is, that the examination of the defendant was after making a declaration according to the form in Schedule (W) of the 12 & 13 Vict. c. 106, which is tantamount to an oath, and that, if on oath, it would have been inadmissible. But in the cases referred to in support of this objection the oath had been improperly administered, without authority, and if the examination is taken under an oath administered by proper authority, there is no reason for saying that it is less likely to be true than if it had been without an oath or any similar solemnity. The next ground of objection is, that the examination was compulsory. It is a trite maxim that the confession of a crime, to be admissible against the party confessing, must be voluntary; but this only means that it shall not be induced by improper threats or promises; because, under such circumstances, the party may have been influenced to say what is not true, and the supposed confession cannot be safely acted upon. Such an objection cannot apply to a lawful examination in the course of a judicial proceeding. Then the defendant's counsel objects that in the course of this examination threats were used. The alleged threats, however, were merely an explanation of the enactment of the legislature upon the subject, and a warning to the defendant of the consequences which, in point of law, would arise from his refusing to give a true answer to the questions put to him. Finally, the defendant's counsel relies on the great maxim of English law, "Nemo tenetur seipsum accusare." So, undoubtedly, says the common law of England. But parliament may take away this privilege, and enact that a party may be bound to accuse himself, that is, that he must answer questions by answering which he may be criminated. This act of parliament, the 12 & 13 Vict. c. 106, creates felonies and misdemeanours, and compels the bankrupt to answer questions which may shew that he has been guilty of some of those felonies or misdemeanours. The maxim of the common law, therefore, has been overruled by the legislature, and the defendant has been actually compelled to give, and has given, answers shewing that he is guilty of the midemeanour with which he is charged. The accusation of himself was an accomplished fact; and at the trial he was not called upon to accuse himself. The maxim relied upon applies to the time when the question is put, not to the use which the prosecutor seeks to make of the answer when the answer has been given. If the party has been unlawfully compelled to answer the question, he shall be protected against any prejudice from the answer thus illegally extorted; but a similar protection cannot be demanded where the question was lawful, and the party examined was bound by law to answer it. At the trial, the defendant's written examination, signed by himself, was in court, and the reading of it as evidence against him could be no violation of the maxim relied upon. The only argument, as we conceive, that can plausibly be put for the defendant is, that there is an implied proviso to be subjoined to the 117th section, viz., "That the examination shall not be used as evidence against the bankrupt on any criminal charge." To make it evidence there could be no necessity for any express enactment for that purpose, and an implied proviso appears all that can be contended for. But by this interpolation we may be more likely to defeat than to further the intention of the legislature. Considering the enormous frauds practised by bankrupts upon their creditors, the object may have been in an exceptional instance to allow a procedure in England universally allowed in many highly civilized countries. Suppose section 117. had begun with a preamble reciting the frauds of bankrupts, and the importance of having these frauds detected and punished, it would be difficult to say that the legislature intended that no use should be made of the examination except for civil purposes. When the legislature compels parties to give evidence accusing themselves, and means to protect them from the consequences of giving such evidence, the course of legislation has been to do so by express enactment, as in the 6 Geo. 4. c. 129. s. 6, and the five other instances adduced in the argument on behalf of the prosecution. We, therefore, think we are bound to suppose that in this instance, in which no such protection is provided, it was the intention of the legislature to compel the bankrupt to answer interrogatories respecting his dealings and conduct as a trader, although he might thereby accuse himself, and to permit his answers to be used against him for criminal as well as civil purposes. COLERIDGE, J.-I have the misfortune in this case to differ from the rest of the Court, and, entertaining unfeignedly a great distrust of my own opinion, I should gladly surrender it to theirs if I could divest myself of the belief that the judgment, which I venture to think erroneous, goes also to impair a maxim of our law as settled, as important, and as wise as almost any other in it, and consequently that it is a duty to enter my protest, however ineffectually, against it. The maxim to which I allude will, of course, be understood to be that which is familiar to all lawyers-that no person can be compelled to criminate himself. It would be wasting time to support this maxim by authorities, or to dwell upon its importance. The judgment from which I differ does not proceed upon a denial or disparagement of it, but on some such argument as this-every lawful examination of a party charged, conducted according to law, is admissible evidence against him;-this examination was lawful by statute, and has been lawfully conducted; therefore this examination is admissible evidence against the prisoner. Now, I deny the major premiss of this syllogism. I say that is not true in