578

WEIGHT OF VERBAL ADMISSIONS.

deliberately made, and precisely identified, the evidence it affords is often of the most satisfactory nature (n).

confessio probaretur per testes; imo est minus certa cæteris probationibus,” &c. Alciat. de Præsumpt. Pars Secund. Col. 682, n. 6. See 2 Poth. on Obl. by Evans, App. No. 16, § 13; Malin v. Malin, 1 Wend. 625, 652; Lench . Lench, 10 Ves. 517, 518, cited with approbation, in 6 Johns. Ch. R. 412, and in Smith v. Burnham, 3 Sumn. 438; Stone v. Ramsay, 4 Monroe, 236, 239; Myers v. Baker, Hardin, 544, 549; Perry v. Gerbeau, 5 Martin, N. S. 18, 19; Law v. Merrills, 6 Wend. 268, 277.

(n) Rigg v. Curgenven, 2 Wils. 395, 399; Glassford Ev. 326; Com. v. Knapp, 9 Pick. 507, 508, per Putman, J. As to Admissions by Agents, see §§ 411-413.

VERBAL CONFESSIONS TO BE RECEIVED WITH CAUTION. 579

CHAPTER XV.

OF CONFESSIONS.

§ 623. THE only remaining topic, under the general head of admissions, is that of CONFESSIONS of guilt in criminal prosecutions, which we now propose to consider; and here, also, as we have just remarked in regard to admissions (a), the evidence of verbal confessions of guilt is to be received with great caution. For not only is there considerable danger of mistake, from the misapprehension or malice of witnesses, the misuse of words, the failure of the party to express his own meaning, and the infirmity of memory (b),-but the zeal which too generally prevails to detect offenders, especially in cases of aggravated guilt, and the strong disposition, in the persons engaged in pursuit of evidence, to rely on slight grounds of suspicion, which are exaggerated into sufficient proof (c),together with the character of the persons who are sometimes necessarily called as witnesses, in cases of secret and atrocious crime,―all tend to impair the value of this kind of evidence, and sometimes lead to its rejection, where, in civil actions, it would have been received. The weighty observation of Mr. Justice Foster should also be kept in mind, that "this evidence is not, in the ordinary course of things, to be disproved by that sort of

(a) Ante, § 622.

(b) See Earle v. Picken, 5 C. & P. 542, n., per Parke, B.; R. v. Simons, 6 C. & P. 540, per Alderson, B.; Foster Cr. Law, 243; Coleman's case, cited in Joy on Confess. 108. In Resp. v. Fields, Peck, R. 140, the Court observed, "How easy is it for the hearer to take one word for another, or to take a word in a sense not intended by the speaker; and for want of an exact representation of the tone of voice, emphasis, countenance, eye, manner, and action of the one who made the confession, how almost impossible is it to make third persons understand the exact state of his mind and meaning. For these reasons such evidence is received with great distrust, and under apprehensions for the wrong it may do."

(c) For a curious instance of this kind of exaggeration, see the evidence adduced in support of Hugh Macauley Boyd's claim to the authorship of Junius, 1 Woodfall's Junius, *133-*137.

580

VERBAL CONFESSIONS TO BE RECEIVED WITH CAUTION.

negative evidence, by which the proof of plain facts may be, and often is, confronted" (d).

§ 624. In addition to these sources of distrust, which are often sufficient to raise a serious doubt whether the confession given in evidence was actually made by the prisoner in the words or to the effect stated by the witnesses, there is yet another reason why caution should be employed in receiving and weighing confessions. The statements, though made as deposed to, may be false. The prisoner, oppressed by the calamity of his situation, may have been induced by motives of hope or fear to make an untrue confession (e); and the same result may have arisen from a morbid

(d) Foster Cr. Law, 243. See also 1 Ph. Ev. 397; Lench v. Lench, 10 Ves. 518; Smith v. Burnham, 3 Sumn. 438; 4 Bl. Com. 357; R. v. Crossfield, 26 How. St. Tr. 109, per Mr. Adams, in his address to the jury. The civilians placed little reliance on naked confessions of guilt, not corroborated by other testimony. Carpzovius, after citing the opinion of Severus to that effect, and enumerating the various kinds of misery which tempt its wretched victims to this mode of suicide, adds-" quorum omnium ex his fontibus contra se emissa pronunciatio, non tam delicti confessione firmati quam vox doloris, vel insanientis oratio est." B. Carpzov. Pract. Rerum Criminal. Pars III. Quæst. 114, p. 160. So also, in the Ecclesiastical Courts, it is regarded with great distrust. See per Sir W. Scott, in Williams v. Williams, 1 Hagg. Cons. R. 304.

(e) Of this character was the remarkable case of the two Boorns, convicted in the Supreme Court of Vermont, in Bennington county, in September term, 1819, of the murder of Russell Colvin, May 10, 1812. It appeared that Colvin, who was the brother-in-law of the prisoners, was a person of a weak mind; that he was considered burdensome to the family of the prisoners, who were obliged to support him; that on the day of his disappearance, being in a distant field where the prisoners were at work, a violent quarrel broke out between them; and that one of them struck him a violent blow on the back of the head with a club, which felled him to the ground. Some suspicions arose at that time that he was murdered; which were increased by the finding of his hat in the same field a few months afterwards. These suspicions in process of time subsided; but, in 1819, one of the neighbours having repeatedly dreamed of the murder, with great minuteness of circumstance both in regard to his death and the concealment of his remains, the prisoners were vehemently accused, and generally believed guilty of the murder. Upon strict search, the pocket knife of Colvin and a button of his clothes were found in an old open cellar in the same field, and in a hollow stump not many rods from it were discovered two nails and a number of bones, believed to be those of a man. Upon this evidence, together with their deliberate confession of the fact of the murder and concealment of the body in those places, they were convicted and sentenced to die. On the same day they applied to the legislature for a commutation of the sentence of death to that of perpetual imprison

INSTANCES OF FALSE CONFESSIONS.

