Monday, 13 January 2020

Indictments in the Early 19th Century


This was originally going to be a bonus addendum to a previous article, but I decided it was overlong so promoted it to its own (then it got delayed because things). So, this can be seen as simply as bonus extra blog post.

Well, it was going to be a bonus, then it kept growing because I kept finding interesting things in Hale [0]...

Anyway, what was going to follow was a comparison between a modern indictment and an historical one. And it still is that, just now it also discusses why things were in the older, more prolix, indictments. Mostly because they are amazingly detailed.

Modern Times

In the modern criminal justice system, at least since the Indictments Act 1915 [1], indictments are quite short. For example, an indictment for murder might today (the Schedule to that Act being repealed by the Indictments (Procedure) Rules 1971 [2], itself being repealed by the Criminal Procedure (Amendment) Rules 2007 [3]) be as simple as

INDICTMENT  
IN THE CROWN COURT AT BORSETSHIRE 
THE QUEEN VS. A. NASTY CRIMINAL
charged as follows: 
STATEMENT OF OFFENCE 
Murder. 
PARTICULARS OF OFFENCE 
A. N. Criminal, on the 9th day of November 2019, murdered A. Poor Victim.
Pithy.

It wasn't always so. I happen to have a PDF first edition of Archbold (thanks Google Books!), and the old form of indictments was especially prolix. Apparently they were shortened somewhat during the 19th century before arriving at the highly terse form above in 1915.

Murder

I thought a sample would be best. This one will find on p. 210-11 of Archbold (1822) [4]

Middlesex to wit : 
The jurors for our Lord the King, upon their oath present, that J.S., late of the parish of B., in the county of M., labourer, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the third day of May, in the third year of the reign of our sovereign lord George the Fourth, with force and arms, at the parish aforesaid, in the county aforesaid, in and upon one J.N., in the peace of God and our said Lord the King then and there being, feloniously, wilfully, and of his malice aforethought, did make an assault ;  
and that the said J.S., with a certain knife, of the value of six pence, which he the said J.S. in his right hand then and there had and held, the said J.N., in and upon the left side of the belly, between the short ribs of him the said J.N., then and there feloniously, wilfully, and of his malice aforethought, did strike and thrust, giving to the said J.N. then and there, with the knife aforesaid, in and upon the said left side of the belly, between the short ribs of him the said J.N. one mortal wound, of the breadth of three inches, and of the depth of six inches ;  
of which said mortal wound, the said J.N., from the said third day of May, in the year aforesaid, until the fifteenth day of the same month of county aforesaid, did languish, and languishing did live ;  
on which said third day of May, in the year aforesaid, the said J.N., at the parish aforesaid, in the county aforesaid, of the said mortal wound died : 
and so the jurors aforesaid, upon their oath aforesaid, do say, that the said J.S. the said J.N., in manner and form aforesaid, feloniously, wilfully, and of his malice aforethought, did kill and murder: against the peace of our lord the King, his Crown and dignity.
I've broken this into paragraphs to aid our own reading of it, but in its day this would have been one continuous block of text.

