The defence, if it be admitted, must be that the mental act of ‘volition’ is absent—the accused, in other words, pleads that his conduct was not voluntary. Compulsion can take other forms than physical force; but in whatever form it appears, the Court have been undisposed to admit that it can be a defence for any crime committed through yielding to it and the law on the matter is both meagre and vague.
It can, however, be considered under the following heads:
1. Obedience to orders;
2. Compulsion by husband over wife;
3. Compulsion by threats of injury to person or property;
4. Compulsion by necessity.
(1) Obedience to orders:
This rarely affords any defence in English Law. But a reference may be had to Sections 77 and 78, I.P.C., where the accused is immune from criminal responsibility under certain circumstances.
(2) Compulsion by husband over wife:
As regards marital compulsion, the law is vague. But, however, it may be stated that it does not apply to high treason or murder. This form of compulsion probably does not apply to robbery. It seems to apply to misdemeanour in general.
(3) Compulsion by threats of injury to person or property:
It is recognised as an excuse for crime only; in case in which compulsion is applied by a body of rebels or rioters and in which the offender takes a subordinate part in the offence.
Criminal law is itself a system of compulsion on the widest scale. It is a collection of threats of injury to life, liberty and property if people do commit such crimes. No doubt the moral guilt of the person who commits a crime under compulsion is less than that of a person who commits it freely.
But according to Stephen, in no case it ought, to be admitted as an excuse for a crime though it ought to operate in the mitigation of punishment in most though not in all cases.
This form of compulsion is a subject-matter of Section 94, I.P.C. and shall be discussed later.
(4) Compulsion by necessity:
The authors of the Code remark—”We have considered whether it would be advisable to except, from the operation of the penal clause of the Code, acts committed in good faith from the desire of self-preservation; and we have determined not to exempt them.”
Had necessity been once admitted as a defence, it would have been made a legal cloak for unbridled passion and atrocious crime. Necessity, no doubt, as is often said overcomes law. A man sometimes commits offences under necessity and preserves his life.
To preserve one’s life is generally speaking a duty, but it may be the plainest and highest duty to sacrifice it”. Law does not permit a man to commit crime under the cloak of necessity.
“It is just possible to imagine cases in which the expediency of breaking the law is so overwhelmingly great that the people may be justified in breaking it but those cases cannot be defined before and must be adjudicated upon by a jury afterwards, the jury not being themselves under the pressure of the motives which influence the alleged offender.”
The word “necessity” is somewhat misleading. Strictly speaking there is no necessity in the sense that the thing is inevitable or unavoidable. For if it were, then, there would be the legal defence that the accused’s act was not voluntary. In reality the position is that the person prefers to do such thing which he does rather than something else, which would be more unpleasant.
It has been often thought that if provisions run short during a voyage, the captain of the ship commits no larceny by breaking into the cargo to feed his crew. The old instance of drowning men and a plank large enough to support one only, and that of ship-wrecked persons in a boat unable to carry them all, are the standing illustrations of this principle.
In Commonwealth v. Homles} in which sailors threw passengers over board to lighten a boat, it was held that the sailors ought to have been thrown overboard just unless they were required to work the boat and that at all events the particular persons to be sacrificed ought to have been decided by ballot.
Stephen considers this view as over-refined. Self-sacrifice may or may not be a normal duty but it seems hard to make it a legal duty and it is impossible to state its limits or the principles on which they can be determined.