Mute by Visitation of God, Competency to Stand Trial and Fitness to Plead

Chronology

Before there was a criminal law, there was private vengeance and retribution.¹⁶ Traveling justices began to preside over criminal trials on behalf of the English crown during the reign of Henry II (1154–1189).¹⁷ Defendants had first been identified by a “hundred jury,” the forerunner of the U.S. grand jury.¹⁸ At trial, guilt was established by one of several forms of “ordeal,” attempts to access the verdict directly from God under the auspices of a priest.¹⁹ In one form, the accused person was bound and submerged in a river. Sinking required prompt intervention because it was a sign that the accused had been received by God and was therefore innocent. In other forms of ordeal, the defendant was first burned or scalded and innocence established by the failure of the wound to later become infected.²⁰

The severity of these ways of distinguishing the innocent from the guilty was acknowledged at the time. The administrators of the ordeal inflicted less serious burns when the evidence of guilt was weak, and acquittal rates were high.¹⁹ Defendants may have been seen as having already suffered sufficiently as to make further punishment inappropriate.

Both church and judiciary may also have been made uneasy by the heretical implications of claiming to have divined the will of God. By 1215, when the Catholic Church prohibited priests from participating in judicial ordeals, English courts had already made jury trial available to defendants who were willing to state that they wished to be tried “by God and my country”^21,22 (see Table 1).

Mute of Malice and by Visitation of God

The early medieval English trial was thus, in this respect at least, consensual.²¹ The “speech act”³⁴ of stating that one wished to be tried by God and one’s country came to assume what the nineteenth century judge and law reformer James Fitzjames Stephen described as “sacramental importance.”¹⁶ By the 1300s, if defendants did not offer these words, a jury was asked whether their failure to do so was the result of malice (ex malitia) or visitation of God (ex visitatione Dei).¹⁹ Obstinacy,³⁵ stubbornness, and impertinence all appear to have sufficed for malice.²⁶ A prisoner found mute by visitation of God could be tried; sometimes their communication difficulties led juries to recommend mercy.³⁶ A prisoner found mute of malice, on the other hand, was detained in, “prison, forte et dure,” conditions of privation.

By the 1500s, this had evolved into the harsher, “peine, forte et dure,” Law French for punishment imposed until a prisoner either agreed to participate or died³⁷ (see Figure 1³⁸). The Swiss writer Guy Miège, who lived and worked in London in the 1670s, wrote that the prisoner would be:Laid in a low dark room in the prison, all naked but his privy members, his back upon the bare ground, his arms and legs stretched with cords, and fastned to the several quarter of the room. This done he has a great weight of iron and stone laid upon him. His diet, till he dies, is only three morsels of barley bread without drink the next day; and if he lives beyond it, he has nothing daily, but as much foul water as he can drink …which grievous death some resolute offenders have chosen (Ref. 39, p 295).

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Figure 1.

“Punishment formerly inflicted on those who refused pleading.”³⁸

A defendant could thus be pressed to death without being convicted of a crime.²¹ Because it followed a jury finding that he was mute of malice, however, and because it was inflicted not to obtain a confession but to allow a trial, English legal writers of the 1500s distinguished peine, forte et dure from torture as practiced elsewhere in Europe.⁴⁰

The bleak consequences of failing to agree to participate raise the question of why any accused person would not agree to be tried to take even the slimmest chance of being acquitted at trial. Over the years, a frequent explanation has been that conviction on a capital charge led to the forfeiture of the defendant’s goods.^41,–,44 By not stating a willingness to be tried, prisoners with sufficient fortitude to die under peine forte et dure could thus ensure that their descendants were not disinherited. This does not explain why the practice persisted after forfeiture ceased.¹⁹ More recently, it has been argued that at least as important as preserving an inheritance was the desire of some defendants to delegitimize the criminal process, combined with a particular version of masculine honor prevalent in the criminal mores of the time.⁴⁵

Whatever the reasons that some defendants were willing to die in this manner, it is unlikely that their numbers were very large. From the 1200s, defendants were given multiple opportunities to change their minds and go to trial.⁴⁶ Sir Mathew Hale noted that, “For the most part, men bethink themselves and plead” (Ref. 47, p 319). The barrister Zachary Babington wrote that the practice of peine forte et dure was, “so severe, that (I think) never English man as yet (though many have been pressed to death) had the heart to execute it according to the letter” (Ref. 48, p 192). Courts were sometimes able to extract a plea using less severe forms of torture, including tying the defendant’s thumbs tightly with cord.²⁶ When it was not averted, death was routinely hastened by the placement of sharp pieces of wood or stone under the prisoner’s body.⁴⁵ Stephen describes a 1658 case where the defendant died in 10 minutes.¹⁶

Limited mitigation of this kind did not prevent Hale’s Law Commission of 1652 from recommending the abolition of peine forte et dure, but the recommendation was not enacted.^19,42 A century later, the Felony and Piracy Act of 1772 provided for the automatic conviction of defendants found mute of malice.²⁸ When English judges proved reluctant to impose a conviction in capital cases without hearing the evidence, this was in turn replaced by the Criminal Law Act of 1827, which required courts instead to insert a “not guilty” plea and proceed to trial.³¹ The abolition of peine forte et dure recommended by Hale’s Commission thus became unnecessary. Trial by judge or jury no longer required the consent of the defendant, coerced or otherwise. This remains the position in English⁴⁹ and U.S. Federal law.⁵⁰

The Meaning of “Visitation of God”

The Act of 1827,³¹ requiring that a not-guilty plea be inserted where a defendant failed to plead on their own behalf, removed the need for a court to decide whether a silent defendant was simply being obstructive or was mute by visitation of God. A HeinOnline search of English Reports conducted in July of 2022 identified 69 cases prior to 1827 where the phrase “visitation of God” appears.

