English Interrogation Law from 1674-1848
London’s Great Fire of 1666 began in the shop of Charles II’s baker on Pudding Lane.1 By the time it died out three days later, it had burned 436 acres, 15 of 26 wards, 13,200 homes, 400 streets, 89 churches, and many schools, hospitals, libraries, and other public structures.2 A monument marks the spot where the fire stopped. The inscription notes that the fire began at Pudding Lane and ended at Pye Corner, evidence, according to a “non-conformist preacher,” that the fire manifested God’s wrath on London for the sin of gluttony.3
The Great Fire destroyed London’s medieval courthouse.4 A replacement, Justice Hall, was completed in 1674 but quickly became known by the street on which it was located. Old Bailey Street followed the lines of the original fortified wall that was called a “bailey.” The three-story, Italian-style brick building was conveniently located close to Newgate Prison, still standing (and polluting the air) five centuries after its construction. In front of the courthouse was the Sessions House Yard, where litigants, witnesses, and court personnel could gather. The area inside the wall, where prisoners awaited trial, was called the bail dock. It was separated from the street by a brick wall with spikes on top to keep prisoners from escaping.
The ground floor had no walls, allowing fresh air to circulate and decrease the risk that “gaol fever”—typhus—would spread from the prisoners to others in the courtroom.5 While that was probably a good idea, imagine the Old Bailey in the winter months when rain, cold, fog, sooty air, and the fetid smell of Newgate Prison would attend the proceedings. The accused stood at “the bar” facing the witness box; the jurors were seated on both sides of the accused. The judges were on the other side of the courtroom.
The great value of the Old Bailey to historians is that, from the beginning, records were kept of the trials. The earlier records are sparse, but a sparse record is better than none.
Langbein claims that the English rule about involuntary confessions “pops out” in July 1740.6 John Beattie similarly concluded from his review of the Surrey records that there was not “much concern being expressed in court before the 1730s about the way that confessions had been obtained.”7 Both claims, of course, are about out-of-court confessions rather than confessions to judges that were guilty pleas. Whether there was “much” or “not much” concern is a question of semantics, but we found prior to 1740 several expressions of concern that confessions should not be obtained by promises or from fear.
We discussed in chapter 2 the 1295 argument that prison conditions compelled the defendant to confess falsely. The earliest confession case we found in the Old Bailey records—from July 11,1677—was sparse indeed. We reprint it here in full:
There succeeded a long and remarkable Tryal of a young Girl for murdering her own Mother by poyson. The Prosecution was grounded wholly upon her own voluntary Confession, and several worthy persons proved that she had acknowledged it to them; and also that she for several times had endeavoured to poyson a Lady with whom she lived, though through mercy she had recovered and was in health again: but that not immediately concerning the present Case, the Girl denying the poisoning of her Mother now at the Bar, as likewise for that it did not appear that her Mother was at all poisoned, or any suspitio [sic] raised thereon, she was brought in not Guilty.8
Though the key to the case was that the crown failed to prove that the defendant’s mother was poisoned, the clerk thought it important to note that the defendant’s confession was “voluntary” and had been repeated to “several worthy persons.” This probably signals an awareness that confessions are less valuable as evidence if involuntary. We found another murder case from 1677 where the clerk recorded that the confession was voluntary.9 These cases suggest that judicial concern about out-of-court confessions arose many years earlier than Langbein and Beattie conclude.
A modern form of a coercion argument appears in 1686. Ames Spencer, a maid, was charged with grand larceny for stealing a guinea from her master.10 The master initially blamed his wife, and she then blamed the maid. “[C] arrying her before the Justice [of the peace], she confessed she had it, and took it to satisfie a Man whose debt she had run during her being out of Service.” But she denied the theft in court, and because her “Confession” to the justice was “look’d upon as the effects of Fear, she was Acquitted.” The sketchy report does not indicate what caused her fear, but the concern with “the effects of Fear” on confessions is plain.
Concern with confessions induced by fear appears in a 1688 shoplifting case. A store owner seized a suspect who had been “hankering around his Shop the Night the Robbery was committed.”11 When he confronted her with his suspicions, she was “not … confident enough … to deny the Fact at that time, though in Court, she, as well as her Companion, disowned it.” The report concludes: “The Jury weighing the Circumstance, that the first Confession might proceed from Fear, they Acquitted them of the Felony.”
We found four other cases from the period 1688-1712 involving claims that the confession should not count against the defendant. Though the defendant lost each case, the existence of the claim shows that the law was beginning to recognize its validity. In 1688, an apprentice was accused of stealing from his master.12 When his confession was introduced in court he said, “That what he had confessed was through Fear and Constraint, by reason his Master had struck him, and dealt roughly with him, to extort an Acknowledgment.” But other witnesses testified that his confession appeared to be “rather frankly, than by compulsion.”
A defendant accused of counterfeiting in 1694 used a “fear” claim—that “what he acknowledged” to the justice of the peace “was out of fear.”13 The report concludes that “all this was no Evidence for him,” and he was convicted of high treason and sentenced to death. A servant accused of stealing a silver cup disavowed her confession to the magistrate because “she did not know what it was she said, for that at that time she was in great fear.”14 The jury convicted her. A defendant accused of stealing a horse confessed it before the justice of the peace. At trial, there was evidence that “he had been a very honest Man, and he said he was frightened into a Confession.” But the jury did not “believe him innocent,” and he was sentenced to death.15
These cases signal that English law was beginning to turn. We remind the reader of the distinction between “mere confessions,” those made outside of trial and thus without any formal consequence, and those made to a judge or coroner. The Old Bailey cases we have seen, unlike the earlier Year Book cases, involve “mere confessions.” Despite the indications in the Old Bailey cases from as early as 1676 that “mere confessions” produced by fear or threats should somehow be discounted, we see no evidence of any concern about these confessions in the leading treatise of the early part of the eighteenth century, William Hawkins’s Treatise of the Pleas of the Crown. As we saw in chapter 2, the 1721 edition of his treatise provided that confessions made out of court, not under oath, including those taken by justices of the peace are “allowed to be given in Evidence against the Party confessing, but not against others.”16
Hawkins’s Chapter 46 treatment of “mere confessions” can be usefully compared to his more elaborate statement about confessions given in court. We also see here the proportionality principle at work. After first noting that a confession to a crime in court “carries with it so strong a Presumption of guilt” that it “estops” a not guilty plea, Chapter 31 provides that in capital cases courts should be “very tender in going upon Presumptions.” Thus,
where a Person upon his Arraignment actually confesses himself Guilty, or unadvisedly discloses the Special Manner of the Fact, supposing that it does not amount to Felony, where it doth, yet the Judges, upon probable Circumstances, that such Confession may proceed from Fear, Menace, or Duress, or from Weakness or Ignorance, may refuse to record such Confession, and suffer the Party to plead Not Guilty.17
To modern eyes, it is positively perverse that confessions made in court were subject to concerns about fear, menace, duress, weakness, or ignorance, but Hawkins expressed no similar concerns about confessions made out of court. Obviously, coercion would be easier to hide if conducted in private. For an explanation, recall the 1348 case in chapter 2 where Justice William de Thorp permitted the defendant to withdraw his confession so that the jury could decide his fate.18 The confession made to the court was, unless excused by grace, a final conviction. The confession made to the justice of the peace or the victim of the theft, on the other hand, was merely a piece of evidence.