Even a quick skim indicates two things: one, it is quite florid; two, it explains the entire factual basis of the crime, from who is who, through to how the mortal wound was inflicted and by what implement, through to how death occurred. So it's not all noise. There is a fuller explanation on p. 211 et seq. of Archbold, but here are some interesting bits, in my opinion.
not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil
It is important to remember that it was not until the latter half of the nineteenth century that religion in England came to be even somewhat detached from the state; so this almost mediaeval invocation needs to be seen in that light. A similar practice seems to have prevailed in the State of New York as late as 1804, as this indictment of Aaron Burr attests to, and the same seems to have been the case in the State of New Jersey. A fuller exposition on the role of the 'devil' in crimes in England until the mid-nineteenth century can be seen in this insightful article by Owen Davies, which seems to imply that this invocation was part an attempt at mitigation (no person not so possessed could do such a thing), and partly rooted in a desire to personify the perceived evil. But I'm not an anthropologist, so that's something for other people to be vexed by.
late of the parish of B., in the county of M. [...] at the parish aforesaid, in the county aforesaid
The rules on venue, which I alluded to in the previous article, would strongly imply that "M." here is standing for Middlesex, given that it is the Middlesex Grand Jury preferring the bill of indictment.
in the peace of God and our said Lord the King
This simple looking phrase is surprisingly important. Archbold notes that proof of the King's peace is not required, but that killing an alien in time of conflict might well reduce the charge to manslaughter (or even eliminate it all together). But, and I quote directly "it is no matter either of excuse or justification, that the deceased was a Jew, an outlaw, or one attainted of felony or præmunire" [5]. In other words, killings in time of war are lawful, but vigilante action is not.
with a certain knife
Archbold notes that it doesn't matter if it was not exactly this knife, any cutting implement will do, but that indicting for a knife then trying to prove death by poison will not work (bludgeoning will, however, and I never promised any of this made sense).
 of the value of six pence
You would be correct in wondering what the value of the knife has to do with it all, and Archbold agrees with your confusion. He posits that it dates back to the rule that a murder weapon was forfeit "as a deodand" to the King, and that if it went AWOL the local population would have to make good its value. He cites as authority for this point page 185 of volume 2 of Hale's Historia Placitorum Coronæ, where one finds the same text provided without any further authority. Hale does take the time to note that including the price "seems not to be essential to the indictment" [6]. Glad we cleared that up...
in his right hand
Archbold says it is necessary to allege this but not prove it, but I note that what he cites for authority in Hale (assuming I'm groking the Latin correctly) hints that indictments have been quashed for errors here.
 in and upon the left side of the belly, between the short ribs of him
Here I must say I find both Archbold and Hale hopelessly confusing. What I take from their comments is that it was essential to allege with precision what the mortal injury was, but that it was not quite essential to be correct about it. I.e. saying "an arm" would be a bad indictment, but saying "left arm" when it was actually the "right leg" might be ok.

It is important to remember that before the rules on indictments were reformed, several centuries of uncodified precedents had simply accreted, which accounts for a lot of this confusion and general oddness.
feloniously, wilfully, and of his malice aforethought
Nothing seems to turn on 'feloniously' (but see Petit Treason below), but 'his malice aforethought' is the crucial ingredient in the offence of murder and remains so to this day. An indictment without those three words would in effect be an indictment for Common Law manslaughter [7], and likewise a defendant who proved a lack of malice would be acquitted of murder (but not necessarily manslaughter). This remains the case to this day.  I suppose 'wilfully' is necessary because a felon non compos mentis would be found not guilty but insane.
one mortal wound of the breadth of three inches, and of the depth of six inches
Both Archbold and Hale agree that the size of the wound must be stated (although not necessarily proved), except in the case of an arm (or one assumes leg?) being cut off. [8] The wound must obviously be mortal, since otherwise this is just a nasty assault (and in the same way as proving that J.N. was not actually J.N., it would be a defence to prove that J.N. was J.N. but that he remained very much alive).
did languish, and languishing did live
The indictment now, rather morbidly, sets out how long it took the victim to die. But this is important since if the defence can prove that mortality occurred more than a year and a day after the 'mortal' wound was inflicted, the law will irrebutably assume no causation. The 'year and a day' rule was only abolished in 1996 [9], but was a necessary expedient in earlier times due to the reduced level of medical knowledge and understanding.
against the peace of our lord the King, his Crown and dignity
This was at the time the traditional ending of many indictments (specifically for the Common Law offences), and echoes the point about the King's peace above, and reiterates that as the fount of justice all offences are ultimately against the King and His peace.

That turned out to take longer to explain that I expected. Anyway, on to Treason.

Petit Treason

Petit Treason was the killing of one's lawful superior. The only example given in Archbold is of a wife killing her husband (the nineteenth century was somewhat less enlightened, after all the concept of a femme covert had yet to be abolished, although Petit Treason would be assimilated to murder in 1828). The indictment looks the same, with some verbiage about J.S. being J.N.'s (wait that doesn't make sense... run with it!) wife and the addition of the word 'tratoriously' into 'feloniously, wilfully, and of her malice aforethought'.

High Treason

Specifically 'compassing or imagining the death of the King', contrary to 25 Edw. III St. 5. cap. 2, aka the Treason Act 1351 (still in force today, by the way).

