9

Criminal indictments used to use much more detailed and flowery language than they do now. I was surprised to learn, while looking at some early U.S. documents, that they had retained a feature of indictments from English common law. For some crimes, the accused was said to have done the deeds

not having the fear of God before his eyes but being moved and seduced by the instigation of the Devil

For example, this was said of Aaron Burr in three documents from New Jersey, New York, and the Federal courts:

  1. NJ indictment for the murder of Alexander Hamilton, 23 October 1804: "The Jurors [...] upon their oath present that Aaron Burr late of the Township of Bergen in the County of Bergen esquire not having the fear of God before his eyes but being moved and seduced by the instigation of the Devil on the eleventh day of July in the year of our Lord one thousand eight hundred and four at the Township of Bergen in the County of Bergen aforesaid and within the jurisdiction of this Court, feloniously Wilfully and of his malice aforethought did make an assault upon Alexander Hamilton in the peace of God and of the said State then and there being."
  2. NY coroner's inquest for the same, 2 August 1804: "Aaron Burr, late of the Eighth Ward of the Said City in the Said County Esquire and Vice President of the United States, not having the fear of God before his eyes, but being moved and seduced by the Instigation of the devil [...]"
  3. Federal indictment for treason, etc., August 1807: "Aaron Burr, late of the city of New York, and state of New York, attorney at law, being an inhabitant of, and residing within the United States, and under the protection of the laws of the United States, and owing allegiance and fidelity to the same United States, not having the fear of God before his eyes, nor weighing the duty of his said allegiance, but being moved and seduced by the instigation of the devil, wickedly devising and intending the peace and tranquility of the same United States to disturb and to stir, move, and excite insurrection, rebellion and war against the said United States [...]"

I believe that criminal indictments do not currently contain this language, but a web search showed several other American examples from later in the nineteenth century. Evidently this stopped at some point, but when and why? (For England and Wales, this would have happened no later than 1915, and indictments today are quite straightforward in content.)

In particular, I wonder if changing feelings about the establishment of religion might have led to removing devil-references. The NY and NJ constitutions both had language around religious freedom and lack of a state religion, and of course the Federal constitution has its First Amendment - but perhaps people originally saw these references to God and the Devil as being basically neutral, and later changed their minds.

Alternatively, perhaps the language was dropped because it was unnecessary detail, or in some way detracted from the accused being culpable (i.e. why are we going to punish you if the Devil made you do it?).

I'm interested in any answers that are backed by evidence about when the changes were made, and what legal theories motivated them.

3
  • 1
    In general, government uses of religious language as formalities don't violate the First Amendment. While it's fallen out of favor some courts still require witnesses to swear that they'll tell the truth "so help you God." Aug 8, 2023 at 14:15
  • My intuition would be that this would have been dropped around the same time as the disestablishment of the churches in New England (which had run its course by about 1833), but that obviously isn't directly applicable.
    – ohwilleke
    Aug 8, 2023 at 22:29
  • 1
    The latest indictment with that phraseology in the UK, that I can find, is dated 1831. Similar to the comment from @ohwilleke the UK was also going through (yet another) period of disestablishment at that time. Coincidence..?
    – user35069
    Aug 9, 2023 at 21:25

1 Answer 1

3

It appears that:

  • This language was seen as a bit ridiculous and unnecessary even at the time, and more so as the 19th century progressed.
  • The main objection is that the language is redundant or merely decorative. There was a general trend to make indictments describe the alleged offences in more ordinary language, with use of precise legal terms when needed. In particular, indictments were made to match the legal elements of the offence that were required to be proved, rather than being polemics about the wickedness of the offender.
  • Different jurisdictions abandoned it at different rates, depending on local circumstances. There does not appear to be any particular campaign about it, and since the language was seen as unnecessary rather than wrong, some prosecutors continued to use it without problems.
  • Religious freedom, or establishment of religion, has nothing do to with it. Much of the common-law understanding was driven from England where the constitutional settlement was completely different. Despite the mention of God and the Devil, this was a completely stock phrase that was devoid of any real religious content.

My main sources here are 19th century legal textbooks, which contained some citations to case law. There does not seem to have been very much statutory activity.