As evidence law became more sophisticated, the distinction between confession as a guilty plea and confession as evidence became more difficult to maintain. Indeed, an awareness of the effect of fear on out-of-court confessions appears in Matthew Hale’s The History of the Pleas of the Crown, published in 1736. The examination of the prisoner required by the Marian statutes was often a critical part of the crown’s case.19 Hale cautions justices of the peace to testify that the prisoner confessed to them “freely and without any menace, or undue terror imposed upon him.”20 That Hales History of the Pleas of the Crown was not published until fifty years after his death in 1676 raises a nice question about when that passage was written. The passage says that Hale saw cases where acquittals were obtained by defendants disavowing their confessions, suggesting that he wrote it. The editor, Sollom Emlyn, claims on the title page that the treatise was “published from his Lordship’s Original Manuscript. … To which is added A Table of Principal Matters.”21 The implication is that Emlyn added nothing of substance. The earliest Old Bailey case we found questioning “mere confessions” was in 1677, but there is no reason to think that it was the first one. Hale could have seen, from his time as a judge, acquittals resulting from challenges to confessions made to justices of the peace.
Of course, it is also possible that the passage about unfree confessions was added by Emlyn before publication in 1736. That seems unlikely to us because Emlyn used footnotes to update Hale’s work. For example, one note states that the practice described in the text had been changed by statute.22 Elsewhere, a note states, “These words are not in the MS but they or others to the like effect are manifestly wanted to supply the sense.”23 An editor who was this scrupulous about small changes was unlikely to add entire sections of text without acknowledging that he was doing so.24 If Hale wrote the passage urging magistrates to testify that the prisoner “freely confessed,” then the concern about voluntariness was manifest more than half a century earlier than Langbein and Beattie claim.
In any event, the publication of Hale’s History of the Pleas of the Crown in 1736 gave voice to the concerns we saw in the scattered Old Bailey cases about unfree confessions made out of court. Hawkins seemed to have sensed the dissonance between his in-court and out-of-court confession principles,25 though the distinction persisted in the subsequent editions of his treatise until the seventh, published in 1786. To say that unfree out-of-court confessions are suspect does not, however, dictate what should be done if a confession is found to be unfree. The concern in Hale’s History of the Pleas of the Crown about unfree confessions does not appear to entail a rule of suppression. The passage concludes, “for I have often known the prisoner disown his confession upon examination, and hath sometimes been acquitted against such his confession.”26 To be acquitted “against” a confession implies that the jury heard and rejected the confession because of doubts about its credibility.
In all the cases we saw up to 1740, it appears that the jury heard the confession that was challenged as unfree and then decided whether, or how much, to “discount” it. In the 1600 case where the prosecutor assured the court that the defendants’ confessions “came voluntarily … no man being racked or tormented,” the prosecutor said that the confessions “would be credited in the world.”27 The implication is that the jury should credit the confession. In the 1688 case of Smith and Simmons, the reporter wrote, “The Jury weighing the Circumstances, that the first Confession might proceed from Fear, they Acquitted them of the Felony.”28 This report is clear that the jury heard the confession and then discounted it because it “proceed [ed] from Fear.” One might wonder how the reporter would know what influenced the jury. Most likely, the answer is that the reporter simply drew an inference from the testimony and the verdict.29
But the remedy for a confession induced by fear would change, beginning with the 1740 case Tobias and Rachael Isaacs;30 the case Langbein cites as the beginning of the voluntariness rule. Rachel Isaacs and her husband were charged with theft from her master, who testified that “when I taxed her with taking [his goods], she deny’d it with Earnestness for 2 Hours, but upon my promising to be a Friend to her, and that I would not hurt [her], she confessed.” The case report continued:
The Prosecutor was not allowed to proceed; and another Witness afterwards offering to give an Account of what she had confessed to him, was likewise stopped; because a Confession obtained on a Promise of Friendship, or by false Insinuations … ought not to be given in Evidence against a Prisoner.
On the substance, the Isaacs court held it unfair to obtain a confession from a servant by a promise of leniency. The master told her that he was her friend and he would not hurt her, and she presumably relied on that promise. To hold her confession unfree is thus consistent with the seventeenth-century cases we saw earlier. But the radical change in Isaacs is the remedy. Rather than advising a jury to consider the circumstances in which the confession was made, or simply trusting the jury’s common sense, Tobias and Isaacs held that a confession obtained by a promise of friendship “ought not to be given in Evidence against” the defendant. This states a rule of suppression. The jury could not hear the offending confession.
A year later, in the Trial of Charles White, the defense lawyer objected to the admission of the magistrate’s pretrial examination on the ground that the crown had not demonstrated that the defendant’s confession was “voluntarily made.”31 If not voluntarily made, the argument went, “it ought not to be read.” Not reading the confession, of course, is a form of suppression. The judge ruled the objection improper, because it was not timely made, but conceded that otherwise “it would have been proper for us to enquire by what means the confession was procured.”
For much of the period prior to 1740, judges “appear to have left it to the jury to assign what weight they would to confessions,” but Tobias and Isaacs ushered in an era of instability in the English approach to confessions prompted by threats or promises.32 Some judges followed the old rule and made no comment on the confession. Some judges followed Tobias and Isaacs and would not let the jury hear the confession. A third approach was to tell the jury that it should “consider” when weighing the confession whether the defendant had “any promises of Indulgence before he confessed.”33 In a 1742 case where that question was raised, but not answered (at least in the Old Bailey records), the jury acquitted.34
As early as 1755, the justice of the peace manuals began to require that the statement to the justice be voluntary—a synonym for a confession freely given—and to imply a rule of suppression if it was not voluntary. The first edition of Richard Burn’s 1755 manual contained quite detailed prescriptions about taking the examination mandated by the Marian statutes. One sentence provided, “Which examination, being voluntary, and sworn by the justice or his clerk to be truly taken, may be given in evidence against the party confessing, but not against others.”35 Burn cites Hawkins and Hale for this proposition, but neither cited passage is good authority. The Hawkins passage in the edition that was current in 1755 (the third, published in 1739) does not use the term “voluntary” but merely repeats the rule from the 1721 edition that out-of-court confessions are admissible only against the maker.36
The passage that Burn cited from Hales History of the Pleas of the Crown requires “the justice or his clerk” to swear to the accuracy of the statement and to certify it to the criminal court to be “given in evidence against the offender/’ but nowhere requires the statement to be voluntary.37 We saw earlier that a different section in Hale’s History of the Pleas of the Crown (indeed, in a different volume) does caution the magistrate to testify that the statement to him was made “freely and without any menace, or undue terror.”38 That advice is roughly like cautioning the magistrate to testify that the statement was voluntary, and it is odd that Burn does not cite this passage in Hale.
Burn probably drew the rule that confessions to the justice of the peace had to be voluntary from Tobias and Rachel Isaacs and other Old Bailey cases that we described. He then threw in an oddball citation of Hawkins and Hale—then, as now, writers probably figured that they could not go wrong citing Hawkins or Hale. A rule of suppression is probably entailed in Burn’s notion that the voluntary confession of the defendant “may be given in evidence.”39 A contrary rule seems likely when the confession was not voluntary. The Burn approach, both to remedy and to voluntariness of out-of-court confessions, is a radical change from the 1721 Hawkins rule that permitted all out-of-court confessions to be admitted against the maker, but the change happened without comment that we could find.
As for the reason that English law developed along the Burn line, Lord Chief Baron Gilbert grounded the rule in the concern with reliability. His treatise on evidence, published in 1756, includes a section dealing with interested witnesses. That section notes that the “voluntary Confession of the Party in Interest is reckoned the best Evidence” because it is against the interest of the speaker.40 Gilbert goes on to caution that “this Confession must be voluntary and without Compulsion.”41 In this, he writes, “we do certainly follow the Law of Nature, which commands every Man to endeavor his own Preservation; and therefore Pain and Force may compel Men to confess what is not the Truth of Facts.” As to remedy, Gilbert is unclear. He merely says that “such extorted Confessions are not to be depended on.” That is consistent either with not letting the jury hear the coerced confession or the judge warning the jury not to depend too heavily on the confession.