Middlesex to wit: 
The jurors for our Lord the King upon their oath present, that J.S. late of the parish of B. in the county of M., labourer, a subject of our said lord the King then and there being, not regarding the duty of his allegiance, nor having the fear of God in his heart, but being moved and seduced by the instigation of the devil, as a false traitor against our said lord the King, and wholly withdrawing the allegiance, of our said lord the King, should, and of right ought to bear towards our said lord the King, 
on the third day of May, in the third year of the reign of our sovereign Lord George the fourth, and on divers other days as well before as after, with force and arms, at the parish aforesaid in the county aforesaid, maliciously and traitorously, together with divers other false traitors to the jurors aforesaid unknown, did compass, imagine, devise, and intend to depose our said Lord the King from the royal state, title, power, and government of this realm, and from the style, honour, and kingly name of the Imperial Crown thereof, and to bring and put our said Lord the King to death : 
and the said treasonable compassing, imagination, device, and intention, then and there maliciously and traitorously did express, utter, declare, and evince, by divers overt acts and deeds hereinafter mentioned, that is to say : in order to FULFIL, PERFECT, AND BRING TO EFFECT his most evil and wicked treason, and treasonable compassing, imagination, device, and intention aforesaid, he the said J.S., as such false traitor as aforesaid afterwards, to wit, on the said third day of May in the year aforesaid, and on divers other days as well before as after, with force and arms, at the parish aforesaid in the county aforesaid, maliciously and traitorously did conspire, consult, consent, and agree with one A B., C.D., and divers other false traitors to the jurors aforesaid unknown, to raise, levy, and make insurrection, rebellion, and war within this kingdom, against our said lord the King : 
and further to FULFIL, PERFECT, AND BRING TO EFFECT his most evil and wicked treason, and treasonable compassing, imagination, device, and intention aforesaid, he the said J.S., as such false traitor as aforesaid, afterwards, to wit, 
[&c. &c. so proceeding to state other overt acts, in the same manner ; and then conclude the count thus:] 
in contempt of our said lord the King and his laws, to the evil example of all others in the like case offending, contrary to the duty of the allegiance of him the said J.S., against the form of the statute in such case made and provided, and against the peace of our lord the King, his crown and dignity. 
[capitals as original] 
At a first glance this is structurally similar to the indictment for murder, and once a lot of the prolix verbiage is removed one can fit Sir Roger Casement's indictment to it as well. Let's look at some differences.
a subject of our said lord the King then and there being, not regarding the duty of his allegiance,
Those who know about the trial of William Joyce ("Lord Haw Haw") will appreciate the important of this. It has been held that a subject always owes allegiance, hence if one is one, it would be stated, but that an alien would only allegiance under certain circumstances [10]. This does disclose an essential element of the crime of treason, however, viz. the failure of a subject or alien [11] owing allegiance to do his right by his King as in duty bound, cf.  this next bit
as a false traitor against our said lord the King, and wholly withdrawing the allegiance, of our said lord the King, should, and of right ought to bear towards our said lord the King
did compass, imagine, devise, and intend to depose our said lord the King from the royal state, title, power, and government of this realm, and from the style, honour, and kingly name of the imperial crown thereof, and to bring and put our said lord the King to death
This is the key ingredient of the offence (well, offences, but they are going to be functionally linked in practice) from the 1351 Act. Specifically, the Act provides that it be Treason if "a Man doth compass or imagine the Death of our Lord the King". Now, this let's me bring up one of my favourite asides about the law of treason. The astute observer will notice that while the 1351 Act makes criminal the conspiracy (for want of a better word, it could just be one man alone), the actual act of killing a monarch itself is a bit ambiguous. This presented a small quandary when it came to try the Regicides after the restoration of Charles II: could the actual death of the King be one of the overt acts (more on those in a minute). At page 8 of his Reports, Sir John Kelyng records that it was decided that it could be, and that it would be supported by further overt acts making out the overall charge,

A more interesting quandary concerns accidental injuries (or killings) of Kings. Hale [12] records without authority that an accidental injury is not compassing the death of the King, and then cites the supposed case of Walter Tirrel [12B] (sic. though the conventional spelling today seems to be Tirel) who may, or may not, depending on who you ask have accidentally shot William II with an arrow.