581

ambition to obtain an infamous notoriety (f), from an insane or criminal desire to be rid of life, from a reasonable wish to commence a new career in another hemisphere, from an almost pardonable anxiety to screen a relative or a comrade (g), or even from the delusion of an overwrought and fantastic imagination (h). Still the actual instances of false confessions of crime are very rare, and their just value has been happily stated by one of the most accomplished of modern jurists. "Whilst such anomalous cases," says the writer, "ought to render courts and juries at all times extremely watchful of every fact attendant on confessions of guilt, the cases should never be invoked, or so urged by the accused's counsel, as to invalidate indiscriminately all confessions put to the jury, thus repudiating those salutary distinctions which the Court, in the judicious exercise of its duty, shall be enabled to make. Such an use of these anomalies, which should be regarded as mere exceptions, and which should speak only in the voice of warning,

ment; which, as to one of them only, was granted. The confession being now withdrawn and contradicted, and a reward offered for the discovery of the missing man, he was found in New Jersey, and returned home in time to prevent the execution. He had fled for fear that they would kill him. The bones were those of some animal. They had been advised by some misjudging friends, that, as they would certainly be convicted upon the circumstances proved, their only chance for life, by commutation of punishment, depended on their making a penitential confession, and thereupon obtaining a recommendation to mercy. This case, of which there is a Report in the Law Library of Harvard University, is critically examined in a learned article in the North American Review, vol. 10, p. 418-429. For another case of false confession under a promise of pardon, see a case cited in note to Warickshall's case, 1 Lea. C. C. 264, n.

(ƒ) One or other of these motives probably induced Hubert falsely to confess that he set fire to London in 1666. His confession cost him his life. See 6 How. St. Tr. 807-809, 819-821; and Wills on Circumst. Ev. 88, 89. See also General Lee's assertion that he was the author of Junius, as narrated in 1 Woodfall's Junius, *122, *123.

(g) Mr. Joy mentions a case of an innocent person making a false constructive confession, in order to fix suspicion on himself alone, that his guilty brothers might have time to escape; a stratagem which was completely successful; after which he proved an alibi in the most satisfactory manner. Joy on Confessions, 107; 1 Chitty Cr. Law, 85, S. C.

(h) This is probably the true key to the frequent confessions of the poor wretches, who, in the good old times, were wont to be tried for witchcraft. See Mary Smith's case, 2 How. St. Tr. 1049; Essex witches, 4 id. 817; Suffolk witches, 6 id. 647; Devon witches, tried in 1682, 8 id. 1017, 1037.

582

JUDICIAL CONFESSIONS.

is no less unprofessional than impolitic; and should be regarded as offensive to the intelligence both of the Court and jury” (i).

§ 625. Indeed, all reflecting men are now generally agreed, that deliberate and voluntary confessions of guilt, if clearly proved, are among the most effectual proofs in the law; their value depending on the sound presumption, that a rational being will not make admissions prejudicial to his interest and safety, unless when urged by the promptings of truth and conscience (j). Such confessions, therefore, so made by a prisoner to any person, at any time, and in any place, are at common law receivable in evidence (k), while the degree of credit due to them must be estimated by the jury according to the particular circumstances of each case.

§ 626. Confessions may be divided into two classes, namely, judicial and extra-judicial. Judicial confessions are those which are made before the magistrate, or in court, in the due course of legal proceeding; and it is essential that they be made of the free will of the party, and with full knowledge of the nature and consequences of the confession. Of this kind are the preliminary examinations, taken in writing by the magistrate pursuant to statute; and the plea of guilty to an indictment, made in open court. Either of these is sufficient by itself to support a conviction, though followed by a sentence of death, they both being deliberately and solemnly made under the protecting caution and oversight of the judge. Even on trials for treason or misprision of treason, where the law in its clemency affords to the accused unusual protection, a willing confession without violence in open court, renders it unnecessary to call witnesses in support of the charge (); and perhaps, also, though this would seem to be highly

(i) Hoffman's Course of Legal Study, vol. i. p. 367.

(5) Warickshall's case, 1 Lea. C. C. 263; 2 East, P. C. 658, S. C.; Lambe's case, 2 Lea. C. C. 554, 555; Mortimer v. Mortimer, 2 Hagg. Cons. R. 315; Harris v. Harris, 2 Hagg. Ec. R. 409; 1 Gilb. Ev. by Lofft, 216; Dig. lib. 42, tit. 2 de Confess.; Van Leeuwen's Comm. b. v. ch. xxi. § 1; 2 Poth. on Obl. by Evans, App. Numb. xvi. § 13.

(k) Lambe's case, 2 Lea. C. C. 554; M'Nally's Ev. 42, 47.

(7) 7 Will. 3, c. 3, § 2; extended to Ireland by 1 & 2 Geo. 4, c. 24; Gregg's case, 14 How. St. Tr. 1375.