Quoting from Joel Prentiss Bishop's New criminal procedure; or, New commentaries on the law of pleading and evidence and the practice in criminal cases (Chicago: T. H. Flood, 4th ed., 1895), section 501 in volume 1:

It was formerly the style, nor at the present day is it quite abolished, to charge, especially in treason and felony, that the defendant did it "not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil." Both in reason and by all authority, these words are not necessary. Their original purpose seems to have been to make the accusation correspond in form to the fact; for, as Cotton Mather said, speaking of what he and others of this time believed: "When men do commit a crime for which they are to be indicted, they are usually moved by the instigation of the devil." Yet even in this view, they could never have been required; because in law, no "instigation" to crime justifies the doer, so that the devil's instigation is wholly immaterial.

Among other sources he cites Joseph Chitty's A practical treatise on the criminal law, which in an early American edition (Philadelphia: Isaac Riley, 1819) confirms at 240 that these words concerning the Devil "though usual, are not necessary to be inserted", elaborating that

where the common law, or a statute, forbids the doing of a thing, the doing it wilfully is indictable, though without any corrupt motive, and consequently it need not in any case be averred.

There are several other textbooks that discuss related but less colorful terms, such as "wilfully" or "wickedly", using essentially the same argument for why they are unnecessary. The idea is that when somebody is being tried for murder, the prosecutor is trying to show that they killed someone on purpose - not that they were wicked while doing it, which is implicit, or that the Devil was metaphysically responsible, which is irrelevant.

Many of these books seem to copy the language from Joseph Burn's Justice of the Peace and Parish Officer at section 11 of the entry on "Indictment" (references omitted) in volume 3 (London: 26th ed., 1831):

The words "wickedly, maliciously, of his own wicked and corrupt mind, being a person of evil disposition, &c." are, in general, mere matter of aggravation and not material. But where an act must be done with a particular intent, in order to render it criminal, an evil intention must be averred upon the record; and, in such case, the intent must be proved as laid or the variance will be fatal.

From the general tenor of these books, we can see that there were great difficulties with indictments that did not match the legal requirements of the offences to be tried: there are several accounts of defendants who were able to defeat the charges because of drafting problems. Additionally, the idea of a right to a fair trial (whether seen as a matter of natural justice, or founded in positive law such as the Sixth Amendment right "to be informed of the nature and cause of the accusation") added pressure on prosecutors to express the charges with precision and clarity. The textbooks are overall quite scathing about the inclusion of decorative phrases.

In case law, an American case that is directly on point is from Massachusetts, Commonwealth v Murphy 11 Cush. 472 (1853), which apparently confirms the devil-reference as unnecessary, though I haven't located the primary source. For the general idea of these references being not essential, the textbooks mainly cite an English case from the Court of King's Bench, R v Philipps (1805) 6 East 472. The Lord Chief Justice, Lord Ellenborough, considered an indictment alleging among other things that Philipps "wickedly and maliciously did endeavour to stir up, provoke, and excite [someone else] to challenge the defendant to fight a duel with him". Citing Lord Mansfield in the seditious libel case of R v Woodfall (1770) 5 Burr 2667, he said that terms of opprobrium like "wickedly" were "mere formal inferences of law" and did not contribute anything material to the description of the offence and any required element of intent. The defendant's counsel in Woodfall had objected to what the judge described as "the usual epithets", and the judge told the jury to ignore them but concentrate on the alleged facts: they were not being asked to determine whether the publication was sufficiently odious to deserve the colourful language used in the indictment. By extension, juries are not asked to make determinations about the theological circumstances surrounding sinful acts and the agency of the devil.

The 1805 case, coincidentally about duelling, is from after the Burr-Hamilton duel and it evidently took a while for this logic to penetrate the legal community in general (Bishop in 1895 calling the devil phrase "[not] quite abolished"). Notably, while the case does not rest on any specifics of the American legal or cultural order, it does appear to have been influential on American jurists who accepted it as a statement of the common-law position. The American writers do not raise any objections to the phrase on grounds relating to religion, and universally treat it as "stock" language.

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .