When I studied the legal maxim "Allegata et Probata" and came across a 1778 case Respublica v. Carlisle, 1 U.S. 35 (1778), it caught my eye that the allegations against the defendant were made with a help of religious reference to God and Devil: "not having the fear of God before his eyes, but being moved and seduced by the instigation of the Devil."
The allegation sounded very romantic, but looked suspicious for its place in a middle of an indictment of a serious criminal case. I thought to myself, this smells like an issue of mixing religion with the government, and decided to look closer. Here is what I found:
The root of the clause is religious.
It is easy to assume that an idea, presenting both the God and the Devil in one sentence, would have religious roots. But it is so much better, if at least some proof is found to support it. I found [only] one source: according to this 1828 book, the spirit of this clause comes from the first Psalm of David, known as "Wickedness of the Wicked." It does look so, when the Psalm is examined. The explanation provided in the book makes the application of this Psalm justified, as said there "fitly": the Psalm provides a description of who can be the "wicked" so that to cause a criminal act.
In my opinion, relation to the Psalm clarifies the trouble later courts and writers had with this clause, namely, the impossibility of proving the absence of fear of God and seduction by the Devil, the lack of an evidentiary support. If we see it through the Psalm's prism, the discussed statement is not an allegation, but rather a conclusion. The logic there follows the line that if the accused did an X crime, than such person, per Psalm, is wicked and so did an act of wickedness, where (s)he could only be able to do so if there is no fear of God and upon the Devil's seduction.
The earliest mentioning found before US decisions (1535 UK, 1760 colonial Penn.).
I sense that it might have been used in indictments before 1535, especially since indictments were in use since at least 14th century, but I failed to find any citation for earlier applications. By contrast, I found two quotes in 1535: one in the case of John Fisher, bishop of Rochester (26 Hen VIII. c. 1.); and another in a famous trial of Thomas More, in the same 1535 (the only quote to an indictment I found in this book, on pages 178-179).
The tradition obviously arrived and settled on American continent as a part of the England Common Law. We have this specimen as a proof: a 1760 case of George Harrison (true name), tried in Pennsylvania, as described in 1764 book "Conductor Generalis"(the year was identified as a first year of reign of George III). The same book, on page 231, contains the earliest expressed doubt for the clause: "I do not find it asserted by any authority that these words are necessary in an indictment." Similar statement is made in 1797.
[1764] So, I mark the year 1764 as the beginning of this clause's decline. Another dispute between a form and a substance, formality v. brevity, secular v. spiritual explanation of the crime, was born. The clause did not retreat from the indictments with any ease and, as further citations will show, it can be argued that it is not completely gone today. On its way, the story had many interesting flagposts:
Development of the clause's application through US cases.
[1778]
The case mentioned earlier, Respublica v. Carlisle, 1 U.S. 35 (1778), is my earliest found usage of this form of indictment in the US. US Supreme Court had no trouble applying it.
[1804] In the published speeches in Thomas Jefferson's case (1804), the prosecutor Mr. Caines explains why this clause is unnecessary―because it brings in elements impossible to prove: "So in an indictment for murder, "not having the fear of God before his eyes, but being instigated by the devil," are inserted, but who ever heard of its being required to show, by evidence, either that the defendant had not the fear of God before his eyes, or that he was instigated by the devil?" A solid application of logic for a prosecutor, who aims prove the indictment. I already mentioned above my view on the necessity of proof for this statement.
The practice still continued, perhaps with a little decline. At least three decisions reflected its full usage: State v. Cooper, 13 N.J.L. 361, 1833 N.J. Sup. Ct. LEXIS 60 (Sup. Ct. 1833); State v. Wiley Freeman, 28 S.C. L. 57, 1 Speers 57, decided by the Supreme Court of South Carolina in 1842, as cited in State v. Roy, 40 N.M. 397, 410, 60 P.2d 646, 110 A.L.R. 1 (N.M. 1936); State v. Williams, 52 N.C. 446, 1860 N.C. LEXIS 76, 7 Jones Law 446 (N.C. 1860).