The cases show “visitation of God” being used interchangeably with “act and visitation of God” and “act of God” to refer to a variety of symptoms and conditions. Sometimes the symptoms were physical. Visitation of God had caused a ship’s captain to suffer “a severe fit of the gravel” (Ref. 59, p 607) and a female servant to be “seised with fits.”⁶⁰ In other cases, the symptoms were psychological.^61,–,63 A 1670 Southampton case for recovery of lands hinged on whether Bridget Dennis “purely by the visitation of God, became of unsound mind, and has always continued so from thence hitherto” (Ref. 64, p 1129). Psychological symptoms sometimes included memory deterioration.⁶⁵

The legal significance of visitation of God seems to have derived from the absence of human agency. In Thomson v. Leach,⁶⁶ the court noted that a defendant could escape liability “by shewing that his indisposition came by the visitation of God, by which he was disabled for a time to do any reasonable thing whatsoever; and this may be as well done as to plead duress from men, which the law allows to make compulsory acts void” (Ref. 66, p 201). The timing of the onset could therefore be crucial in determining the legal consequences. Responsibility to care for a servant depended on the month in which the servant was “by the visitation of God, deprived of his reason” (Ref. 67, p 366). A will remained valid if it was written before the time at which, by visitation of God, the author’s memory had deteriorated.⁶⁸

The consequences of divine visitation, or acts of God, were contrasted with the consequences of voluntary acts, such as marriage. Voluntary acts could render prior legal arrangements no longer applicable; acts of God could not:If a man of sane memory make a will, and afterwards become insane, it is no countermand of the will; yet the reason is there given, because it is done by the act of God: but marriage is the voluntary act of the party, and amounteth in the case of a woman to a countermand of her will (Ref. 69, p 370).

Medical evidence from an eminent surgeon who happened to be in court was admissible to help establish muteness by visitation of God.⁷⁰

Because visitation of God was not under human control, the law distinguished its consequences from the consequences of improper medical treatment,⁷¹ sexual assault,⁷² poisoning,⁷³ and any, “otherwise than a natural death” (Ref. 74, p 993). James Dawes, the affidavits stated, had died “of apoplexy” when in a state of intoxication. His family challenged the verdict, arguing that the circumstances of death had not been properly investigated. Had they been, the family argued, the verdict would have reflected that death was caused not by apoplexy or “other sudden visitation of God” but by improper medical treatment.⁷⁵ Where a man fell from a railway carriage, “If the verdict be death by the visitation of God, nothing more is done; for in truth it appears that there was no occasion for an inquest” (Ref. 76, p 536).

The cases confirm that people found mute by visitation of God, unlike those found unfit to plead, were sometimes tried. Sometimes this was with the help of an interpreter. Friends and relatives fulfilled this role at least from the first half of the eighteenth century, and by the end of that century, signing interpreters were being sworn in by the English courts.⁷⁷ After Thomas Jones had been found mute by visitation of God in 1773, his trial had proceeded with the help of Fanny Lazarus, with whom he was “in the habit of communicating his ideas … it appearing that he was capable of receiving intelligence from her by means of signs” (Ref. 78, p 153). Mr. Jones was convicted of simple larceny and sentenced to be transported to the colonies.

Elizabeth Steel was found mute by visitation of God in 1787 after being arraigned on a charge of grand larceny. The judges conferred over whether she could be tried. Mr. Justice Gould conveyed their conclusion that if there was evidence that she understood what was being said and could communicate using signs, the trial would proceed. He continued: Great diligence and circumspection, however, ought to be exercised in so critical a case; and that if all means to convey intelligence to the mind of such a prisoner respecting the nature of the arraignment should prove ineffectual, the Clerk of the Arraigns may enter the plea of Not Guilty for the prisoner. (Ref. 79, p 328).

Ms. Steel, whose muteness may have been regarded as questionable after she replied to the clerk reading the arraignment, “You know I cannot hear,” was tried, convicted, and sentenced to seven years of transportation. William Thompson was tried on a charge of horse stealing after a jury had been sworn to establish whether he was mute by visitation of God. He answered the question of how he would be tried by writing, “By God and my country,” on a piece of paper before being acquitted.⁸⁰

At least since the 1600s, the phrase “visitation of God” has been used in legal cases to describe the causes of both acquired and lifelong physical and psychological conditions. The phrase has been used to denote an absence of responsibility on the part of the person with the psychological condition, or anyone else, for the condition and its consequences. It has not prevented defendants from being tried even when special measures, including the provision of an interpreter, have been necessary.

