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aliundè that the prosecutor had been robbed by somebody, was sufficient for a conviction; and as R. v. Eldridge did not quite come up to this case, Bayley, J., thought it right to reserve the point for the consideration of the judges, who held the conviction right. These two authorities seem to go the full length of establishing that the unsupported confession of an accused person is sufficient proof, both of the corpus delicti, and of his own criminal agency.(u) In strictness, this may be so; but such a principle should be acted on with

2 great caution, for when we *remember the numerous cases

Jin which persons tired of life, or from other motives, have falsely accused themselves of crimes, (x) we should be very careful of inflicting punishment for an offence the only proof of the existence of which rests on the statement of a supposed criminal, especially when other proof of its existence might have been procured. In capital cases, and charges of murder especially, a double degree of caution is requisite, the truth of the confession should be carefully sifted, and every effort made to obtain evidence confirmatory of, or disaffirming the corpus delicti.(y) All these observations, of course, apply with increased force where the confession is not plenary or perfect; and it is a fixed rule that a person on his trial is pot estopped or concluded by any confession or statement, however complete. It is always competent to him to falsify it, if he can; and even if he make no attempt to do so, the credit due to it is to be weighed by the jury ; for confessions or statements have no technical or artificial effect, and condemnation should flow entirely from an actual belief in the guilt of the accused.

$ 258. We now proceed to consider the infirmative circumstances applicable to confessorial evidence in general-a subject deserving the deepest and most anxious attention. The professors of the civil law, on the first revival of its study in Europe, seem to have attributed [ *334 ]

u a peculiar virtue to confessions made by *suspected crim

03 Jinals. It was pronounced to be a species of proof of the most clear, convincing, and transcendent nature, one which could not be overcome by any kind of contrary testimony.(z) But, however satisfactory confessorial evidence may be in general, the fallacy of attributing to it a conclusive effect in all cases was detected by the intelligence of later times, and has been abundantly confirmed by experience.(a) Why is a confession of guilt taken to be true ?

(u) In R. v. Wheling, also, (1 Leach, C. C. 287, n.), Lord Kenyon and Buller, J., are reported to have said, that they had not the smallest doubt but that a prisoner would be convicted on his own coộfession; and the Chief Justice of Chester is said to have expressed a similar opinion in R. v. Read, Id. It does not, however, distinctly appear, from the report of these cases, whether there was proof aliundè of a corpus delicti.. () See infrà.

(y) See the proof of the corpus delicti, in cases of murder, suprà, & 201, et seq. In the United States of America, the prisoner's confession, when the corpus delicti is not otherwise proved, is deemed insufficient for conviction. Greenl. L. Ev.9 217, p. 252.

(z) Multum a doctoribus rei confessio. Probatio dicitur liquidissima-principalissimaillustrissima-adeo ut non admittat probationem in contrarium. (Mattbæus de Prob., c. 1, N. 1. See, also, Mascard. de Prob., quæst. 7). It would, however, be most unjust to charge this absurdity on the Roman law itself, which in express terms lays down, "Si quis ultro de maleficio confiteatur, non semper ei fides habenda sit; nonnunquam enim aut metu aut quâ alia de causa in se confitentur." (Dig., lib. 48, tit. 18, I. 1,9 27, where a singular nstance of false confession is recorded. See, also, Dig., lib. 48, tit. 19, 1. 27; lib. 11, tit. 1, .11,98; and lib. 42, tit. 2.)

(a) “Confessio," says Matthæus, in a passage which, considering the age in which it was Because, it is said, that not only has the accused no object in making a false one, but the effect of the confession will be, by subjecting him to disgrace and punishment, to interfere with his interest and advantage. Men study their own interests; and the first law of nature, self-preservation, might, it is argued, be trusted as a sufficient guarantie for the truth of any confessorial statement. This reasoning looks plausible, but it will be easy to shew its inconclusiveness. Conceding the principle, that a man will act in the manner he deems best for his interest, he may not only be most completely mistaken, *as to what constitutes his true interest, but it is an obvi. L ous corollary from the proposition itself, that, when the human mind is solicited by conflicting interests, the weaker will give place to the stronger; and, consequently, that, whenever there is created a motive to false confession sufficient in the judgment of the accused to outweigh the inconvenience and loss likely to result from that false confession, the probability is that one will be made. Now, just let it be remembered, that, while the punishment denounced by law against offences is open and visible, the motives by which a party may be induced to avow or deny delinquency are confined to his own mind, and invisible to the person to whom the statement is made, who most usually knows little or nothing of the life and prospects of the party confessing, or of the innumerable links by which he may be bound to individuals who do not appear at all on the judicial stage. Such is the general view of this subject, but the force of these considerations will be better appreciated by examining separately some of the principal motives which have led to false confessions,