Langbein argues that, by the 1760s, departures from the rule of suppression “cease to be reported” because “practice had become law.”42 It is not as clear to us as it is to Langbein that this was the settled rule. Michael Foster’s 1762 Crown Cases mentions no such rule, though he does express a concern about the reliability of out-of-court confessions in treason cases. In a passage that would influence Black-stone, Foster noted that in treason cases, “hasty Confessions made to Persons having no Authority to examine, are the Weakest and most Suspicious of All Evidence. Proof may be too easily procured, Words are often Mis-reported, whether through Ignorance, Inattention, or Malice, it mattereth not the Defendant.”43 To call confessions weak and suspicious evidence, however, is more consistent with admitting the confession, and cautioning the jury, than suppressing it.
Langbein’s first examples fail to make the point that suppression was the rule by the 1760s because each simply notes that the confession was prompted by a promise or a threat and then reports that the defendant was acquitted.44 It is entirely possible that the jury heard the confession and decided that the defendant should not be convicted based on that kind of evidence. To take one example, a wigmaker in 1764 accused one of his employees, Benjamin March, of stealing four guineas.45 March confessed after his employer said, “deliver [the guineas] up, and no creature shall know of it.” The jury acquitted March. The case report contains no language indicating that the judge refused to let the jury hear the confession. Langbein attempts to finesse the lack of evidence of suppression by noting that there was no doubt that the defendant was guilty and, therefore, “the acquittal could not have resulted from a rule of weight or credit.”46
But this reading imposes modern logic on an eighteenth-century jury and also assumes that reliability was the only value served by the early English law of confessions. As we have seen, principles of autonomy, fairness, and proportionality also manifest themselves in the evolving voluntariness rule. The jury could easily have thought March guilty but that it was unfair for the employer to break his promise. Indeed, the March case is a particularly weak piece of evidence for Langbein’s argument because, as he notes himself, the employer did not want to prosecute and begged the justice of the peace not to send the case to trial.47 All of this the jury heard. The theft of four guineas was a capital offense. It is quite likely that the jury heard the confession but decided to enforce the promise that the employer made to March rather than send him to the gallows.
Langbein’s 1769 example, Balfe and Kirk, hits the nail on the head. Justice Gould stated from the bench that “when evidence is giving to the court upon the confession of the prisoner, the rule of law is this, That no confession ought to be produced but what is spontaneous, and not such that the party is drawn into by collusion.”48 With a rhetorical flourish, Gould concluded that “it is against the very genius of the law of England [for such confession] to be given in evidence.” To be sure, the remark about remedy is dicta because Justice Gould admitted the defendant’s statement in response to a question that invited the defendant “to boast of more than he had done.” The defense argued that the question “was a natural encouragement” for him to give an exaggerated and thus somewhat untrue confession. Justice Gould rejected the argument, but defense counsel’s willingness to object to such slight encouragement shows how quickly English law was evolving on this point. Not quite twenty years later, Hawkins’s treatise would condemn confessions motivated “by the flattery of hope, or by the impressions of fear, however slightly the emotions may be implanted.”49 Balfe and Kirk demonstrate that this notion was already bubbling up from the defense bar in 1769.
But Balfe and Kirk hardly settled the English law of confessions. Indeed, Sir William Blackstone expressed no concern about confessions in the first seven editions of his monumental treatise, through 1775, other than referencing the statutory requirement that confessions to treason had to be made willingly and without violence. The seventh edition appeared six years after Justice Gould’s bold pronouncement in Balfe and Kirk that no confession should be admissible unless it was spontaneous. Balfe and Kirk had probably not come to Blackstone’s attention because it was not reported by Thomas Leach in his Cases in Crown Law.
In Blackstone’s 1778 edition, the last that he prepared personally, an insertion in the section about treason expressed profound skepticism about confessions in general. Importantly, while his 1778 edition tracked Foster’s 1762 language, Blackstone broadened the concern beyond treason cases:
In the construction of [the treason] act it hath been holden, that a confession of the prisoner, taken out of court, before a magistrate or person having competent authority to take it, and proved by two witnesses, is sufficient to convict him of treason. But hasty unguarded confessions, made to persons having no such authority, ought not to be admitted as evidence under this statute. And indeed, even in cases of felony at the common law, they are the weakest and most suspicious of all testimony; ever liable to be obtained by artifice, false hopes, promises of favour, or menaces; seldom remembered accurately, or reported with due precision; and incapable in their nature of being disproved by other negative evidence.50
Something seems to have happened between the seventh and eighth editions that caught Blackstone’s attention, but he cites no authority. That delicious mystery is beyond the scope of our work. The important point is that by 1778, the most widely read English treatise writer had officially condemned confessions as “the weakest and most suspicious of all testimony.” To be sure, Blackstone’s 1778 expression is unclear whether the remedy is one of suppression or merely a suggestion that judges warn juries about its weakness.
The law on the suppression point was, however, beginning to settle by 1783. In Rex v. Thompson, the officer told the suspect that he would take him before a magistrate “unless you give me a more satisfactory account” of the events.51 Even though the judges conceded that the official’s statement “scarcely amounts to a threat,” it was nonetheless a “strong invitation to him to confess.” The court noted that it “is almost impossible to be too careful upon this subject” because “[t]he prisoner was hardly a free agent at the time” he responded to the official’s statement. The opinion cautioned that “[t]oo great a chastity cannot be preserved on this subject.” The confession “ought not to be received.” Thompson is clear that a slight threat is sufficient to render a confession objectionable and that the proper remedy is suppression. Leach did include Thompson in Cases in Crown Law, though not until the 1800 edition.
In 1784, Justice Gould, the author of Balfe and Kirk, followed Thompson and ruled “that the slightest hopes of mercy held out to a prisoner to induce him to disclose that fact [of his guilt], was sufficient to invalidate a confession.”52 Three years later, Thomas Leach added a paragraph to the 1787 edition of Hawkins’s Treatise of the Pleas of the Crown (Hawkins died in 1746 but his treatise lived on) that tracked Gould’s “slightest hope” formulation and, like Thompson, made plain that the proper remedy was suppression:
The human mind, under the pressure of calamity is easily seduced, and is liable, in the alarm of danger, to acknowledge indiscriminately a falsehood or a truth, as different agitations may prevail. A confession, therefore, whether made upon an official examination or in discourse with private persons, which is obtained from a defendant, either by the flattery of hope, or by the impressions of fear, however slightly the emotions may be implanted, is not admissible evidence; for the law will not suffer a prisoner to be made the deluded instrument of his own conviction.53
Leach’s language tracks language in The Kingv. Warickshall, an Old Bailey case four years earlier where the court said that “a confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape when it is to be considered as the evidence of guilt, that no credit ought to be given to it.”54 It is not surprising that Leach drew from Warickshall. We know that he had a copy of the manuscript of the case because he included it in the first edition of his Cases in Crown Law in 1789.55
The law of confessions was now settled in a very different mold than a half-century earlier. In 1721, Hawkins stated that all out-of-court confessions were “allowed to be given in Evidence against the Party confessing, but not against others.” In 1787, Leach stated a rule of suppression in the Hawkins treatise based on slight influences that might cause hope or fear. We will refer to this as the Hawkins-Leach dictum. This is perhaps unfair to Blackstone, who articulated a similar skeptical view nine years earlier, or even to Staundford and Foster. But Blackstone and Leach were the first two treatise writers to make clear that skepticism about confessions applied to all cases of felony, and the Leach statement of skepticism is more profound than Blackstone’s. The latter speaks generally of confessions being weak and suspicious while the former emphasizes that the slightest influence is too much. Moreover, the metaphor of a confessing suspect being made the “deluded instrument of his own conviction” is irresistible. So Hawkins-Leach dictum it is. And this is perhaps unfair to Leach, who actually wrote the words, but we’ll stop with the attempt to achieve perfect fairness.
And what was happening on the Continent at this time? As of the date Rex v. Thompson said that “[t]oo great a chastity cannot be preserved” when deciding whether a confession is improperly influenced, judicial torture was still being used in Belgium—it would not be abolished until France conquered Belgium in 1794.56 Judicial torture had been abolished in France, but only three years before Thompson. It had been abolished in Austria in 1776, and the last judicial torture in Germany was authorized in 1752.