the general and unqualified way in which it is stated. I say that an examination may be lawful for certain purposes, and be lawfully conducted with those purposes in view, and yet not be admissible in evidence against the party charged, when upon his trial on a criminal charge, even if that charge be founded on the matters before lawfully inquired into. We have here, on the one hand, an undisputed and indisputable maxim of the common law, that no man shall be bound to accuse himself; on the other, we have a statute, not in terms professing to abrogate this maxim, but authorizing Commissioners of Bankrupts to examine a bankrupt "touching all matters relating to concealment of his lands, tenements, goods, money, or debts," and subjecting him to imprisonment indefinitely without bail if he refuse to answer. The same statute makes it a felony, punishable with transportation for life, for a bankrupt to conceal any part of his real or personal estate. to the value of 10l. with intent to defraud his creditors. How, then, upon general principles are we to proceed in a seeming conflict between the common law and these provisions of the statute? Not, I apprehend, by assuming at once that there is a real conflict, and sacrificing the common law, but by carefully examining whether the two may not be reconciled, and full effect be given to both. And for this purpose it is most material to ascertain with what intent and for what object the bankrupt is compellable to undergo this examination, and to answer the questions put. If, for example, it should appear that he was to be examined with a view of procuring evidence against him on a criminal charge instituted or to be instituted, whatever one might think of the justice of such an enactment, it would be idle to contend that it had not abrogated pro tanto the common law. If, on the other hand, it should be clear that the examination was authorized solely for the better discovery of the bankrupt's estate, and the bringing it into distribution among his creditors; that it would be unlawful to examine him for any other purpose; that he might lawfully refuse to answer any questions put merely for the purpose of extracting evidence against him on a criminal charge,-then I conceive that you would be far advanced on your way to a conclusion which will prevent the statute from breaking in upon the common law. Then I think the Judge who is trying the prisoner ought to say, the examination which could not have been instituted for the purpose of procuring evidence against the prisoner must not be used as evidence against him now; that which cannot be done directly must not be done indirectly; the answer which the prisoner could not have been compelled to give if the question had been put in order to use that answer to-day must not be used today, though the question was not so put, but ostensibly on a ground which prevented him from then demurring to answer it. The examination was lawful only for a special purpose, and in derogation of the common law and the principles of justice. It is a fraud upon that common law and those principles which no Court will lend itself to, even if the examination were boná fide instituted for the prescribed purposes, to use the answers afterwards for a totally different, and in itself unlawful, purpose. Now, I suppose it will not be denied that the bankrupt's examination is purely what I have here supposed-for the purpose of getting at his estate, and ascertaining his dealings so far as may be necessary for regulating the decision of the Commissioners as to his certificate. Beyond these limits they cannot travel; within them they are not directly criminal Judges, nor ancillary to those who are. They may examine the bankrupt, and he can only refuse to answer on peril of imprisonment as to all matters touching his property. And in so doing it will be scarcely possible, or impossible, in a vast number of cases, not to elicit evidence which may tend to criminate him. But then he is not before a criminal court, nor on his trial for any of the offences which he so discloses incidentally. He does not need the protection of the common law there, and nothing in the statute expressly takes that away, or shews that it was intended to deprive him of the benefit of it elsewhere. The two cases which have been mentioned by my Lord illustrate the principle for which I contend, and they shew the clear opinion of Lord Eldon and Lord Lyndhurst that the stringent powers of the Commissioners could not be allowed to violate what the former called "one of the most sacred principles in the law of this country, that no man can be called on to criminate himself if he choose to object to it." In that case, Ex parte Cossens, a petition was addressed to Lord Eldon praying that the petitioners might be allowed to examine a bankrupt fully touching his estate and effects, and "particularly whether he or any one in trust for him or for his benefit has received, or is to receive, any sum or sums of money, or other valuable consideration for having resigned, or as an inducement to resign, the office of town clerk of the city of Bristol." He dismissed the petition, and in the course of a very valuable judgment he drew the line clearly and distinctly, upholding the power to inquire into all receipts of money or securities which could be available to increase the estate; but when the question came to this, "Did you through an illegal act acquire either the one or the other?" he says he should have told the bankrupt, as every Judge in the country, he says, used to do, that he was not bound to answer. Suppose, then, that a bankrupt, having had the question put to him, and demurred to it, had been compelled to answer, is it to be believed that Lord Eldon would have received the answer to prove the case for the prosecution of the