608

EXAMINATION PURPORTING TO BE UPON OATH.

decline to make any explanation or declaration whatever; though if he does consent to answer the questions put to him, he may, perhaps, incur the penalties of perjury should he knowingly utter what is false (g). "But a friendless accused is not aware of the law in his favour." This may be so; but in what other case is a party at liberty to set up his ignorance of the law? If the maxim of the common law, ignorantia legis neminem excusat, be sound, as it unquestionably is; and if, consequently, the defence of acting in ignorance cannot protect an offender even from punishment; on what principle of justice is the accused entitled to say, "It is true I have confessed my crime, and have sworn that my statement is true; but you, the jury, must not hear what I said, because I was not aware of the existence of a rule of law which would have expressly justified me in holding my peace?" If the practice of examining prisoners on oath be deemed inquisitorial and harsh, let it be discountenanced, not by rejecting a confession so obtained, but by prohibiting justices from acting in this manner, or even by rendering them liable to a penalty in case of disobedience.

§ 650. It may be thought, at first view, that if this change were effected, the practical result would be the same; but this is not so; since, at present, not only are all confessions made upon oath rejected, but all those which purport to be so made (r); and this leads us to the second principle of law, on which the rule under discussion rests. That principle is, that as the justices, in discharge of their duty, ought to make a true return of what took place before them, the Court will presume that they have done so; and, therefore, will not admit parol evidence to vary or contradict the written document so returned. Now the fallacy of this reasoning is obvious. In the first place, the presumption, omnia ritè esse acta, is not conclusive in ordinary cases, and should not be so in this; and next, even supposing that it should, it does not apply. The duty of the justice is two-fold; first, to examine the prisoner without administering an oath

(2) This however seems doubtful, as the magistrate has no authority to

administer such an oath.

(r) See cases cited ante, § 649, note (p).

SWORN CONFESSIONS, WHEN ADMISSIBLE.

609

to him (8); and, secondly, to make a true return of any statement he makes. If, then, an examination be returned, which purports to have been taken on oath, the presumption that this return is true is at least counterbalanced by the opposite presumption, that the justice has discharged his duty by not swearing the prisoner; and the result is, that parol evidence should be received, in order to ascertain which presumption is in accordance with the fact. The principle, that written documents shall not be varied or contradicted by parol testimony, may apply to the body of the examination, which is taken down by the justice or his clerk, and is expressly assented to by the accused; but it should not extend to the mere formal heading or conclusion of the examination, which is not, or at least need not be, read over to the prisoner, or admitted to be correct by him; and a mis-statement in which may, and in fact notoriously does, often arise from the inadvertence or carelessness of the magistrate or his clerk. If the justice were liable to a penalty, as above suggested, for taking a prisoner's confession on oath, he would clearly be entitled, if sued or prosecuted for such penalty, to show that, though the examination purported on its face to have been taken on oath, the prisoner was not in fact sworn; and no real danger could be apprehended, but, on the contrary, much benefit would accrue to the administration of criminal justice, if a similar course of proceeding were allowed, when the question was whether a confession was receivable or not. However, as before stated, the authorities in favour of rejecting examinations which purport to be upon oath, are so numerous and consistent, that, without the aid of the legislature, little hope can be entertained that a more satisfactory rule will be adopted in practice (t).

§ 651. Though the prisoner must not be sworn, yet where, being mistaken for a witness, an oath was administered to him, but, the mistake being discovered, the deposition was destroyed,—it was held that a subsequent statement made by him, after due caution from the magistrate, was clearly admissible (u). And, indeed, the

(s) B. N. P. 242.

(t) See cases cited ante, § 649, note (p). See also No. 57 of Law Mag. 13-19, where the anomalies in the present law of confessions are amusingly exposed. (u) R. v. Webb, 4 C. & P. 564, per Garrow, B.

R R

610

SWORN CONFESSIONS, WHEN ADMISSIBLE.

rule excluding sworn confessions seems strictly confined, at common law, to the case of a statement made by the party upon oath, while a prisoner under examination respecting the criminal charge (v). It is true that one or two decisions by Mr. Baron Gurney might be cited, which seem to extend the rule somewhat further, and to render confessions inadmissible, which have been made on oath to magistrates or coroners by parties, who, after being examined as witnesses, have themselves been committed for trial (w); but the authority of these decisions has been much shaken by subsequent cases, and they cannot be now safely relied upon as law.

§ 652. Thus, it has recently been held by the judges, that, on an indictment for forging a bill of exchange, depositions of the prisoner, which had been taken on oath before commissioners of bankruptcy, after the prisoner had been charged before the mayor with forging the bill, were admissible against him (x); and so also on the trial of an indictment for conspiracy, the answers in Chancery of the defendants, made on oath by them in a suit instituted against them by the prosecutor, have been received (y). An affidavit, too, has been given in evidence against a prisoner, which was sworn by him in a suit in Doctors' Commons (2); and depositions made by prisoners, when examined as witnesses against other persons on criminal charges, have several times been admitted (a). So, the testimony, given by a prisoner before a committee of the House of Commons, has been read against him on a criminal trial (b); though this case is of little authority on the subject under discussion, as the testimony could not have been given on oath (c). The case of R. v. Britton (d), which is sometimes cited as a decision conflicting with the above proposition, is in fact no

(v) See Joy on Confess. 62-68.

