David Hoffman and the Science of Jurisprudence

United States v. Hare (26 F. Cas. 148)

Circuit Court, D. Maryland

May, 1818

David Hoffman, Esq.--I shall solicit your honour's indulgence while I briefly state our views as to the operation of the courseadopted by the prisoners-- viz. their standing mute.The indictment in these cases is predicated on the 19th section of the act ofcongress of 1810.This provides that if any person shall rob any carrier of, or other person entrusted with, themail of the United States, of such mail, or a part thereof, such offender shall be imprisoned, not exceeding ten years; and if in effecting such robbery he shall wound the person having custody of the mail, or put his life in jeopardy, by the use of dangerousweapons, such offender shall suffer death.The robbery of the mail, whether by mere putting in fear, wounding, or placing life injeopardy, is an offence against the United States, originating in this act of congress.Its legal criminality, as a specific crimeor public wrong against the Union, is derived solely from this source.In this act we find no provision whatever on the subject ofstanding mute, nor do we find that any other act of congress has legislated on the subject, except the act relative to crimes andpunishments of 1790 (section 30), which surely can in no way apply or be extended to the present case, since that act provides forthe case of standing mute only on indictments for crimes enumerated in that act.The present must therefore be a clear casus omissus; for the act of 1790 enumerates a variety of public wrongs, such as treason, piracy, perjury, bribery, forgery, falsifyingof records, &c., &c., and constitutes these crimes against the United States.It then provides, that if

Any person or persons beindicted of any of the offences herein set forth, for which the punishment is declared to be death, if he or they shall stand muteor will not answer to the indictment, or challenge peremptorily above the number of twenty persons of the jury; the court in any ofthe cases aforesaid shall, notwithstanding, proceed to the trial, as if he or they had pleaded not guilty, and render judgmentthereon accordingly.

Mail robbery, it is to be observed, is not one of the crimes enumerated in this act, but is an offence created by statute twenty years after.The power of the court to proceed to trial, on the prisoner's standing mute is given by no other statute than the act of 1790, and this, as we have seen, only where the prisoner is indicted for a crime enumerated in that act. As this is not there to be found, but originates in a law long subsequent, the legal sequitor to us appears to be that thepresent is a case at common law, wholly unaffected by the act of 1790.The provision relative to standing mute, contained in the 30th section of the law of 1790, surely will not be extended to theoffence made a crime by the act of 1810; inasmuch as it is a principle of law, that a statute which takes away a common law remedy or privilege ought never to have an equitable construction.10 Mod. 282.And it is laid down that if the words of a statute donot extend to a mischief which rarely happens, they shall not be extended by an equitable construction, to that mischief, but thecase shall be considered as a casus omissus.Vaughan, 373.As, therefore, the act of 1810, on which the indictment is founded, contains no provision for the case of standing mute, and as the common law operation of standing mute appears to have beenrecognized by congress, and as the act of 1790 is the only statute speaking on the subject, and this extends expressly to the offences therein specified, and as its provision ought not to be extended by equitable construction, it appears to me a sound andlegitimate conclusion that the present, as I have just stated, is a case of standing mute at common law, andas such is to be dealt with differently from the case of an indictment for treason, piracy, &c.

What then is to be the proceeding of this court, ifthe view I have just taken, and I hope with great deference, be correct?The books on this subject say that if a prisoner on his arraignment stand mute, the court ex officio must ascertain, by a jury, whether this proceed ex visitatione Dei, or ex malitia. Onthe verdict of this jury a judgment of mute is to be entered; and if it be decided that the muteness be from the visitation of God, the court shall proceed to the trial as if he had pleaded not guilty.This power, it will be perceived, is only in case themuteness be ex visitation Dei. Vide 2 Hale, P. C. 317; 15 Vin. Abr. 532.And on this judgment, the better opinion appears to bethat no sentence of death can be given.2 Hale, P. C. 317; 4 Bl. Comm. 324.If the decision be that the prisoner is mute exmalitia, that is, obstinately, and he stands indicted for a felony, he can neither be tried nor convicted.He cannot be tried,because there is no issue, for there can be no issue without a plea, and, as we shall presently see, the judgment of peine forte et dure was introduced to extort a plea.Nor can such a prisoner be convicted, because standing mute amounts to conviction only infelonies of the highest and lowest degree, viz. in treason and petit larceny; so that quacunque via data, we cannot perceive how the prisoners in the present case can receive sentence of death; since the muteness, if supernatural, cannot be followed up by ajudgment of death, and if from obstinacy, it is equally so, as there can be neither verdict nor conviction.4 Bl. Comm. 325.

