He told me to…
There’s a concept in the law called duress.
It’s defined as “unlawful constraint exercised upon a man whereby he is forced to do some act against his will.”1
And it was very much on the minds of the very first lawmakers in what was then the Territory of Arizona.
Yep, The Legal Genealogist is heading west later this week, to speak at the West Valley Genealogical Society’s 2019 Annual Seminar, and so I’m poking around in some of those early Arizona laws.
And there’s one that’s a doozy, reflecting a mindset that’s very much a quirk of early law.
Now this notion of duress isn’t quirky — if somebody puts a gun to your head and tells you to take money out of the cash register, and you do it not because you’re a willing participant but only because you have an aversion to bullets in your brain, sending you to prison for robbery or theft doesn’t make a lot of sense, does it?
But the way that concept was written into early Arizona territorial laws is enough to give one pause. The provision, adopted as part of the first compiled code of territorial laws in 1864, read:
A married woman, acting under the threats, command, or coercion of her husband, shall not be found guilty of any crime not punishable with death: Provided, it appear from all the facts and circumstances of the case that violent threats, command, or coercion were used; and in such case the husband shall be prosecuted as principal, and receive the punishment which would have otherwise been inflicted on the wife if she had been found guilty.2
Oh, my. The married woman’s “he told me to do it” defense.
Or you could call it the defense of coverture — the “condition or state of a married woman.”3 The notion straight out of the English common law that a married woman was pretty much totally under the control of her husband and so anything a wife did was his fault. As Blackstone’s Commentaries on the Law of England put it:
neither a son or 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 express 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 merely by his command, which the law construes a coercion; or even in his company, his example being equivalent to a command; 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…4
And this early Arizona law is pretty much in keeping with that notion, isn’t it? Except, at least, that in early Arizona, the law excluded the most serious offenses — those punishable by death. A wife couldn’t kill somebody, for example, and get off on the grounds that her husband told her to do it.
Now I don’t mean to suggest that Arizona didn’t realize that other people than married women could be coerced. The law back then did provide that any person who committed a crime not punishable by death who could show “that his or her life was in danger, or that he or she had reasonable cause to believe and did believe that his or her life was in danger, shall not be found guilty…”5
And duress as a concept exists today in most modern laws: there’s still a duress defense that’s recognized in most jurisdictions that people shouldn’t be punished for non-violent crimes they commit only because someone else forced them to do it. Modern Arizona law has just such a provision.6
But a married woman won’t skate on any criminal charge today merely because hubby was standing next to her… or by arguing that “he told me to do it.”
The laws — and the times — do change.
Cite/link to this post: Judy G. Russell, “The defense of coverture,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 12 Feb 2019).
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 402, “duress.” ↩
- §7, Chapter X, “Of Crimes and Punishments: Persons capable of committing Crimes,” in The Howell Code … of the Territory of Arizona (Prescott : Arizona Miner, State Printer, 1865), 49; digital images, Google Books (https://books.google.com/ : accessed 12 Feb 2019). ↩
- Black, A Dictionary of Law, 298, “coverture.” ↩
- William Blackstone, Commentaries on the Law of England, Book the Fourth: Of Public Wrongs, 5th ed. (Dublin : p.p., 1773), 28; digital images, Google Books (https://books.google.com/ : accessed 12 Feb 2019). ↩
- §10, Chapter X, “Of Crimes and Punishments: Persons capable of committing Crimes,” in The Howell Code … of the Territory of Arizona, 50. ↩
- Arizona Rev. Stat. 13-412, Arizona State Legislature (https://www.azleg.gov/ars/ : accessed 12 Feb 2019). ↩