$ 259. 1. A false confession of an offence may be made with the view of stifling inquiry into some more serious one, of which the confessionalist is as yet unsuspected.(6)

$ 260. 2. The accused, although perfectly innocent, may deem himself exposed to annoyance at the hands of the prosecutor or some other person to whom his suffering as for the crime imputed would be acceptable.(6) To this class belong those cases where the *evidence necessary to establish the innocence of the L 000 accused would bring before the world, in the character of a criminal, some eminent individual, whose rewards for a false acknowledgment of guilt would be great, and whose vengeance for exposure might be terrible; or would be the means of disclosing transactions which it is the interest of many to conceal. Under circumstances like these, the accused is induced by threats or bribes to suppress the defence, and own himself the author of the crime imputed to him.

$ 261. 3. False confessions of guilt are sometimes made in order to benefit others; as, for instance, to save the life or reputation of parties whose interests are dearer to the accused than his own.(c)

sed The le unsuspecome more olence on

penned, does him the highest credit,“ non præstat argumentum necessarium, nec in causa civili, nec in causa criminali. Quæ enim hæc consequentia ? Confessus est se occidisse, ergo verum est se occidisse, et ergo reus et homicidii. Quam multi aut melu, aut vitæ tædio, aut impatientia, aut quâ alia de causa, rem falsissimam confitentur. (Malt, de Prob., c. 1, N. 4, 6).

(6) 3 Benth. Jud. Ev. 124. (c) A singular instance of this is said to have taken place at Nuremberg, in 1787, where two women in great distress, in order to obtain for the children of one of them the provision secured to all orphans by the law of that country, falsely charged themselves with a capi. tal crime, and were executed. (Case of Maria Schoning and Anna Harlin, Causes Célè. bres Etrangères, vol. 2, p. 200, Paris, 1827; abridged, 8 Monthly Law Mag. 172.) A case is also mentioned of a man drawing suspicion of guilt upon himself, and when examined, dropping hints amounting to a constructive confession, in order that his brothers, who were the real criminals, might have time to escape; and afterwards, on his trial, (the previous object having been attained), proved himself innocent by the clearest evidence of an alibi. 1 Chitty, Crim. Law, 85; Greenl. L. E., p. 248, article 214, n. 1.

$ 262. 4. “ In the relation between the sexes,” says 'Mr. Bentham, 6 the source of so many other eccentric flights, may be found one of the most natural exemplifications of the causes of mendacious self-inculpation ; e. g. the woman unmarried-punishment as for seduction hazarded--the imputation invited and submitted to, for the purpose of keeping off rivals, and reconciling parents 10 the alliance. Or, the

woman married the *imputation of adultery, even though [ *337 ],

Junmerited, invited with a view to marriage through di. vorce."(d)

$ 263. 5.“ Vanity," continues the same author, “ without the aid of any other motive, has been known (the force of the moral sanc. tion of truth being in such cases divided against itself) to effect an interest sufficiently strong to engage a man to sink himself in the good opinion of one portion of mankind, under a notion of raising himself in that of another :(e) e. g. “I insulted such a man;" “I wrote such a pamphlet," — regarded as hererodox or libellous by some, but by others as a meritorious exertion in the cause of truth. False statements of this kind are also sometimes produced by a morbid love of notoriety at any price.