The Western world was moving away from using confessions produced by coercion pretty much in tandem, although the English were pressing the point the most forcefully. It is no exaggeration to say that the English confessions world turned upside down between 1721 and 1787. What caused this radical shift in the law of confessions?
Wigmore’s explanation for the skeptical attitude of English judges, in part, was based on their view of the class structure. Confessions might typically result from “a subordination, a submission, half-respectful and half-stupid, on the part of the ‘lower classes’ toward those in authority.”57 John Langbein rejects this explanation because “[s]ocial stratification was centuries old” when the volun-tariness rule appears “and the further back the more striking.”58 Langbein argues that the exquisite concern with voluntariness “was grounded in precisely those concerns about the potential unreliability of prosecution evidence that had motivated” other changes in English criminal procedure of the period, including the decision to permit counsel to represent felony defendants at trial.59
Wigmore is closer to the mark than Langbein. Though Langbein is right that English criminal procedure was moving toward a greater emphasis on reliability, the extent of the shift in confessions law from Hawkins in 1721 to the skepticism expressed by Blackstone in 1778 and Thomas Leach in 1787 simply cannot be explained by reliability concerns. By the 1800s, English courts were suppressing confessions made when suspects were encouraged to tell the truth or were cautioned that they did not have to answer questions—hardly a manifestation of a reliability norm. Something in addition to a concern with reliability was going on in English confessions law of this period.
Along with the trappings of modernity, the century prior to 1787 brought a dramatic change in how human actors were perceived. The Glorious Revolution that swept James II from power in 1688 swept into power those with a Whig philosophy. The Whigs rejected the absolute power of the monarch and insisted that governance be shared with the people through Parliament. John Locke identified a law of nature that makes humans “all equal and independent”; therefore, “no one ought to harm another in his life, health, liberty, or possessions.”60 In Locke’s state of nature, “men are not bound to submit to the unjust will of another.”61 Even Thomas Hobbes, a royalist who believed in a strong monarchy, claimed a right to disobey the sovereign when it commanded the subject to do an act that would injure or destroy him.62
And the monarchy had changed. After the Oliver Cromwell experiment in republican government ended in 1660, Charles II reclaimed a weakened monarchy. In 1688, the Glorious Revolution “concentrated power in the hands of an oligarchy of Whig nobles and virtually ended interference with the local justices [of the peace], even by [royal] judges.”63 As historian Alan Harding put it, the “gentry entered an age of prosperity in which the J.P.s could afford to treat popular disorder with comparative leniency.” While Harding’s point is limited to the justices of the peace, it applies equally well to the trial judges who sat in the Old Bailey. One aspect of the weakened monarchy was that the royal judges were no longer supervised by the crown. Judges had more power to dispense mercy or justice to fit the individual case.
Langbein is thus wrong to dismiss a class explanation of skepticism about confessions on the ground that social stratification was “centuries old.” What is important, in our explanation if not in Wigmore’s, is the Whig philosophy in the eighteenth century. Whig judges looked at the lower classes through a different lens than judges would have used in the sixteenth and seventeenth centuries.
Still, one must account for the fact that Whig judges were in power roughly a century before the appearance of Blackstone’s skepticism and the Hawkins-Leach dictum. What explains the robust embrace of confession-skepticism in the late eighteenth century? Part of the explanation is that England was, by 1787, a world power, both by force of her navy and her dominant position as the most important trading partner with the world.64 England was at peace and thus faced no imminent external threats.
Internal threats are probably more important than external ones in judging a culture’s tolerance for harsh interrogation tactics, and fear of crime is an important internal threat. By the mid-eighteenth century, English criminal procedure was ill-suited to deal with urban crime. Without police, justice largely depended on victims to institute prosecutions, aided by the grand jury that Henry II had instituted. While that system was probably adequate for crime in villages and small cities, where the identity of the malefactor was usually known or easily ascertained, it did not prove adequate for a city like London, which, by 1760, had a population of roughly 750,000.65 Robberies were a particularly severe problem. The robber could appear from a dark alley, commit the crime, and then disappear into London’s crowded streets. “The inadequacy of medieval machinery to cope with the problems of a modern metropolis is … shown most clearly by the outbreak and long continuance of a severe epidemic of street robbery” in the early eighteenth century.66 The epidemic persisted for decades. Henry Fielding, the novelist and magistrate, in 1751 published a pamphlet entitled An Enquiry into the Causes of the late Increase of Robbery.67
In 1754, John Fielding succeeded his half-brother, Henry, “as the leading magistrate in Westminster … in the midst of a crime wave in London.”68 In response to the crime wave, Sir John Fielding effected changes in criminal procedure that made confessions easier to obtain and admit. He recognized that English criminal procedure lacked an effective mechanism to investigate and solve these street crimes before they were tried in the Old Bailey. That was where the magistrate’s examinations became critical. To help produce evidence, Fielding created a clearing house to gather and store information about crimes and suspects and also released that information to the London press.69
More relevant to our project, he organized a small group of proto-detectives, called the Bow Street runners, who were available “to investigate offenses, apprehend suspects, and in general support the efforts of victims of crime to bring perpetrators to be examined and prosecuted.”70 At Bow Street, Fielding enlarged the magistrate’s role so that stronger cases could be sent to the Old Bailey. One innovation was that “on every Wednesday three or more Justices sit there [at Bow Street] from Ten to Three, in Order to re-examine all such Prisoners as have been committed in the preceding Week.”71 Though Fielding claimed that the purpose was to allow the accused to “shew their Innocence,” Beattie concludes that the real motive was to give victims an opportunity to identify “those they accused and to sign a deposition to that effect.”72 This “identity parade” would put pressure on suspects to make a statement. Police still use that technique today.
Fielding persuaded Parliament to expand the number of magistrates who sat at Bow Street and, in 1768, he announced that the Bow Street office would be open “daily … from Ten to Two, and from Five to Nine.”73 His reputation as “an active and knowledgeable magistrate” attracted victims from other parts of London, willing to travel long distances for a better chance to prosecute those who had wronged them.74 In sum, by the 1760s, what had once been a fairly level playing field at the magistrate’s examination—a victim prosecuting the case against an accused before a magistrate who was mostly passive—had turned into a more intense experience.
Fielding’s heightened pressure on suspects did not escape attention. A 1773 letter to John Fielding, published as a pamphlet, said that those who had heard Fielding’s “improper questions and authoritative manner of asking them, have very justly compared you to an inquisitor general, instead of a British magistrate.”75 The writer asked how Fielding could justify “demanding of the unhappy prisoners what they have to urge in their defence” when the laws “suppose every man innocent till he is convicted by the unanimous determination of his peers.”76 In language that portends Blackstone’s skepticism and the Hawkins-Leach dictum, the writer urged Fielding, “View him, Sir, in all that pertubation of mind common to distress, and answer me, how you can extort from him a confession that finally destroys every hope of justice and mercy on this side [of] the grave.”77
The Fielding innovation in magisterial examinations, more than any other development, explains why judges at the Old Bailey became increasingly skeptical of confessions. As we move into the nineteenth century, other changes reinforced the tendency to be skeptical of confessions and lenient toward offenders. It appears that London was becoming less violent by the late eighteenth century,78 perhaps partly as a result of Fielding’s changes in procedure. A guidebook published in 1802 claimed “that no city in proportion to its trade and luxury is more free from danger to those who pass the streets at all hours, or from other depredations, open or concealed, on property” than London.79 A late nineteenth-century English political scientist noted that the eighteenth and nineteenth centuries brought a “change in the attitude toward social questions which was the outcome of the new spirit of humanity, the new command of material resources, and the new belief in environment rather than Providence as the cause of many human ills.”80 Humans mattered. They could act on the universe to make it better, fairer, and more just.