[1853] A treatise on criminal law (pp. x-xiii) made fun of US indictments, still following the common law rule and including the God-Devil clause, while praising the English reform (Lord Campbell Act, 14 & 15 Vict, ch. 100 (1851)), which abrogated such requirements in England, making UK indictments much shorter. The book confirms the practice we see in the US cases of that time, where the clause's usage remained enforced.
[1872] Another US case disapproved the practice: "The statements that the accused "not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil" with force and arms at, etc., in and upon one―in the peace of God, etc., then and there being, etc., and many other allegations in the old forms of indictment no longer serve any valuable purpose, either for aggravation or embellishment. The safety and rights of the accused will not be compromised or endangered by the omission of all such useless averments or recitals." Rowan v. State, 30 Wis. 129, 150 (Wis. 1872).
In the same year, the treatise "Commentaries on the law of Criminal Procedure" includes the clause in its coverage of indictments. To its credit, this form of indictment is included in Blackstone's Commentaries (Vol. 4), in the Appendix, without any actual commentary on its usage.
Also during 1872, a book on English law on indictments came out ("Precedents of Indictments"), with the "fear" clause still in.
[1908] Moving on to the 20th century, the discussion remained alive. The language is within the "Precedents of Forms" chapter of Matthew Bender's Treatise on the Law Covering Indictments with Forms ... Which Have Received Judicial Approval.
[1916] The practice is then again disapproved: "The allegations would have been as useless as "not having the fear of God before his eyes," or "being instigated by the devil," which our forefathers deemed so essential to a good indictment; nor could it prejudice the defendant upon the trial." State v. Mishler, 81 Ore. 548, 551-552, 160 P. 382 (Or. 1916). As an off-topic, this case also handed a nice quote on interpretation of the "dollar" term, dismissing an earlier need to have a formal definition of the currency.
[1917] A year has not passed when the court affirmatively approved the clause's usage in the indictment, saying that any other description simply would not fit. The argument is bullet-proof―how else to name the accused? "The record does not contain the indictment but, if in the ancient form, it alleged that the defendant "not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil… did, etc." 3 Chit. Cr. Law 750. While these words are not necessary, their insertion would not avoid the indictment. Wharton Prec. Indict. (114) 72. The amenities of modern times, it is believed, generally now omit this descriptive language from the indictment. ... The language was such as the state's counsel might legally use. The responsibility for its use rests with him. It is to be borne in mind that the defendant's guilt or innocence was not the only issue for discussion. Under the law (Laws 1903, c. 114, s. 1) two issues were before the jury, the defendant's guilt and the punishment of the crime. Contending the respondent should be hung, the state's counsel could not well refer to him as a follower of the meek and lowly Jesus, as a saint. The terms used seem more appropriate." State v. Small, 78 N.H. 525, 530, 102 A. 883 (N.H. 1917).
[1933] The application of the Psalm of David to an accused criminal is understandable. But it can be also applied to a ... legislature: "It is conceivable that a legislature not having the fear of God before its eyes, but being moved and seduced by the instigation of the devil, as the court contemplated in the case of People, ex rel., v. Bull, 46 N.Y. 57, might undertake to abuse its power, in order to defeat popular elections, entrench favorites in office, etc." Murray v. Payne, 137 Kan. 685, 692, 21 P.2d 333 (Kan. 1933).
[1936] The clause was disapproved again, this time with a stronger language: "In this latter ancient and archaic form we find detail upon detail, needless and useless repetition after repetition, conclusions without facts. A ridiculous and laborious written instrument having the significance of a voodoo incantation to awe the accused rather than have the effect of informing him of the crime of which he is charged. The long form for many years has been the cherished idol of the legalistic mind and the curse and nightmare of every member of the bar who has had the duty as a prosecuting attorney to prepare an indictment or information." State v. Roy, 40 N.M. 397, 412, 60 P.2d 646, 110 A.L.R. 1 (N.M. 1936).
[1946] At least one court did not follow Roy's advice. It was yet again used in an indictment here: State v. Johnson, 226 N.C. 266, 37 S.E.2d 678 (N.C. 1946).