$264. 6. False confessions of guilt are occasionally the result of terror or confusion of mind, operating on weak or timorous persons, who, alarmed at a large body of circumstantial evidence which they see arrayed against them, hope, by a plea of guilty, to obtain leniency from their judges.(g) - $265. 7. False confessions have sometimes been made through [ *338

e

]

ignorance of forensic terms. J cases where the accused, concious of moral, is not aware

This occurs *chiefly in that he has not incurred legal guilt. Thus, a man really guilty of fraud or larceny, might plead guilty to a charge of robbery ihrough ignorance, that, in legal signification, the latter means a taking of goods accompanied with violence to the person, although it is popularly used to designate any act of barefaced dishonesty. This is a mistake which formerly might have cost a man his life. So, the distinction between larceny and aggravated trespass is sometimes very slight, and an ignorant man, conscious that he cannot defend his right to property which he has taken, might plead guilty to a charge of larceny, in a case where there really was no animus furandi.

(d) 3 Benth. Jud. Ev. 116.

le) Id. 117, 118. “Quam multi,” says Matthæus, " sunt gloriosi militis similes, qui 30 Sardos, 60 Macedones, 100 Cilices uno die occidisse se gloriantur, atque etiam elephanto in India pugno perfregisse femur; quos pæna potius quam commiseratione dignos dixerit nemo." Matt. de Crimin. in lib. 48; Dig., tit. 16, c. 1.

(h) A striking instance of this is afforded by the case of the two Boorns, cited by Professor Greenleaf, L. E. , 214, note 1, p. 248, who were suspected of the murder of their brother, and advised by some misjudging friends, that, as they would certainly be convicted on the circumstances proved, their only chance for life, by commutation of punishment, depended on their making a penitential confession, in order to obtain a recommendation for mercy. They were convicted, but the missing man returned home in time to prevent the execution.

$ 266. 8. In the history of the human race, persons have been found, who reckless of their own fate so as they could work the ruin of others, have made false confessions of crimes, in which they have denounced them as participating.(h) We shall not be surprised at this, when we recollect that suicide has been committed, in order to bring down a suspicion of murder on a particular individual.(i)

$267. 9. False self-accusations are sometimes made with the view of obtaining some specific collateral end. Thus, soldiers engaged on foreign service have been known to declare themselves guilty of having committed offences at home, in the hopes of being sent back to take to their trial, to escape from military duty.(k) So, while transportation was looked upon by many of the

[ *339 ] lower order as a boon instead of a punishment, numerous offences were committed in order to provoke it: and it is not improbable that false confessions of offences actually committed by others were made with the same view.

$ 268. 10. False confessions of capital offences have occasionally been made by individuals tired of life, and who prefer getting rid of it in this way to dying by their own hands. In 1666, a Frenchman named Hubert was convicted and executed on a most circumstantial confession of his having occasioned the great fire of London, “although," adds the historian, " neither the judges nor any one present believed him guilty, but that he was a poor distracted wretch weary of life, and who chose to part with it in that way."(1)

$ 269. 11. False confessions may be made through misconception of fact. As in the case of a man mistaking a corpse which has been conveyed into his chamber for a robber, inflicts blows or wounds upon it, and subsequently discovering it to be lifeless, considers himself as having committed homicide.(m)

$ 270. 12. The last cause of false confessions is one which, to the honour of England, has ever been unknown to the common law,(n) and is now being rapidly *abandoned in other countries, 210 where it formerly prevailed, -namely, the pressure of L*** physical torture. The absurdity, to say nothing of the injustice and cruelty of the practice, has been too ably exposed to require any notice here.

(h) One of the most remarkable cases in our books, namely, that of Joan Parry and her two sons, who were executed chiefly on the strength of a confession made by one of them of the murder of a person of the name of Harrison, who afterwards turned out to be alive, may perhaps be explained on this principle. The whole story is given at length in 14 Ho. St. Tr. 1312.

(i) Supra, 8210; and Taylor's Med. Jurisp., vol. 1, p. 357. (k) False confessions of desertion are so well known, that a special clause respecting them is inserted in the annual mutiny acts. See the last of these, 6 & 7 Vict. c. 3, s. 23.

(1) Continuation of Lord Clarendon's life, written by himself, p. 352. Matthæus, too, relates an instance of a countryman, who was convicted, on his own confession, of the mur. der of a widow, who two years afterwards returned to her home, and had never received any injury whatever. Matth. de Prob., c. 1, n. 4. See, also, the false confession of a man named John Sharpe, for the murder of Miss Catherine Elmes, Ann. Reg., 1833, p. 74.

