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LEE, C. J.-This is a new case. Attachments are a new practice. I remember the first motion for them. It was then agreed, that the same restrictions should be used in attachments as in actions on the 8 Eliz. one of which is, that a tender of expences should be made at the service of the subpoena. In this case, Yerburgh has not been subpænaed regularly, so as to subject him to 8 Eliz. In order to subject him to an attachment, you must shew him guilty of a contempt of this Court. This man happened to be in Court, but was not brought there as a witness. Whether he was a material witness, or no, is not significant. I am of opinion, this is not a contempt.
Wright, J.--In Chapman and Pointon (a), P. 14 Geo. 2, two guineas were tendered to an evidence on a subpæna. The Court thought it not sufficient, so would not grant an at*tach- [ ment, though the witness would not come. Attachments are not yet granted in C. B. A person not properly subpænaed is to be looked upon only as a stander by; and it is no contempt of the Court of Nisi Prius, for a stander by to refuse to be examined; much less of this Court. Denison and FOSTER, Js., accordant.
The Rule discharged (6).
THE KING v. WHITMORE.--The King v. Dawes. THESE were two young students of Oxford, convicted on the Judgment for evidence of one Blacow, for speaking treasonable words in the tre
words. street of Oxford on the 14th of February preceding, (on an information filed by the Attorney-General ex officio), for which crime they had been punished by the Vice Chancellor in an academical way. They were now sentenced to pay five nobles a-piece, to be imprisoned for two years, to find security for the good behaviour for seven years, themselves in 5001. each, and two sureties in 2501., to be imprisoned till the fine was paid and security found; and to go round immediately to all the Courts in Westminster Hall, with a paper on their foreheads denoting their crime. Which punishment was strictly put in execution.
The King v. Dr. PURNELL.
S. C. 1 Wils. 239. THE defendant was Vice Chancellor of Oxford; and the At- On an informatorney-General had ex officio exhibited against him an infor- tion against a mation, for not taking the deposition of Blacow the evidence, co and for neglect of his duty both as Vice Chancellor and justice misdemesnor, of the peace, in not punishing Whitmore and Dawes, who had the Court will, spoken treasonable words in the streets of Oxford. The de. not grant and
of a on for a
The King fendant appeared to the first information, upon which a noli
*prosequi was entered, and a second filed, to which also the de
LL. fendant appeared and pleaded; and a trial at bar was appointed [ *38 ]
November 21, but it was countermanded, and a new day, viz.
February 6th was afterwards appointed. And now, the last to inspect the day of the Term, the Attorney, without any affidavit, moved books of the corporation to fur- for a rule directed to the proper officers of the University to nish evidence. permit their books, records and archives to be inspected, in
order to furnish evidence against the Vice Chancellor. This was moved as a motion of course for a peremptory rule, on a suggestion that the King, being visitor of the University, had a right to inspect their books whenever he thought proper. Notice of motion was however given the night before at nine o'clock, and it was opposed by Henley and Evans. And the Court, being of opinion it was not a peremptory motion, only granted a Rule to shew cause.
Ail. TERM, In the next Term, Mr. Wilbraham, standing counsel for the 22 GEO. 2.
University, shewed cause. That the rule was made on no affidavit: that it was drawn in very general terms, (to inspect books, records, and archives)-Records, if any, may be seen
elsewhere. Archives cannot be inspected but by a figure, [ *39 ] *continens pro contenta. But this is a case of too much concern,
to stand upon form. The principal case is, whether on a prosecution of a public officer for a supposed misdemesnor, the Court ought to grant inspection of the public books of a corporation. The rule is on Dr. Purnell himself. Nemo tenetur seipsum accusare. The law will not tempt a man to make shipwreck of his conscience, in order to disculpate himself. In Chancery, a man may demur, if on the face of the bill it appears, that the matter to be discovered will affect the defendant in a criminal way. It will be said, the Court usually grants rules to inspect public books (a). True, but then it is usually when franchises are contested, and the like; when inspection of those books are the only evidence, and the corporation (6) are considered only as trustees, just as lords of manors (c) are, of the public evidences belonging to the manor. But in no case has the Court ever interposed in a criminal prosecution to grant such a rule, and force such inspection. Many indeed have been granted to inspect poor's rates (d); but those
(a) See Young v. Lynch, ante, 27; Com. Dig. Evidence (C. 2).
(6) Corporation books are open to the members of the corporation, as court rolls are to the tenants of the manor; R, v. Fra. ternity of Hostmen, 2 Stra. 1222, and see Mr. Nolan's note, ibid.; Hodges v. Atkis, 3 Wils. 398, and post, 877; Anon. 2 Ves. Sen. 620. By 32 Geo. 3, c. 58, s. 4, the officer having the custody of the corporation records is to permit any member thereof to inspect the book of admission of freemen, &c. on penalty of 1001. As to this statute, see Davies v. Humphreys, 3 M. & S. 223. But this right of inspection is confined to members of the corporate body.