Moreover, as the power of the monarch receded, a new mechanism of social control was necessary. From 1689 to 1800, Parliament quadrupled the number of capital offenses—to over 200—as a way of maintaining order,81 but that created an unintended backlash. Wealthy judges were reluctant to hang a young offender who had, for example, stolen a piece of silverware from her master. When Parliament removed the option of a lesser penalty, prosecutors, magistrates, judges, and juries “were tempted to strain the law to avoid the risk of what was felt to be an unjust penalty.”82
A news account from 1818 shows the emotional difficulty of imposing the death penalty on so many offenders. The story recounts the sentencing of three defendants—one was convicted, essentially, of stealing five pounds; one for stealing property greater than forty shillings from a dwelling; and the third, Mary Smith, of passing a forged note. The judge “condemned” all three to death. He noted the possibility that the sovereign might extend mercy to the first two but “with respect to the last, it was very doubtful. … The three seemed much affected; Mary Smith wept aloud.”83
Though in terrorem mechanisms have been for millennia at the core of Western social control, governance is more effective if it does not depend solely on terror. “If authority was to be respected, then power had to be exercised in ways that commanded respect and elicited consent.”84 To charge a servant with a capital offense, and then suppress her confession and spare her life, was likely a remarkably effective way both to command respect and elicit consent to be governed. It also reinforced the in terrorem power of the law. She and other servants would likely think twice before stealing the master’s silver in the future.
Religion played a role in the attitude of English judges of the period. The Christian religion, with its emphasis on mercy and forgiveness, was part of the fabric of English life during this era in a way that probably cannot be grasped today. Speaking of eighteenth-century England, O’Gorman wrote, “In theory, at least, landowners were expected to treat their tenants with generosity and kindness and to behave with Christian mercy towards them, especially during emergencies or in times of want and difficulty.”85 Judges were empowered to grant Christian mercy when the tenants and servants were foolish enough to confess to capital crimes in response to an inducement. Indeed, in explaining how the English law of confessions had developed its tenderness toward suspects, Justice Parke in 1852 said, “We all know how it occurred. Every Judge decided by himself upon the admissibility of the confession, and he did not like to press against the prisoner, and took a merciful view of it.”86
While the Whig philosophy that humans mattered, and that mercy was often appropriate, was important in the development of the Hawkins-Leach dictum, English courts and commentators settled on reliability as the formal rationale for suppressing confessions. Earlier in this chapter, we quoted the sixth edition of Hawkins on the influence of “flattery of hope” and “impressions of fear” on suspects who are being questioned. That quote captures the Whig concern with human autonomy. But the rest of the quote makes plain that for Leach more was at stake than autonomy or dignity. After saying that “the law will not suffer a prisoner to be made the deluded instrument of his own conviction,” the passage continues:
But if any facts arise in consequence of even such a confession, they may be given in evidence; because they must ever be immutably the same, whether the confession that disclosed them be true or false; and justice cannot suffer by their admission. The truth of these contingent facts, however, must be proved independently of, and not coupled with, or explained by the conversation or confession from which they are derived.87
This passage makes two points. First, if a confession leads to other evidence, that derivative evidence is admissible whether or not the confession was taken in compliance with rules designed to protect the suspect’s autonomy.88 Second, judges must be careful not to allow a possibly false confession to be used to prove derivative evidence. But as long as a court was assured that the evidence was not proved by a confession that might be false, even the exquisite Hawkins-Leach concern with autonomy did not move Whig judges to suppress reliable evidence of guilt.
For many decades, English courts followed the Hawkins-Leach dictum and applied what amounted to a presumption of inadmissibility in cases where suspects were subject to influences that might move them to confess. It is, as we will see, a rebuttable presumption, but if the prosecution could not point to some factor that erased the influence, English courts usually held the confession inadmissible. Indeed, in some cases, courts accepted the argument that the process of being questioned was itself an improper influence! We will turn to the doctrine that limited questioning after sketching the roles of the relevant legal actors in the investigation of crime in England during this period.
Justices of the peace—also called magistrates—were the principal investigators of crime from the sixteenth century until organized police forces gradually began to handle that function in the nineteenth century. To be sure, investigation of crime was only one part of the very broad function of the Quarter Sessions, where the justices sat. Following the Restoration, the Quarter Sessions had “become the most important organ of local government as well as the chief seat of local jurisdiction.”89
Our focus, of course, is on the criminal investigative role, which largely consisted of examining the complainant, the suspect, and witnesses that either party offered. The examinations of all but the suspect were under oath. The Marian committal statutes required the examinations to be taken down in writing and certified to the criminal trial court.90 For example, in an 1819 trial for the theft of beer, the last item of evidence was the magistrate’s clerk who “produced the examination and confession of the prisoners, which he had voluntarily signed.”91 These examinations could be conducted by other officials, including mayors.92
The examinations were not directed solely at determining who committed the crime but also at locating any property that had been stolen. An 1816 news account reports that two young women were given “another long examination” by the magistrate who was investigating the theft of thirty pounds and a gold watch.93 The suspects had already confessed to the theft, and the “long examination” was to find what the suspects had done with the stolen property.
The Bobbies, then known as the Peelers, were created as an organized police force in 1829 under Home Secretary Sir Robert Peel.94 To be sure, some police functions had been discharged for centuries by constables, sheriffs, and night watchmen. A search of the London Times from 1800 to 1811 for “watch house” produced 551 news stories, and almost all of them were describing police watch-houses. For example, in 1802:
A poor woman was apprehended on Thursday, as disorderly, and taken to the watch-house at St. Margaret’s. On being searched, 38 [pounds] in gold was found on her, besides some silver. On being brought before the Magistrate, at Queens-square, on Friday, a warrant was issued to search her lodgings, where … [a] great deal of property, of various kinds, was also found.95
In 1807, the victim of a pickpocket brought the young female suspect to the watch-house, where a search turned up nothing.96 As she denied the crime “in the most solemn manner,” the victim consented to her discharge. The patrol officer then took it upon himself to follow the suspect home. “As soon as he entered her room she fell a crying, and offered him five guineas of what she had got. … She afterwards confessed to the whole.”
Prior to 1829, the watch-houses, the constables, and the magistrates worked together to maintain order by removing crime suspects from the streets. What changed in 1829 with the creation of the Bobbies was that their explicit goal was to solve crimes rather than just maintain order. Police headquarters became known for its public entrance, Scotland Yard, which became world famous for its ability to solve crimes. Naturally, as police sought to solve crimes, they began to question suspects after they were arrested and before they were brought before the magistrate. News accounts in the 1830s begin to feature sustained police questioning, often conducted by the police superintendent. In an 1831 case, a nineteen year old who worked at an auction house was suspected of stealing 500 pounds from the house.97 The suspect “was closely questioned” by the superintendent of police and a security guard of the store until he made a “full confession of his participation” in the crime and “disclosed the names of his accomplices.” A news account from 1833 had the magistrate’s clerk calling the superintendent of police to restrain a suspect who was trying to flee.98 After detaining the suspect, the superintendent “took down his confession in writing.”
Coroners were required to conduct inquests upon “notice of a violent death” from a “peace officer” of the place “where the body lies dead.”99 They would issue a “warrant to summon a jury . . . to inquire, when, how, and by what means the deceased came by his death.” The duty of the coroner was to conduct an “inquisition” of those who might be guilty and “put in writing” the material evidence presented.100 If the coroner found individuals “culpable by inquisition . . . they shall be taken and delivered to the sheriff, and shall be committed to the gaol.”101 Though there were technical differences between the inquest and the examination by the justice of the peace, they are unimportant for our purposes. Like the justice of the peace examinations, the coroner’s examination was made available at the defendant’s trial.