[1972] The latest (last?) word in this discussion was told not so long ago, in 1972. You decide, on whose side is this court's decision. The court agreed that the language is a surplusage, but, nonetheless, it named it "an old, approved form" and overruled the defendant's objections to it: "It is obvious that the solicitor who drafted the bill in this case was merely following the language of an old, approved form. "In the old indictment for murder, the depth, width and nature of wound, date of death and divers other matters were charged, including the 'instigation of the devil,' but were not required to be proven." State v. Wynne, 151 N.C. 644, 65 S.E. 459 (1909). The words embraced in defendant's motion to quash were surplusage and properly regarded as such by the trial court. Defendant's contention that the surplusage was so inflammatory and so inherently prejudicial as to violate his constitutional rights to a fair trial is an unwarranted exaggeration. While such surplusage might well have been stricken, failure to do so was not prejudicial error. It seems to us that the essential averments of this bill are far more inflammatory than the surplusage of which defendant complains. His apprehensions of prejudice on this account are unsound. This assignment is overruled." State v. Taylor, 280 N.C. 273, 277, 185 S.E.2d 677 (N.C. 1972).
The dispute may still continue. It is still possible, although unlikely, that we may meet a "solicitor who drafted the bill," similar to the lawyer who used "an old and approved form" back in Taylor '72 case. Words "God" and "Devil" are still met regularly in 21st century decisions, but [so far] with no connection to the indictment's form, or to its progenitor Psalm.
Yet that the one's spirit is expressed through one's eyes still holds true. Even if applied in somewhat opposite direction, such as in this another, Taylor 2000, case: "Defendant got a gun and shot her. He told the police that when Rhonda abused the child "she had the devil in her eyes," her eyes had fire in them, and that he shot "the devil." State v. Taylor, 129 N.M. 376, 378, 2000 NMCA 72, 8 P.3d 863, 39 N.M. St. B. Bull. 35 (N.M. Ct. App. 2000).
P.S. If you think this is the only quirky fact about the rigidness of a indictment form, consider this quote from Oliver Wendell Holmes ("The Common Law," Boston, 1881, p.25 ):
_________________
The allegation sounded very romantic, but looked suspicious for its place in a middle of an indictment of a serious criminal case. I thought to myself, this smells like an issue of mixing religion with the government, and decided to look closer. Here is what I found:
The root of the clause is religious.
It is easy to assume that an idea, presenting both the God and the Devil in one sentence, would have religious roots. But it is so much better, if at least some proof is found to support it. I found [only] one source: according to this 1828 book, the spirit of this clause comes from the first Psalm of David, known as "Wickedness of the Wicked." It does look so, when the Psalm is examined. The explanation provided in the book makes the application of this Psalm justified, as said there "fitly": the Psalm provides a description of who can be the "wicked" so that to cause a criminal act.
In my opinion, relation to the Psalm clarifies the trouble later courts and writers had with this clause, namely, the impossibility of proving the absence of fear of God and seduction by the Devil, the lack of an evidentiary support. If we see it through the Psalm's prism, the discussed statement is not an allegation, but rather a conclusion. The logic there follows the line that if the accused did an X crime, than such person, per Psalm, is wicked and so did an act of wickedness, where (s)he could only be able to do so if there is no fear of God and upon the Devil's seduction.
The earliest mentioning found before US decisions (1535 UK, 1760 colonial Penn.).
I sense that it might have been used in indictments before 1535, especially since indictments were in use since at least 14th century, but I failed to find any citation for earlier applications. By contrast, I found two quotes in 1535: one in the case of John Fisher, bishop of Rochester (26 Hen VIII. c. 1.); and another in a famous trial of Thomas More, in the same 1535 (the only quote to an indictment I found in this book, on pages 178-179).
The tradition obviously arrived and settled on American continent as a part of the England Common Law. We have this specimen as a proof: a 1760 case of George Harrison (true name), tried in Pennsylvania, as described in 1764 book "Conductor Generalis"(the year was identified as a first year of reign of George III). The same book, on page 231, contains the earliest expressed doubt for the clause: "I do not find it asserted by any authority that these words are necessary in an indictment." Similar statement is made in 1797.