The book of admission of freemen is open to inspection, during elections, by 3 Geo. 3, c. 15, s. 4; Schuldham v. Bunniss, 1 Cowp. 192.
(c) Where the lord of a manor has refused the inspection of the court-rolls, &c. of the manor, the Courts will grant a rule for that purpose of course : but this privilege is confined to the tenants of the manor ; Roe v. Aylmer, Barnes, 236 (8vo. ed.); Hobson v. Parker, Id. 237; R. v. Shelley, 3 T. R. 141; R. v. Lucas, 10 East, 235; R. v. Tower, 4 M. & S. 162; Addington v. Clode, post, 1030; Folkard v. Hemet, post, 1061.
(d) See Allan v. Tapp, post, 850, ,
are public evidences which every body has a right to. Was The King there never any prosecution carried on with the same spirit as Dep this? Why then are no examples produced ? By the same = reason every person indicted might be obliged to shew, whether he had any evidence against himself. In Bradshaw qui tam v. Philips, A. D. 1735, in an action for bribery, motion was, to inspect the books of a corporation, to prove the defendant a freeman. Hardwicke, C. J., denied the rule, because the plaintiff was a stranger. This case is much stronger. It is a precedent of the first impression. There seems to be a general want of evidence; but it is to be hoped, there is no other view than for evidence in this particular case. A hundred cases may be shewn where such rules have been granted in quo warranto's (e), &c. but none in criminal cases. [The Attorney “ mentioned K. and Burkins, 7 Geo. 1, which was an indictment at a borough sessions, removed into B. R. by certiorari. Court said, the defendant might have a rule on the clerk of the peace, to have a copy of the names on the back of the indictment.”] This is by no means a case. The indictment is a public record; he might have had it without a rule (f).
*Mr. Henley on the same side.—This is a rule of the greatest [ *40 importance to the most respectable body in the nation. It gives authority to the lowest agent of the Crown to rummage the MSS. of the University. One rule, in applications of this kind, is, that the person applying has an interest (g) in the books and papers, so that in justice he is at all times entitled to have recourse to them. Another, that the person in possession is a trustee for the person applying (as a lord of a manor, &c.), and then the trust must be the subject in dispute; the suit must be about land in the manor, and averred by affi. davit so to be. So corporations are the trustees and repository of the common franchises, and there is no instance of such a rule against a corporation, but where the franchise has been disputed, as on mandamus or quo warranto. The present rule is on an information against a Vice Chancellor and justice of peace. The Crown commences a prosecution against an individual of the University, and therefore desires to inspect the records of the University. By parity of reason, on an indictment against a citizen of London, they might inspect the records of the city. But it is suggested, that the King is visitor, and
(e) See R. v. Babb, 3 T. R. 579.
(S) It does not appear whether the offence in R. v. Burkins was a misdemeanor or a felony: probably the former, in which case the defendant is entitled to a copy of the record as a matter of right. In felonies the defendant can only have a copy of the indictment by leave of the Court: See Morrison v. Kelly, post, 385, and cases there cited. Where an information was filed against an officer upon the report of a board of inquiry, the Court of K. B. were of opinion, that the defendant had no right to have an inspection of that report: and Buller, J., said, that the practice on com
mon law indictments, and on informations on particular statutes, shews it to be clear, that this defendant is not entitled to inspect the evidence, on which the prosecution is founded, till the hour of trial; R. v. Holland, 4 T. R. 691: and see Home v. Bentinck, 2 Brod. & B. 130.
(g) Admitted in Atherfold v. Beard, 2 T. R. 614-15; Talbot v. Villebois, cited by Buller, J., in 3 T. R. 142: Bishop of Hereford v. Duke of Bridgewater, Bunb. 269; Attorney-General v. City of Coventry, Id. 290; and see the judgment of Mansfield, C. J., in Bateman v. Phillips, 4 Taunt. 162.
therefore entitled to a rule. I question the fact. The Court will require to be well satisfied of that. But, if so, 'tis a strong reason against granting the rule, for then the Crown may enforce its demands in a visitatorial way. Suppose the Crown has a general interest in the books of a corporation; that will not entitle them to an inspection, except the books are the subject of the dispute. Crew qui tam and Blackburn, H. 8 G. 2(h), an action for interfering in elections of members of Parliament, being a clerk of the Post-office: The Court would not grant a rule to inspect the Post-office books (though public books), because the cause did not concern them. Benson and Cole, M. 22 G. 2; motion to inspect Custom-house books, to prove the plaintiff in an insurance cause had no interest: urged that they were public books: refused, because they were not the subject of dispute (i). These were civil actions; the present otherwise. The avowed design of this motion being to furnish evidence, some precedent will be necessary; especially as a very bad use may be made of such a rule, when the University is much out of favour with some people.
* