which the law gives the husband of making her life miserable in case of non-compliance. The root of the evil in this case lies partly in the civil law, which deprives the woman, and especially the feme covert, of many of the rights of a citizen;* but the power of personal violence and abridgment of liberty, which the criminal law tacitly affords to the husband, by refusing to notice such offences of his against the wife, except on very outrageous occasions, must also bear its share of the blame and it is much to be wished that unless absolute

wife under the guardianship of the husband, and entitles him for the sake of both to protect her from the danger of unrestrained intercourse with the world by enforcing," &c.

*The laws regarding property chiefly had their origin in feudal times, when the woman, being unable to do military service, was of course deprived of the privileges which such service obtained. On what principle of right doing the disabilities which that state of society rendered proper are continued, when feudal service is at an end, I leave to those who make and amend laws to consider.

duress be proved, the wife, no less than the husband, should be held responsible for criminal acts, and that in order to this even-handedness of justice, the woman should have the full rights of a free citizen afforded her -should be subject to no imprisonment but for crimes proved in open court, and to no personal violence farther than the enforcement of the sentence of such court should require. It will remain for those who treat of civil law to consider whether on their side also some amendment of the system be not required in order to restore this large portion of responsible moral agents to a position wherein they may be enabled to act up to the requirements of both the moral and social law. The state of society is not likely to be amended by granting impunity for crime as a compensation for denial of rights; thus affording to a large portion of its members freedom to do evil, while abridging very considerably their freedom to do good.

The second point on which I would observe, is one in which our criminal law is so at variance with that written on man's heart, that it would be well were it expunged from our future code. At present those who conceal offenders from the pursuit of justice are made liable to heavy penalties. As usual where human law is at variance with Divine, it is disregarded: the ties of kindred or of affection are too much interwoven in our very nature, and are formed of materials far too strong to be torn asunder by a mere cowardly fear. The friend who knows that by sheltering one who, however he may have transgressed, he still loves-he may expose himself to danger, gains merit in his own eyes, and those of others, by braving the consequences of an act which, though forbidden by law, is in accordance with the best feelings of the human heart: and whatever is felt to be an act of courage and fidelity will be done by brave and good men-men who would have shrunk from committing the crime the perpetrator of which they have sheltered. Doubtless accomplices and persons deeply engaged in the same kind of nefarious practices may also afford shelter to criminals for their own private ends: but it is no less certain that the offence, if it be one, of sheltering a criminal from justice, is more likely to be committed by the generous and the