An 1830 news account provides a useful summary of the criminal procedure of the time.102 On the morning of January 7, the body of John Connell was found near the “low water mark” on the shore opposite the island of Valentia, off the coast of Ireland. A police captain reported this fact to the nearest magistrate, who sent a police officer to bring Mrs. Connell before the justice. After the magistrate completed his examination, she was released, presumably for lack of evidence. But the next morning “in consequence of some circumstances which came to light in the interval,” the police captain again went to the magistrate “who agreed with him that there were grounds for arresting” Mrs. Connell and a man named M’Carthy Lawney. The magistrate issued a warrant for their arrests. The police arrested Mrs. Connell that night and obtained a “voluntary confession [from Mrs. Connell] of being accessory to the murder of her husband.”
Lawney, however, had escaped to the “cliffs on the west end of the island.”103 The police called in the Coast Guard to prevent escape by water and succeeded in capturing him when he tried to escape by road. A coroner’s inquest found a verdict against Lawney for “[w]ilful murder by strangulation” and against Mrs. Connell for aiding and assisting Lawney. The next step should have been trial in the Old Bailey, but we found no records of it having occurred.
The 1830s were a transition period in which English magistrates continued the formal questioning of witnesses and of the accused, while the police began to assist in various ways. One form of police assistance was informal questioning of witnesses before the magistrate’s examination. Another form, as was plain in the Lawney case, was to investigate the facts surrounding the crime. We now turn to the law that regulated questioning of suspects during this period.
One question we faced was when to end this chapter’s coverage of the British law of confessions. Because our ultimate goal is to explain the development of the American law of confessions, we could have ended with the Hawkins edition that added the “deluded instrument” footnote or Thompson with its remark that “too great a chastity cannot be preserved” on the issue of suspect autonomy. Thompson was decided the year Britain lost the American War of Independence.
To end there would have missed two important developments. First, the case law that developed from Thompson and the Hawkins-Leach dictum is fascinating and better developed in English law than in American law. Second, Parliament’s reaction to judicial excesses is an important part of the confessions story. Parliament intervened in 1848 and, four years later, a panel of distinguished English justices rejected the line of cases holding that the mere giving of a caution made a confession involuntary. Thus, we decided to end our English journey in 1852, though we will broaden the focus in chapter 7 when we seek to understand how and why English and American judges threw off the “deluded instrument” vision of suspects.
In 1755, the justice of the peace manuals began advising magistrates that the prisoner’s statements had to be voluntary before they were admissible at trial. Classifying statements as voluntary is a contingent legal conclusion that can vary enormously depending on the judge. Bruce Smith has shown that as trial judges found more and more statements involuntary, magistrates reacted by beginning to warn suspects that they did not have to answer questions.104
The earliest case Smith cites is the 1796 trial of Robert Davidson.105 In answer to the question of whether he had apprised “the prisoner of the consequences of making any confession,” the magistrate responded, “I have the minute [of the examination] in my book in these words.” At that point, he was interrupted by defense counsel and never answered the question. Thus, we do not know precisely how the magistrate warned Davidson, but we do know that magistrates began a self-help program to increase the utility of their examinations. The motive for this development is obvious. The magistrates of that period viewed their task as helping solve crimes and convict guilty suspects. When statements were rejected, guilty defendants were more likely to walk free, an outcome to be avoided if possible.
By 1813, seventeen years after Davidson’s trial, a prominent treatise by William Dickinson found a “duty of the magistrate to apprise the prisoner that his examination may be produced on his trial, and to give him a reasonable caution, that he is not required to criminate himself.”106 According to Dickinson, the origin of this requirement was “[t]he excessive mildness usual in exercise of the English jurisprudence.” This characterization suggests that the suppression of reliable statements had, in Dickinson’s opinion, become too frequent.
A news account from 1815 showed a magistrate advising a suspect “not to expect any thing in consequence of making such a confession.”107 In an 1832 case, a magistrate testified that he told the suspects “to say any thing or nothing, as they pleased; he held out no inducement, nor held out any threat to make them confess, but rather the contrary. He told them what they said would be taken down in writing, and it would be given in evidence against them.”108 In 1838, Chief Justice Denman sought to correct a “prevalent error” in how the warnings were given. The magistrate should “entirely … get rid of any impression that may have before been on the prisoner’s mind, that the statement may be used for his benefit; and the prisoner ought also to be told that what he thinks fit to say will be taken down, and may be used against him on his trial.”109
As coroners discharged judicial functions roughly like that of the magistrates, it should not be surprising that we found cases where the coroner warned the suspect before questioning him. The earliest that we found was an 1817 murder case, where the coroner informed the suspect “that any confession he might make on that occasion would be produced in evidence against him on his trial, and would probably lead to his conviction.”110 Then the coroner said that if the suspect wanted anything “he had to say taken down, the Coroner would readily accede to all his wishes.” The suspect confessed to a brutal murder.
Police were gradually taking over the role of questioning suspects prior to trial, and they might have warned suspects just as the magistrates had been doing for many years. The evidence here is less clear. The news accounts discussed earlier where the police superintendent questioned suspects make no mention of warnings. An 1836 case seemed to assume that if the constable had cautioned the witness, it would have removed the taint of an inducement made by an innkeeper in the presence of the constable.111
An 1837 case admitted a confession made to a police officer who testified that he did not caution the suspect.112 The judge said, “I should not myself, if placed in such a situation, put a question to a prisoner without cautioning her,” but he found that the officer’s failure to do so was not “improper.” In 1843, however, a constable took it upon himself to warn the suspect “you must be very careful in making any statement to me or anybody else, that may tend to injure you.”113 Not that it did the crown any good. Justice Coleridge held that the warning itself was enough “to make an impression on the prisoner’s mind, tending to make him state a falsehood.” The critical point, for Coleridge, was that the “prisoner’s mind must be left entirely free.” We will return to this point in the next subsection.
In 1852, a police constable gave essentially the same caution that magistrates were required to give, and the confession was held admissible.114 The point to the warnings, of course, was to avoid the Hawkins-Leach dictum about inducements. We turn now to that development.
The Hawkins-Leach dictum forbade the use of “flattery of hope” and “impressions of fear” to obtain confessions. That approach proved popular with English judges in the period, roughly from 1783 to 1852. Here is Chitty’s description, in his 1816 treatise, of the Hawkins rule:
[N]o improper influence, either by threat, promise, or misrepresentation, ought to be employed [by the magistrate]; for however slight the inducement may have been, a confession so obtained cannot be received in evidence, on account of the uncertainty and doubt whether it was not made from a motive of fear or interest than from a sense of guilt.115
Chitty broadened the Hawkins concern with “flattery of hope” and “impressions of fear” to include all “improper influence[s], either by threat, promise, or misrepresentation.” A year after Chitty’s 1816 edition, Rex v. Wilson suggested that the very examination itself could be an improper inducement.116 This, of course, was the United States Supreme Court’s theory in Miranda v. Arizona—that the process of questioning itself put pressure on the suspect to talk. The case report in Wilson does not indicate whether the magistrate cautioned the suspect that he need not answer, but the magistrate testified that he offered no inducement while examining him “at a considerable extent, in the same manner as he was accustomed to examine a witness.” The King’s Bench held the suspect’s statements inadmissible because an “examination of itself imposes an obligation to speak the truth. If the prisoner will confess, let him do so voluntarily. Ask him what he has to say?”
Wigmore claims, quite correctly, that Wilson is an outlier.117 In The King v. Lambe, The Twelve Judges of England considered in 1791 the question of whether statements made to a magistrate were admissible even though the examination was not signed by the accused or the magistrate as required by the Marian acts.118 All twelve agreed that a transcription of what the accused said during an examination was admissible at the common law and that nothing in the Marian acts changed that result.119 That should have been the end of the matter, at least based on modern notions of precedent, because The Twelve Judges was a “sacred institution” consisting of the four judges who presided over each of the three royal courts—the King’s Bench, the Common Pleas, and Exchequer.120 “When a point of difficulty arose that a trial judge was reluctant to decide on his own, especially when capital sanctions were involved and the convict would otherwise be promptly executed, the judge could defer sentencing and refer the question to [The Twelve Judges].”121 Their decision “would clarify future practice.”122
Thus, Wilson should not have suppressed the statement made in response to the magistrate’s examination. In 1826, Rex v. Ellis explicitly declined to follow Wilson.123 But even here, we see profound respect for the suspect’s autonomy. He had “claimed the right of his attorney’s attendance and assistance” during the magistrate’s examination. The magistrate refused. When this fact was noted at trial, the King’s Bench “suggested, that as the prisoner had been refused professional assistance, the case should not be further pressed: this was assented to by the counsel for the prosecution, and the prisoner was acquitted.”