[1764] So, I mark the year 1764 as the beginning of this clause's decline. Another dispute between a form and a substance, formality v. brevity, secular v. spiritual explanation of the crime, was born. The clause did not retreat from the indictments with any ease and, as further citations will show, it can be argued that it is not completely gone today. On its way, the story had many interesting flagposts:
Development of the clause's application through US cases.
[1778]
The case mentioned earlier, Respublica v. Carlisle, 1 U.S. 35 (1778), is my earliest found usage of this form of indictment in the US. US Supreme Court had no trouble applying it.
[1804] In the published speeches in Thomas Jefferson's case (1804), the prosecutor Mr. Caines explains why this clause is unnecessary―because it brings in elements impossible to prove: "So in an indictment for murder, "not having the fear of God before his eyes, but being instigated by the devil," are inserted, but who ever heard of its being required to show, by evidence, either that the defendant had not the fear of God before his eyes, or that he was instigated by the devil?" A solid application of logic for a prosecutor, who aims prove the indictment. I already mentioned above my view on the necessity of proof for this statement.
The practice continued (no need to cite any particular case, there were hundreds).
[1809] The earliest critique and dismissal of the clause's usage, made directly in the US court's decision: "As well might he be put upon his trial upon the idle, formal allegation that he was instigated by the devil, and had not the fear of God before his eyes, and driven to make out by evidence that he was not instigated by the devil, and that he had the fear of God before his eyes!" People v. Melvin, 1 Yates Sel. Cas. 112, 1809 N.Y. LEXIS 257, 194 (N.Y. Sup. Ct. 1809).
The practice still continued, perhaps with a little decline. At least three decisions reflected its full usage: State v. Cooper, 13 N.J.L. 361, 1833 N.J. Sup. Ct. LEXIS 60 (Sup. Ct. 1833); State v. Wiley Freeman, 28 S.C. L. 57, 1 Speers 57, decided by the Supreme Court of South Carolina in 1842, as cited in State v. Roy, 40 N.M. 397, 410, 60 P.2d 646, 110 A.L.R. 1 (N.M. 1936); State v. Williams, 52 N.C. 446, 1860 N.C. LEXIS 76, 7 Jones Law 446 (N.C. 1860).
[1853] A treatise on criminal law (pp. x-xiii) made fun of US indictments, still following the common law rule and including the God-Devil clause, while praising the English reform (Lord Campbell Act, 14 & 15 Vict, ch. 100 (1851)), which abrogated such requirements in England, making UK indictments much shorter. The book confirms the practice we see in the US cases of that time, where the clause's usage remained enforced.
[1872] Another US case disapproved the practice: "The statements that the accused "not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil" with force and arms at, etc., in and upon one―in the peace of God, etc., then and there being, etc., and many other allegations in the old forms of indictment no longer serve any valuable purpose, either for aggravation or embellishment. The safety and rights of the accused will not be compromised or endangered by the omission of all such useless averments or recitals." Rowan v. State, 30 Wis. 129, 150 (Wis. 1872).
In the same year, the treatise "Commentaries on the law of Criminal Procedure" includes the clause in its coverage of indictments. To its credit, this form of indictment is included in Blackstone's Commentaries (Vol. 4), in the Appendix, without any actual commentary on its usage.
Also during 1872, a book on English law on indictments came out ("Precedents of Indictments"), with the "fear" clause still in.
[1908] Moving on to the 20th century, the discussion remained alive. The language is within the "Precedents of Forms" chapter of Matthew Bender's Treatise on the Law Covering Indictments with Forms ... Which Have Received Judicial Approval.
[1916] The practice is then again disapproved: "The allegations would have been as useless as "not having the fear of God before his eyes," or "being instigated by the devil," which our forefathers deemed so essential to a good indictment; nor could it prejudice the defendant upon the trial." State v. Mishler, 81 Ore. 548, 551-552, 160 P. 382 (Or. 1916). As an off-topic, this case also handed a nice quote on interpretation of the "dollar" term, dismissing an earlier need to have a formal definition of the currency.