I suspect this next bit, viz. the part ending
to raise, levy, and make insurrection, rebellion, and war within this kingdom, against our said lord the King
would be unnecessary unless a charge of High Treason for both compassing death of the King and also waging war against Him in the Realm was being brought. That being said, Hale at vol. 1 p. 123 notes that levying war, etc., because one doing so can not know that the King will not be harmed is ipso facto an overt act compassing or imagining His death. Although how one squares this with the rule expressed by Archbold that evidence must be brought to prove the overt acts not the principle treason itself I'm unclear on. And luckily it is not something I will ever have cause to decide.

Hale [13] notes also that it is compassing the death of the King to imprison him until he changes his counsels, providing such restraint or imprisonment is done forcibly. This follows similar logic that once forcibly restrained or detained the safety of the King could no longer be guaranteed. This would seem to be still good law (or at least I can't find anything to say it isn't)

Now, the part in square brackets was important (and we saw this in Sir Roger Casement's indictment too, where I lazily omitted it),
[&c. &c. so proceeding to state other overt acts, in the same manner ; and then conclude the count thus:]
It has been held necessary (we ignore the two-witnesses rule since, for the form of an indictment, it changes nothing) to prove at least one, but not more than one, 'overt act' relating to the principle treason. These would be listed, in some detail, here.
in contempt of our said lord the King and his laws
I think this is now just laying things on a bit, as is
to the evil example of all others in the like case offending
We then see, in a roundabout way, the 1351 Act cited
  against the form of the statute in such case made and provided
and the customary ending clause
  against the peace of our Lord the King, his crown and dignity

So, just as for murder, the indictment for high treason covers all the parts of the case — it is not merely a quick summary.

Colophon

Archbold, heavily quoted here, is obviously in the Public Domain.

[0] Historia Placitorum Coronæ ("History of the Pleas of the Crown") by Sir Matthew Hale SL, a Judge of the Commons Pleas; then Lord Chief Baron of the Exchequer; then Lord Chief Justice of the King's Bench; so as well as writing a seminal treatise on criminal pleading, he also served in all three Common Law courts. Footnote zero because I added this last when I noticed I had forgotten it. Historia Placitorum Coronæ is hereafter Hale.
[1] 5 & 6 Geo. V. cap. 90
[2] SI 1971/<something>, I forget what and it isn't on legislation.gov.uk
[3] SI 2007/699 (L.3), but nothing really turns on all this
[4] "A Summary of the Law Relative to Pleading and Evidence in Criminal Cases; with precedents of indictments, &c., and the evidence necessary to support them." by John Frederick Archbold, still updated and published today as Archbold Criminal Pleading, Evidence and Practice; hereafter Archbold (all references to the first edition)
[5] Archbold, p. 211
[6] Hale vol. 2, p. 185 (I know the legal convention is to cite this as 2 Hale 185, but that makes it look too much like a New Testament epistle, so let's not do that)
[7] Not manslaughter under the Act 1 Jac. I. cap. 8; which if you know what I'm on about you will understand.
[8] Hale at v. 2 p. 186 cites 'Haydon's Case' (not Heydon's case, 3 Co. Rep. 7A, that's something quite else) as authority for this oddly specific point, as does Blackstone in a footnote on about vol. 2 p. 149 of Commentaries; both referring to 5 Co. Rep. 42, which I would check in Coke but even I get bored of this eventually. (Co. Rep. being Coke's Reports, which unlike Hale I've left in the conventional citation form due to laziness)
[9] Law Reform (Year and a Day Rule) Act 1996
[10] See Hale, vol. 1, pp. 96-100ish
[11] I note a curious reference to how this concept could work at p. 100 of Hale, where he cites 40 Ass. 25; which I take to be a reference to something in the Liber Assissarum. Hints/links/copies welcome!
[12] Hale, vol. 1, p. 109
[12B] I wonder if he is a relation to ever brilliant Sophie?
[13] ibid., citing Blackstone's Commentaries, vol. 4, p. 79

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