The next move in the chess game of interrogation law was the defense claim that the mere giving of a caution could be an improper inducement. In Regina v. Drew, the clerk “told [the prisoner] not to say anything to prejudice himself [during the examination], as what he said I should take down, and it would be used for him or against him at trial.”124 This is a pretty robust warning of the right to remain silence. But it would not suffice in England at this time. Justice Coleridge’s entire opinion follows:
This is an inducement, and it was held out by a person in authority. I am of opinion that the prisoner’s statement cannot be given in evidence. I cannot conceive a more direct inducement to a man to make a confession, than telling him that what he says may be used in his favour at the trial.
Drew can be usefully contrasted with Regina v. Holmes, decided a year earlier.125 After the magistrate had completed his examination of the complainant’s witnesses, the suspect began to tell his side of the story. The magistrate stopped him: “‘Be sure you say nothing but the truth, or it will be taken against you, and may be given in evidence against you at your trial.’” Queen’s counsel argued that the “only proper question is, whether the words said to the prisoner had any tendency to induce him to make a false statement” and that, here, the prisoner was “cautioned not to state anything that is false.” The Queen’s Bench agreed and allowed the statement into evidence.
But it was Drew, and not Holmes, that proved influential in the 1840s. The Queen v. Harris, involved the theft of oats in Wales in 1844.126 The magistrate’s clerk, probably trying to avoid Drew, told Harris that “he was at liberty to make any statement, but ‘that whatever he said would be taken down and used against him.’” Note that the caution was that what he said would be used against him rather than, in Drew, for or against him. Here is the remarkable exchange at trial between Justice Maule and the queen’s counsel on the issue of admissibility:
Maule, J.—That will not do.
E.V. Williams.—I submit, my lord, that it is perfectly regular; it is not like the case of The King [sic] v. Drew, where the prisoner was told that whatever he said would be used for or against him; here the prisoner was expressly told that whatever he said would be used against him.
Maule, J.—The prisoner was told that whatever he said would be taken down and used against him. I cannot say that that did not induce him to say something which he thought might be favourable to him. I shall reject the statement.
Wigmore condemned cases like Wilson, Drew, and Harris as a “perversion of normal reasoning.”127
English courts also worried about the effect on suspects who were urged, by a magistrate or someone else, to tell the truth or face the music. Most cases held that this, too, was an improper inducement. In 1830, a confession was held inadmissible when made after a doctor said to the suspect “‘you are under suspicion of this, and you had better tell all you know.’”128 In 1839, the Queen’s Bench rejected a confession given in response to “‘[y] ou had better tell how you did it.’”129
Promises of favor would also taint confessions. In an 1818 case, the victim of a theft admitted promising “to be lenient if the prisoner confessed.”130 In Rex v. Cooper and Wicks, the magistrate told Cooper that if he made “a disclosure, he [the magistrate] would do all that he could for him.”131 Both confessions were rejected. In 1742, a question was raised—by the judge, probably—whether the defendant “had any promises of Indulgence before he confessed; for the Jury will consider that.”132 The question is not answered in the Old Bailey report, but the jury acquitted.
Boswell, a murder suspect in 1841, asked to see the handbill offering a reward for the capture of the murderer.133 The handbill stated that a pardon would be recommended for an accomplice who turned in the “person who actually committed the murder.” The authorities showed Boswell the handbill and, three days later, he confessed and claimed to be only an accomplice. The Boswell trial judge initially suggested that the confession was admissible, probably because of the three-day interval between reading about the pardon and the confession.134 But later in the trial, evidence was received that Boswell told a policeman “that he saw no reason why he should suffer for the crime of another, and that as the government had offered a free pardon to anyone concerned who had not struck the blow, he would tell all he knew about the matter.” Once that evidence was admitted, the trial judge concluded: “It now appears with sufficient clearness that the prisoner in making the statements ascribed to him was influenced by the hope of pardon held out by authorized parties.” The court ordered the confession stricken from evidence. Boswell was found not guilty.
The inducement probably had to be given by someone with authority to deliver on the promise, though an 1837 case disclosed a “difference of opinion among the Judges” whether the lack of authority made the confession “receivable.”135 Cases decided in 1833 and 1834 refused to allow confessions made in response to inducements by individuals without legal authority; in one, the inducement was a stranger advising the suspect at the scene of the crime that he should “split” and not suffer for his co-felons.136 The issue of authority was not discussed in either case.
But even if authority was required, it was often present in England of that era. Most crimes, except homicide, were prosecuted by the victim. When the victim-prosecutor promised not to prosecute in exchange for a confession, this was an inducement every bit as powerful as a similar offer from a magistrate. We found many cases holding that inducements made by victims tainted confessions. In a typical case, the victim of the theft told the suspect that if she returned the property “I would proceed no further with her.”137 The entire defense was, “I leave myself to the mercy of the court; the prosecutor promised that if I would own to it, he would not hurt me.” The jury acquitted.
Given the prominence of victims in prosecuting crime in this era, it is not surprising that we found few cases holding confessions admissible because of a lack of authority in the one making the inducement. An 1809 court held a confession admissible when induced by a plea “to tell the truth” from neighbors, “who had nothing to do with the apprehension, prosecution or examination of the prisoner.”138 Similarly, in Rex v. Wild, neighbors induced a confession to murder by telling the thirteen-year-old suspect to kneel down and give a truthful answer in the presence of the Almighty.139 The judges unanimously held the confession “strictly admissible,” without stating their theory.140
A proper caution could end the effect of the improper influence. In Rex v. Clewes, a magistrate, who was also a clergyman, met with Clewes after his arrest and told him that if he was not the one who struck the fatal blow, the magistrate “would use all his endeavors and influence to prevent any ill consequences from falling on him.”141 Later, Clewes sent for the coroner, apparently prepared to make a confession. The coroner cautioned Clewes that any confession or admission “would be produced against him at the next Assize” on a trial for murder, “and that no hope or promise of pardon could be held out to him, either by his Majesty’s government or anybody else.”142 The King’s Bench held that the caution given just prior to the confession “must be taken to have completely put an end to all hopes that had been held out.”143
Gilham was arrested for the murder of a female servant who, apparently, caught him stealing goods belonging to her master.144 In jail, he appeared distraught, and the jailer advised him what passages to read in the prayer book that he brought with him. Gilham asked to speak to the chaplain of the jail who explained “what he considered to be the nature of true repentance.”145 Part of “true repentance” was to “repair” the injury “he had done [to] his fellow creatures” as well as “any injury done to the laws of his country.”
After the chaplain left, Gilham told the jailer that he was prepared to confess. The jailer cautioned him: “‘Don’t tell me any thing but what you would wish the mayor and magistrates to know; for whatever you tell me I must inform them of.’”146 The prisoner confessed the murder and said he also wanted to confess it to the mayor. When the mayor arrived, he too cautioned Gilham, very much in the way the United States Supreme Court would later require in Miranda:
Before you say any thing, I think it necessary to apprize you … that it will probably be given in evidence against you. You are therefore to exercise your own discretion, and say little or nothing, as you may think best, and if you have changed your mind since you sent [for] me, and do not choose to say anything, I will retire, and shall not feel at all angry with you for having brought me down [here] unnecessarily.147
Gilham repeated his confession to the mayor, whose clerk took down the confession. When Gilham read it over, his hand shook so badly he could not sign his name. But he said “it was all true.”