Legal Commentaries

Henry of Bracton’s On the Laws and Customs of England²³ is silent on the means of determining whether and when a defendant was able to enter a plea and be tried. Given the importance that Bracton (c.1210–c.1268) and his fellow authors placed on the mental element of a crime, however, this may simply reflect a view that the mentally ill person should not have been called to answer in the first place:A crime has not been contracted, unless the will of hurting has intervened, and the will and the purpose distinguish the misdeed, and a theft is never at all committed without the intention of thieving. And according to what may be said of an infant or a madman, when the innocence of design protects the one, and the imbecility of the act excuses the other (Ref. 23, p 399-400).

Madmen and insane persons were, they wrote, “without sense and reason, and no more than a brute animal can they do an injury nor a felony” (Ref. 23, p 508-9).

The most concrete evidence that muteness by visitation of God and the inability to be tried were regarded as discrete doctrines in the middle years of the second millennium is that commentators who followed Bracton address the two topics separately, with little by way of cross-referencing. In Chapter 43 of the second volume of his posthumously published History of the Pleas of the Crown,²⁵ Sir Mathew Hale (1609–1676) described the legal consequences in the 1600s where a defendant did not agree to be tried, “by God and my country.”If he stand mute and say nothing at all, in case of felony the court ought ex officio impannel a jury and swear it as an inquest of office to inquire, whether he stand mute of malice, and if found so, he shall have the judgment of peine fort et dure (Ref. 25, p 317).

Stating a wish to be tried not “by God and my country” but “by God and the holy church,” Hale wrote, was to be treated in the same way as saying nothing. So was attempting to prevent the trial by repeatedly challenging potential jurors. Hale seems to have been aware how severe the practice appeared and to have felt the need to justify it. Chapter 43 of the second volume continues, “This judgment is given for his contempt in refusing his legal trial” (Ref. 25, p 319).

Hale had addressed the question of whether and when a mentally ill person was able to be tried earlier in History of the Pleas of the Crown, in Chapter 4 of the first volume:If a man in his sound memory commits a capital offense, and before his arraignment he becomes absolutely mad, he ought not by law to be arraigned during such his phrenzy, but be remitted to prison until that incapacity be removed; the reason is, because he cannot advisedly plead to the indictment (Ref. 81, p 34).

As Sir William Blackstone was later to do in more detail, Hale went on to list the stages of the criminal process at which the concern might arise.⁸¹ The extent to which each of these stages requires its own kind and degree of competence has subsequently been addressed by the U.S. Supreme Court.^82,83

The legal commentaries make clear also what the cases describe: that although defendants who were found mute by visitation of God avoided peine fort et dure, they did not automatically avoid a trial. For Hale, the ability to be tried, whether a defendant was mute or not, hinged on his or her capacity to understand the proceedings:If it can appear, that he hath the use of understanding, which many of that condition discover by signs to a very great measure, then he may be tried, and suffer judgment and execution, tho great caution is to be used therein (Ref. 81, p 34).

Where communication difficulties were significant, Hale wrote, the court should assist the defendant, “touching all those points which he might possibly plead for himself … and whether he hath any matter to allege for his discharge” (Ref. 25, p 317). Hale’s view was endorsed by his near-contemporary, William Hawkins, who noted that with the proper assistance of the court, “There is no reason that his trail should be in a more loose and summary manner” (Ref. 26, p 328).

Sir William Blackstone (1723–1780) published his Commentaries on the Law of England²⁷ in 1775. The Commentaries were to become one of the principal sources in the adoption of the English common law in the United States and other English-speaking jurisdictions. Blackstone described the procedure inflicting peine fort et dure where the defendant had been found mute of malice in Chapter 25 of his fourth volume. Where the defendant had been found by a jury to be mute by visitation of God, Blackstone expected that the trial would proceed but also that a defendant’s communication difficulties would be considered. “The judges of the court,” he wrote, “(who are to be of counsel for the prisoner, and to see that he hath law and justice) shall proceed to the trial, and examine all points as if he had pleaded not guilty” (Ref. 27, p 324–5).

Blackstone appears, like Hale, to have regarded the ability, or inability, of some mentally ill defendants to be tried as a separate problem from that presented by muteness. In Chapter 2 of his fourth volume he had already described, in terms similar to Hale, the stages of the criminal process at which a defendant’s mental state might affect the ability to be tried, and why:If a man in his sound memory commits a capital offence, and before arraignment for it, he becomes mad, he ought not to be arraigned for it; because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried: For how can he make his defence? If, after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced; and if, after judgment he becomes of nonsane memory, execution shall be stayed: for peradventure, says the humanity of the English law, had the prisoner been of [s]ound memory, he might have alleged something in stay of judgment or execution (Ref. 27, p 24–5).

Like Hale and Blackstone, their 19th century successor Fitzjames Stephen felt able to discuss the procedures to be followed in cases of muteness by visitation of God without reference to those to be followed when a defendant was not able to be tried.¹⁶