(m) See the story of the Little Hunchback, in the Arabian Nights' Entertainments.

(n) The torture was formerly used in England, through a stretch of prerogative, but it was never recognized as part of the law. Even the punishment of the “ peine forte et dure,” which seems an exception to the rule, was in its origin nothing more than a com. pulsory process to compel an accused person to say whether he was guilty or not guilty, in order that he might be tried ; (4 Blackst. Com. 327; Fleta, lib. 1, c. 34, s. 33;) and it has been doubled whether it existed at all at the common law, or was introduced in consequence of the Statute West. 1, 3 Ed. 1, c. 12. 4 Blackst. Com. 327.

$ 271. The anomaly of false confession is not confined to cases in which there might be a corpus delicti somewhere. Instances are to be found in the judicial histories of almost every country, of persons with the certainty of incurrring capital punishment, avowing themselves guilty of offences now recognized as impossible. We allude chiefly to the prosecutions for witchcraft and visible communion with evil spirits, which, in former ages, and especially in the seventeenth century, disgraced the tribunals of these realms. Some of these cases present the extraordinary spectacle of persons, not only freely (so far as the absence of physical torture constitutes freedom) confessing themselves guilty of these imaginary offences, coupled with the minutest details of time and place, but even charging themselves with having, through the demoniacal aid thus avowed, committed repeated acts of murder and other crimes.(o) The cases in Scotland [ *341 ]

u are even more *numerous than in England, (p) but there is

* J strong reason to believe that most of them were obtained by torture ;(9) and the following sensible solution of the extraordinary phenomenon which they all present is given by an eminent writer on the criminal law of the former country :-"All these circumstances duly considered, -the present misery, the long confinement, the small hope of acquittal, the risk of a new charge and prosecution, and the certain loss of all comfort and condition in society,—there is not much reason to wonder at the numerous convictions of witchcraft, on the confessions of the parties. Add to these motives, though of themselves sufficient, the influence of another as powerful perhaps as any of them, the unsound and crazy state of imagination in many of those unhappy victims themselves. In those times when every person, even the most intelligent, was thoroughly persuaded of the truth of witchcraft, and of the possibility of acquiring supernatural powers, it is nowise unlikely that individuals would sometimes be found, who either

210 seeking to indulge *malice, or stimulated by curiosity and

* Jan irregular imagination, did actually court and solicit a communication with evil spirits by the means which in those days were reputed to be effectual for such a purpose. And it is possible, that, among those, there might be some, who, in the course of a long and constant employment of such a wild pursuit, came, at last, to be far enough disordered to mistake their own dreams and ravings, or

(0) See the case of Mary Smith, 2 Ho. St. Tr. 1049; the three Devon Witches, 8 Ho. St. 1017; the note to the case of the Bury St. Edmund's Witches, 6 Ho. St. Tr. 647; and the case of the Essex Witches, 4 Ho. St. Tr. 817, perhaps the most remarkable of all. The confessions of Ann Cate, (p. 856,) of Rebecca West, (p. 840,) Rose Hally bread, (p. 852,) Joyce Boanes, (p. 358,) and Rebecca Jones (p. 854) are the most curious, the two former of which are set out in the Appendix to this work, note (2), as à fair specimen of the whole, and of the times in which they were taken.

(p) See a large number of these collected in Arnot's Collection of Criminal Trials in Scotland, p. 547 et seq., Edinb., 1785; and in Mr. Pitcairn's valuable and interesting work, entitled " Criminal Trials in Scotland, from 1488 to 1624," Edinburgh, tit. 1833, “Witch. craft," in the General Index. Out of them, we need only refer so the case of Isobel Elliot, Sept. 13, 1678, who with nine others judi jally confessed to have been baptized by the devil, and to have had carnal copulation with him. They were all convicted and burnt. (Arnot, 360, 361.) A similar confession was made by Issobel Gowdie, 13 April, 1662; Pitcaira, vol. 2, p. 602. See, also, the case of Bessie Dunlop, Id., vol. 1, p. 49.

(9) For a full description of the instruments of torture used for this purpose, see Pitcairn, vol. 1, pp. 50. 375, 376.

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