Given the solicitude shown by the mayor, the Assize Court could easily have held, as in Clewes, that the caution broke the causal chain back to the chaplain. But the court did not rely on lack of causation to hold the confession admissible, focusing instead on the kind of inducement being offered. The court drew a distinction between inducements based on religion and the hereafter and inducements made by those who have legal authority over the prisoner.148 Looking at it from the twenty-first century, it would seem that if the person making the inducement has no authority to deliver on the promise, then the pressure put on the suspect by the human actor would be decidedly less. Looking at it from the 1829 perspective, confessing to obtain “repentance” does not justify concluding “that the confessions given under such motives are untrue.”149 In 1829 England, one did not lie to God. In 1853, the advice “[d]on’t run your soul into more sin, but tell the truth” was held not to be an improper inducement.150
At the height of the English embrace of the Hawkins-Leach dictum, many confessions to capital crimes were rejected largely on the ground that the autonomy of the suspect had been overridden. Here, again, we note the proportionality principle. When faced with a death sentence or a finding that the confession was not freely given, courts rarely insisted that the inducement cast substantial doubt on the confession’s reliability. Outside of the religious context, courts rarely cited lack of authority of the inducer as a reason to admit a confession. But times were changing.
Even at the height of English solicitude toward suspects who confessed their crimes, some judges were unwilling to give a robust embrace to the Hawkins-Leach dictum. As we noted earlier, Warickshall held in 1783 that stolen property discovered by means of an inadmissible confession was nonetheless admissible as long as it could be identified as the stolen property without using the confession.151 In 1784, Justice Buller went so far as to suggest that the confession itself should be admissible because “the reason of rejecting extorted confessions is the apprehension that the prisoner may have been thereby induced to say what is false; but the fact discovered shews that so much of the confession as immediately relates to it is true.”152 And the court said in Warickshall that “the consequences to public justice would be dangerous indeed” if the jury did not learn that the accused knew where the stolen property was found.153 To suppress that fact “would be holding out an opportunity to compound felonies.”
Later in the period, judges began to caution magistrates not to go too far in discouraging confessions. The King’s Bench in 1832 said that magistrates should not tell suspects not to confess.154 The magistrate should instead caution the suspect that he should expect no favor from confessing. After that, “it ought to be left entirely to himself whether he will make any statement or not: but he ought not to be dissuaded from making a perfectly voluntary confession, because that is shutting up one of the sources of justice.”
In 1836, the King’s Bench refused to suppress a statement made in response to a forgery victim’s exhortation “to be sure to tell the truth.”155 Unmoved by the argument that this plea creates “an intimation that it will be better for him if he confesses the charge,” Justice Littledale instead indulged a reliability rationale. He read the cases “to exclude all confessions which may have been procured by the prisoner being led to suppose that it is better for him to admit himself to be guilty of an offense which he never really committed.” But it “can hardly be said that telling a man to be sure to tell the truth, is advising him to confess what he is really not guilty of.”
Some threats and inducements were rejected as insufficient to cause a confession. A threat to call for a constable the next morning did not taint a confession made to the constable because the inducement was “at an end” when the suspect was put in the hands of the constable.156 The offer to let a suspect see his wife if he told where the stolen property was located was not a sufficient inducement to render the confession inadmissible.157
As for examinations by magistrates, these continued under the authority of the Marian acts as amended by later acts. Given the strictness of the Hawkins-Leach dictum, one could expect that the statutory regime would be strictly applied, but it was not. Two requirements added later were that the prisoner sign his statement and that the magistrate furnish him a copy of the statement. Even if the magistrate failed to do these required acts, courts by the 1830s admitted the statements. “What a prisoner says [to the magistrate] is evidence against himself, whether the officer was right or wrong in not returning the statement, or furnishing a copy of it to the prisoner. That is quite a collateral inquiry.”158 Moreover, oral statements the accused made that were not transcribed were nonetheless admissible by testimony of the magistrate or his clerk.159
Even at the height of the power of the Hawkins-Leach dictum, it was limited to threats and inducements. The very same Lord Coleridge who, in 1837, would find the giving of a caution to be an impermissible inducement held in 1835 that a statement made to a constable when the accused was drunk was admissible, and this was true even if the constable had plied the accused with liquor hoping he would incriminate himself.160 “[T]o rendered a confession inadmissible,” Coleridge wrote, “it must either be obtained by hope or fear.”
But the strongest blow to the robust application of the Hawkins-Leach dictum was delivered by Parliament in 1848 in the Sir John Jervis Indictable Offences Act, which standardized the duties of justices of the peace in serious criminal cases.161 Section 18 of Chapter 42 of the act required magistrates to read to the accused the depositions taken from other witnesses and then to say to the suspect: “Having heard the Evidence, do you wish to say anything in answer to the Charge? You are not obliged to say anything unless you desire to do so, but whatever you say will be taken down in Writing, and may be given in Evidence against you upon your Trial.”
One who comes upon this provision without knowing the history might think that it resulted from wanting to protect suspects from overbearing examinations.162 That, after all, was one of the motives that prompted Miranda v. Arizona. But this was probably not Parliament’s goal in the 1848 act, as Bruce Smith recognized.163 Context is critical.
Statements made by the accused pursuant to Section 18 were transmitted to the criminal court and “may, if necessary, be given in Evidence against him, without further Proof thereof.” This is probably the key component of the act. Section 18 also required the magistrate
give [the accused] clearly to understand, that he has nothing to hope from any Promises of Favour, and nothing to fear from any Threat which may have been holden out to him to induce him to make any Admission or Confession of his Guilt, but that whatever he shall then say may be given in Evidence against him upon his Trial, notwithstanding such Promise or Threat.
While this might be intended to relieve the accused of the pressure of prior threats or promises, it also prevented the accused from arguing that a threat or promise caused him to confess. It is, in effect, a legal rule that cleanses the statement of any prior influence and thus avoids the Hawkins-Leach dictum.
Moreover, the English courts quickly reduced the significance of this second required caution. In Regina v. Sansome, the magistrate gave the general warning that the accused was not required to say anything but failed to give the warning that he should have nothing to hope from any promise or to fear from any threat.164 Sansome’s counsel argued that without both warnings, the statement to the magistrate should be inadmissible, that the second caution was a “condition precedent” to admissibility.165 That was certainly a permissive reading of Section 18, and a trial court opinion had agreed, in dicta, with the “condition precedent” reading.166 But the Queen’s Bench held unanimously that the second caution was not required.167 “It is always wise to give the second caution,” Justice Alderson wrote, because if an inducement or threat had been made earlier, then Section 18 would not save the confession.168 But “[a]s there was no evidence of any promise or threat, there was no necessity for showing that the second caution had been given.”169
To be sure, Section 18 might have reduced the coerciveness of the magistrate’s examination. It directed the magistrate to ask only “do you wish to say anything in answer to the Charge.” If this replaced the more extensive examination that magistrates sometimes conducted, it would have greatly lessened the pressure of the examination. Even if Parliament did not intend to limit the magistrate, that would likely be the practical effect. Why engage in a detailed examination when Parliament has offered an easier path? Moreover, by 1848, London police were beginning to assume the role of examining suspects, and magistrates were probably only too happy to relinquish that task.
Parliament’s ultimate goal in Section 18 seems to have been more convictions. As magistrates had been cautioning suspects for decades by 1848, there was no reason to require cautions. The innovation in Section 18 was to make statements admissible if the magistrate complied with the requirements set out there. Section 18 was probably more the friend of the crown and its prosecutors than the accused.
We defer until chapter 5 our theories about why Parliament might have wanted to make confessions easier to admit as well as the developments that followed enactment of the Section 18 of the Indictable Offences Act. But it seems relatively clear that the attitude toward interrogation and confessions was beginning to change in England. We will next trace a similar evolution of the law in America.