bankrupt for the offence so disclosed? In Ex parte Kirby (11), a bankrupt demurred to a question, "because it might expose him to a criminal prosecution." The Commissioners overruled the objection, and committed him. He came up on habeas corpus. The case was argued at great length, and very learnedly and ably, by Mr. Collinson and Mr. Rose. The former went through all the cases, and they were fully discussed between him and Lord Lyndhurst, who finally discharged the bankrupt. He said "It is by no means clear that the inquiry would be beneficial to the bankrupt's estate; but even if it was likely to prove advantageous, there is not any authority to shew that the Commissioners may dispense with the general rule of law that no person can be compelled to criminate himself." These cases go very far to shew that even before the Commissioners the statutes do not intend to destroy the common law maxim. But the present case is à fortiori to these. I admit that it must be very often difficult for the Commissioners to draw the line; for it is clear that the bankrupt must answer as to all circumstances respecting his property, and the facts he so discloses may raise inferences against him-he must answer or abide the consequences. But the difficulty would be incalculably lessened, and the law much more effectually administered, as regards the estate, if you confine the examination to its legitimate object, and not examine the bankrupt with the terror of making evidence against himself at the Old Bailey by the answers he gives. It must not be supposed that this is a new question, arising in respect of any new powers conferred by the Bankrupt Consolidation Act. Under the 5 Geo. 2. c. 30, concealment by a (11) 1 Mont. & M'Ar. 212. bankrupt to the amount of 201. was felony without benefit of clergy, and the Commissioners had the same power of examining him. Was a capital conviction ever heard of, or could it have been tolerated on evidence so extorted from the prisoner himself? It is a question, too, of wider extent than may seem at first sight; not merely as regards the bankrupt it may arise, but also as regards his wife, or any witness who has had dealings with him. All and each of these may be examined as to matters which may implicate them in some criminal transaction-subject them to some criminal charge. They cannot refuse to answer if the questions relate to the bankrupt's estate, and the rule which the Court is about to lay down must equally apply to them. It is something, I think, to be considered, that with the bankrupt law substantially in its present state for centuries the question now for decision has never come to be decided before. If examinations have not been tendered in evidence it is intelligible; but why have they not been? After the decision of this Court, there is no hazard in predicting that a short mode will be found of proving cases against bankrupts; and, be it observed, a different mode from that in which offences are proved against other criminals. And how will the proof be procured? I wish to make no reflections against Commissioners of Bankruptcy-men admirable, many of them, for the zeal, learning, and integrity with which they discharge very important and some times very difficult duties-but I object to the evidence for the prosecution being made up by this new and un-English mode, the compulsory cross-examination of the prisoner, apart from the Judge and the jury who are to try him-he very often wholly unprotected-even under the presidency of a I Commissioner. Even so, it seems to me highly objectionable. But what if there be no Commissioner? Since the reservation of the present case I had to try a bankrupt for mutilation of his books. His examination was tendered in evidence. said I should receive it and reserve the points, but I was desirous of some preliminary inquiry, and it turned out that the persons present were the assignee's solicitor, his clerk, and the bankrupt. The Commissioner's chair was there, but it was empty. This was not proper, but it was tolerable if the only object was to ascertain from the bankrupt where his property was to be found; it was intolerable, and I am certain no Commissioner would have been found guilty of such neglect of duty, if it had been considered that the purpose or the result of the meeting had been or might be to extract the evidence upon which alone, a few years ago, the bankrupt might have been hung-on which now he may be transported for life. The exposure and punishment of fraud may be purchased too dearly. I think they are if, in order to arrive at them, we break down what I venture to call, after Lord Eldon, a sacred principle of our law. No doubt the statute must be obeyed-I do not seek to evade it -it is a wise statute if you confine it to the objects for which it was made; and it may be, in my opinion, strictly obeyed within those limits, and no violence be done to the common law. I regret the great length to which my remarks have run. It had unfortunately escaped me that judgment was to be given this morning, and I have really not had the time I could have wished properly to arrange or compress them. In my opinion the bankrupt's examination was not admissible. Judgment affirmed. INDEX TO THE REPORTS OF CASES CONNECTED WITH THE DUTIES AND OFFICE OF MAGISTRATES: FROM TRINITY TERM 1855, TO MICHAELMAS TERM 1856. ACCOMPLICE. See Evidence. ACTION-When maintainable against guardians of AFFIDAVIT-Erasures. See Bankrupt. The right of appeal given by section 25. of APPRENTICE-An allowance of indenture of appren- See Coin. Indictment. BANKRUPT-On indictment against a bankrupt for copy an indorsement purporting to state when On trial of indictment for not surrendering, Admissibility of bankrupt's examination The enforced answers of a bankrupt, under Under section 71. of 4 & 5 Will. 4. c. 76. a |