[1917] A year has not passed when the court affirmatively approved the clause's usage in the indictment, saying that any other description simply would not fit. The argument is bullet-proof―how else to name the accused? "The record does not contain the indictment but, if in the ancient form, it alleged that the defendant "not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil… did, etc." 3 Chit. Cr. Law 750. While these words are not necessary, their insertion would not avoid the indictment. Wharton Prec. Indict. (114) 72. The amenities of modern times, it is believed, generally now omit this descriptive language from the indictment. ... The language was such as the state's counsel might legally use. The responsibility for its use rests with him. It is to be borne in mind that the defendant's guilt or innocence was not the only issue for discussion. Under the law (Laws 1903, c. 114, s. 1) two issues were before the jury, the defendant's guilt and the punishment of the crime. Contending the respondent should be hung, the state's counsel could not well refer to him as a follower of the meek and lowly Jesus, as a saint. The terms used seem more appropriate." State v. Small, 78 N.H. 525, 530, 102 A. 883 (N.H. 1917).
[1933] The application of the Psalm of David to an accused criminal is understandable. But it can be also applied to a ... legislature: "It is conceivable that a legislature not having the fear of God before its eyes, but being moved and seduced by the instigation of the devil, as the court contemplated in the case of People, ex rel., v. Bull, 46 N.Y. 57, might undertake to abuse its power, in order to defeat popular elections, entrench favorites in office, etc." Murray v. Payne, 137 Kan. 685, 692, 21 P.2d 333 (Kan. 1933).
[1936] The clause was disapproved again, this time with a stronger language: "In this latter ancient and archaic form we find detail upon detail, needless and useless repetition after repetition, conclusions without facts. A ridiculous and laborious written instrument having the significance of a voodoo incantation to awe the accused rather than have the effect of informing him of the crime of which he is charged. The long form for many years has been the cherished idol of the legalistic mind and the curse and nightmare of every member of the bar who has had the duty as a prosecuting attorney to prepare an indictment or information." State v. Roy, 40 N.M. 397, 412, 60 P.2d 646, 110 A.L.R. 1 (N.M. 1936).
[1972] The latest (last?) word in this discussion was told not so long ago, in 1972. You decide, on whose side is this court's decision. The court agreed that the language is a surplusage, but, nonetheless, it named it "an old, approved form" and overruled the defendant's objections to it: "It is obvious that the solicitor who drafted the bill in this case was merely following the language of an old, approved form. "In the old indictment for murder, the depth, width and nature of wound, date of death and divers other matters were charged, including the 'instigation of the devil,' but were not required to be proven." State v. Wynne, 151 N.C. 644, 65 S.E. 459 (1909). The words embraced in defendant's motion to quash were surplusage and properly regarded as such by the trial court. Defendant's contention that the surplusage was so inflammatory and so inherently prejudicial as to violate his constitutional rights to a fair trial is an unwarranted exaggeration. While such surplusage might well have been stricken, failure to do so was not prejudicial error. It seems to us that the essential averments of this bill are far more inflammatory than the surplusage of which defendant complains. His apprehensions of prejudice on this account are unsound. This assignment is overruled." State v. Taylor, 280 N.C. 273, 277, 185 S.E.2d 677 (N.C. 1972).
The dispute may still continue. It is still possible, although unlikely, that we may meet a "solicitor who drafted the bill," similar to the lawyer who used "an old and approved form" back in Taylor '72 case. Words "God" and "Devil" are still met regularly in 21st century decisions, but [so far] with no connection to the indictment's form, or to its progenitor Psalm.
Yet that the one's spirit is expressed through one's eyes still holds true. Even if applied in somewhat opposite direction, such as in this another, Taylor 2000, case: "Defendant got a gun and shot her. He told the police that when Rhonda abused the child "she had the devil in her eyes," her eyes had fire in them, and that he shot "the devil." State v. Taylor, 129 N.M. 376, 378, 2000 NMCA 72, 8 P.3d 863, 39 N.M. St. B. Bull. 35 (N.M. Ct. App. 2000).
P.S. If you think this is the only quirky fact about the rigidness of a indictment form, consider this quote from Oliver Wendell Holmes ("The Common Law," Boston, 1881, p.25 ):
_________________
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