It may be proper here to note an error of the learned district attorney, who in his observations just addressed to the court states it to be undoubted law, that standing mute in all cases, from the highest to the lowest crimes, amounts to conviction, and that the courts of England, for centuries past, have considered it so.The law I apprehend is not so.Standing mute amounts to conviction only in the highest and lowest crimes, viz. treason and petit larceny; and not as the gentleman has asserted, from the highest to the lowest.Prior to the statute 12 Geo. III. a, 20, (which can have no operation in this court, and therefore is to be wholly disregarded,) standing mute on indictments for any felony, other than treason and petit larceny, was uniformly followed, not by conviction, but by the judgment of penance.The books are so explicit on this point as to render misapprehension scarcelypossible. Disingenuousness in stating the law is at all times censurable; but in a state officer, prosecuting in a case affectingthe most dear and most valuable possession we have,--life,--it is surely doubly reprehensible.

The crime, then, for which these prisoners stand indicted, being neither treason nor petit larceny, nor a crime affected by the 30th section of the act of 1790, which authorizes the court to proceed to trial in certain cases of standing mute, the present mustbe a case in which, in England, prior to the statute 12 Geo. III., the court would have proceeded to the sentence of penance, orpeine forte et dure.Admitting, then, that had this case occurred in the court of king's bench, prior to the statute 12 Geo. III.,the court would have awarded penance as the only means within their control, and conceding, gratia argumenti, this court to possessthe power of awarding this terrible judgment, is the court now in a situation to pronounce such a judgment?Has there been that preliminary procedure, which forms the legal foundation for such a judgment?Has there been a jury impannelled to pronounce whether this muteness were obstinate, or by visitation of God?Has there been a judgment of mute?Farther, the books say that amute prisoner is entitled to a respite for reflection.The sentence of penance is to be solemnly read to him, that he may be fully apprised of his danger.He is then to receive the trina admonitio.15 Vin. Abr. 532; Staunf. P. C. 149.None of these formalities have taken place, so that if the court possess the power to award penance, as would unquestionably have been the onlypower of the court of king's bench, anterior to the 12 Geo. III., the exertions of this power should have preceded the forms juststated.

Let us now briefly examine, whether this court san be considered as possessed of the power of awarding any such sentence.Such apower can be derived only from

(1)The common law of England.
(2)The statutes of England.
(3)The acts of congress.
(4)The acts of assembly of the state of Maryland.

1.Admitting, for argument, this court in some cases to be guided by the English common law, the common law could give this courtno such power, as the power itself in England is not derived from the common law, but from the statute of Westminster (3 Edw. I). Vide Bar. Obs. St. 32; 4 Bl. Comm. 327; Pref. to 1 State Tr. 12.

2.There are no statutes of England, either prior to or since the Declaration of Independence, of any force or operationwhatever, in any of the courts of the United States, so that we need not seek for this power in this source.

3.It will not be pretended that any act of congress has legislated on the subject.

4.Nor has any act of assembly of this state any provision whatever relative to this judgment of penance, and the statutes ofWestminster (3 Edw. I.) has not been considered as extending to this state.Vide Kilty's Report of British Statutes.

The case under consideration appears, therefore, to be one in which the prisoner can be made responsible, if at all, onlyunder the 3d count of this indictment, which is for an offence not capital.If these men be guilty of a crime which forfeits theirlives, it may be a matter of regret that they cannot be amenable to the punishment so manifestly intended.But if the law be defective, let it be amended by the national legislature.

The peine forte et dure was introduced in feudal times for the purpose of extorting a plea in capital cases, so that if deathensued, there might be a forfeiture or escheat of the prisoner's lands.But if there were no plea, corruption of blood,forfeiture, nor escheat could ensue.

Finally, the prisoners in the present case stand mute.Can this court proceed to judgment as on a confession or conviction?Weapprehend not, as standing mute is equivalent to conviction only in treason and petit larceny, and the statute 12 Geo. III., which renders standing mute in all cases a constructive confession, cannot alter the law of the case in this court.Can the court enterthe plea of not guilty for the prisoners?We presume not, for even criminals have their rights, they cannot be forced to plead.Can this court proceed to trial as if the prisoners had pleaded not guilty?We humbly conceive not, as such a power is no wheregiven but in the act of 1790, and there only in the cases of crimes therein specified.

If the views I have thus briefly, hastily, and even to myself, unexpectedly taken, be not wholly unsound, I earnestly andrespectfully entreat the court to accord to it some consideration, and, in favour of life, not to proceed but with great caution and consideration.