(w) R. v. Lewis, 6 C. & P. 161, per Gurney, B.; R. v. Davis, id. 177, per id.; R. v. Owen, 9 C. & P. 83, per id.; and see note (w) in 2 Russ. C. & M. 860. (x) R. v. Wheater, 2 Moo. C. C. 45; 2 Lew. C. C. 157, S. C.

(y) R. v. Goldshede, 1 C. & Kir. 657, per Lord Denman; R. v. Highfield, per Vaughan, B., cited 2 Russ. C. & M. 859.

(2) R. v. Walker, per Lord Ellenborough, cited by Gurney, B., in 6 C. & P. 162. (a) R. v. Haworth, 4 C. & P. 254, per Parke, J.; R. v. Tubby, 5 C. & P. 530, per Vaughan, B. (b) R. v. Merceron, 2 Stark. R. 366, per Abbott, J. (c) See per Lord Tenterden in R. v. Gilham, 1 Moo. C. C. 203. (d) 1 M. & Rob. 297, per Patteson and Alderson, Js.

PROPERTY FOUND IN CONSEQUENCE OF CONFESSION.

611

hostile authority, as the only question there determined was, that on an indictment against a bankrupt for not disclosing his effects under the commission, his balance-sheet, which was only admissible in the event of there being a valid commission, could not be given in evidence to prove the petitioning creditor's debt, as a part of the commission (d). On the whole it seems clear, that if a prisoner, on being examined as a witness, has consented to answer questions, to which he might have demurred as tending to criminate himself, and which, therefore, he was not bound to answer, his statement will be deemed voluntary, and, as such, may be subsequently used against himself for all purposes, unless he be protected by the special language of some statute.

§ 653. The Act of 9 Geo. 4, c. 54, § 2, affords an example of such a protection in the sister kingdom; for that Act, after empowering Irish justices to summon and examine witnesses touching any felony, or suspicion of felony, with which any person shall be charged before them, provides, "that no such examination shall subject the party examined to any prosecution or penalty, or be given in evidence against such party, save on any indictment for having committed wilful and corrupt perjury in such examination.” The English Larceny and Embezzlement Act (e) may also be cited, as providing by § 52, "that no banker, merchant, broker, factor, attorney, or other agent, shall be liable to be convicted by any evidence whatever as an offender against that Act, in respect of any act done by him, if he shall at any time previously to his being indicted for such offence have disclosed such act on oath, in consequence of any compulsory process of any court of law or equity, in any action, suit, or proceeding, which shall have been bonâ fide instituted by any party aggrieved, or if he shall have disclosed the same in any examination or deposition before any commissioners of bankrupt."

§ 654. The object of all the care which is taken to exclude confessions that are not voluntary, is, as we have seen (ƒ), to exclude testimony not probably true. But where, in consequence of

(d) Per Patteson, J., explaining that decision in R. v. Wheater, 2 Moo. C. C. 51. (e) 7 & 8 Geo. 4, c. 29, § 52. (ƒ) See ante, §§ 630, 631.

612

PROPERTY PRODUCED AT TIME OF CONFESSION.

information unduly obtained from the prisoner, the property stolen, or the instrument of the crime, or the bloody clothes of the person murdered, or any other material fact, is discovered, it is competent to show, that such discovery was made conformably with the information so obtained. The statement by the prisoner as to his knowledge of the place where the property or other article was to be found, being thus confirmed by the fact, is proved to be true, and not to have been fabricated in consequence of any inducement. It is competent, therefore, to inquire whether the prisoner stated that the thing would be found by searching a particular place, and to prove that it was accordingly so found; but it would not be competent to inquire whether he confessed that he had concealed it there (g). Lord Eldon, indeed, has laid down the rule somewhat more strictly, saying, in Harvey's case (h), that, where the knowledge of any fact was obtained from a prisoner, under such a promise as excluded the confession from being given in evidence, he should direct an acquittal, unless the fact proved would itself have been sufficient to warrant a conviction, without any confession leading to it. But the sounder doctrine seems to be, that so much of the confession as relates distinctly to the fact discovered by it may be given in evidence, as this part at least of the statement is proved to have been true (i).

§ 655. If the prisoner himself produces the goods stolen and delivers them up to the prosecutor, notwithstanding it may appear that this was done upon inducements to confess held out by the latter, there seems no reason to reject the declarations of the prisoner, contemporaneous with the act of delivery, and explanatory of its character and design, though they may amount to a confession of guilt (j). But whatever he may have said at the same time, not

(g) 1 Ph. Ev. 411; R. v. Warickshall, 1 Lea. C. C. 263; R. v. Mosey, id. 265, n., per Buller, J., and Perryn, B.; R. v. Lockhart, id. 386; R. v. Gould, 9 C. & P. 364, per Tindal, C. J., and Parke, B.; R. v. Thurtell, cited Joy on Confess. 84; R. v. Cain, 1 Cr. & Dix, C. C. 37, per Torrens, J.; Com. v. Knapp, 9 Pick. 496, 511.

(h) 2 East, P. C. 658.

(i) R. v. Butcher, 1 Lea. C. C. 265, n.; and see the cases cited in note (g),

ante.

(j) R. v. Griffin, R. & Ry. 151; R. v. Jones, id. 152.