This is an indictment charging husband and wife with conspiring to commit an offense against the United States in violation of § 371 of Title 18 of the United States Code, 18 U.S.C.A. § 371, which was enacted by Congress on June 25, 1948, 62 S.Ct. 683, 701, in connection with § 545 of that Code, 18 U.S.C.A. § 545, id., 716, in that they sought illicitly to bring goods into the United States with intent to defraud it. On authority of controlling decisions of its Circuit, Dawson v. United States, 9 Cir., 10 F.2d 106, and Gros v. United States, 9 Cir., 138 F.2d 261, the District Court dismissed the indictment on the ground that it did not state an offense, to wit, a husband and wife are legally incapable of conspiring within the condemnation of § 371. The case came here on direct review of the order dismissing the indictment, 358 U.S. 944, 79 S.Ct. 352, 3 L.Ed.2d 351, under the Criminal Appeals Act of March 2, 1907, now 18 U.S.C. s 3731, 18 U.S.C.A. § 3731. The construction of § 371 by the Court of Appeals for the Ninth Circuit has been explicitly rejected by the Court of Appeals for the District of Columbia Circuit, Johnson v. United States, 81 U.S.App.D.C. 254, 157 F.2d 209, and by the Court of Appeals for the Fifth Circuit, Thompson v. United States, 227 F.2d 671, and Wright v. United States, 243 F.2d 569.
The question raised by these conflicting views is clear-cut and uncomplicated. The claim that husband and wife are outside the scope of an enactment of Congress in 1948, making it an offense for two persons to conspire, must be given short shrift once we heed the admonition of this Court that 'we free our minds from the notion that criminal statutes must be construed by some artificial and conventional rule,' United States v. Union Supply Co., 215 U.S. 50, 55, 30 S.Ct. 15, 16, 54 L.Ed. 87, and therefore do not allow ourselves to be obfuscated by medieval views regarding the legal status of woman and the common law's reflection of them. Considering that legitimate business enterprises between husband and wife have long been commonplaces in our time, it would enthrone an unreality into a rule of law to suggest that man and wife are legally incapable of engaging in illicit enterprises and therefore, forsooth, do not engage in them.
None of the considerations of policy touching the law's encouragement or di couragement of domestic felicities on the basis of which this Court determined appropriate rules for testimonial compulsion as between spouses, Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125, and Wyatt v. United States, 362 U.S. 525, 80 S.Ct. 901, are relevant to yielding to the claim that an unqualified interdiction by Congress against a conspiracy between two persons precludes a husband and wife from being two persons. Such an immunity to husband and wife as a pair of conspirators would have to attribute to Congress one of two assumptions: either that responsibility of husband and wife for joint participation in a criminal enterprise would make for marital disharmony, or that a wife must be presumed to act under the coercive influence of her husband and, therefore, cannot be a willing participant. The former assumption is unnourished by sense; the latter implies a view of American womanhood offensive to the ethos of our society.
The fact of the matter is that we are asked to write into law a doctrine that parrot-like has been repeated in decisions and texts from what was given its authoritative expression by Hawkins early in the eighteenth century. He wrote:
'It plainly appears from the Words of the Statute, That one Person alone cannot be guilty of Conspiracy within the Purport of it; from whence it follows, * * * That no such Prosecution is maintainable against a Husband and Wife only, because they are esteemed but as one Person in Law, and are presumed to have but one 'Will.' (Hawkins, Pleas of the Crown, 4th ed. 1762, Bk. I, chap. lxxii, Sect. 8, p. 192.)
The pronouncement of Hawkins apparently rests on a case in a Year Book of 38 Edward III, decided in 1365. The learning invoked for this ancient doctrine has been questioned by modern scholarship. See Williams, The Legal Unity of Husband and Wife, 10 Mod.L.Rev., 16 (1947); and cf. Winfield, The History of Conspiracy (1921), § 27, p. 64, and § 37, p. 88. But in any event the answer to Hawkins with his Year Book authority, as a basis for a decision by the Supreme Court of the United States in 1960 construing a statute enacted in 1948, was definitively made long ago by Mr. Justice Holmes: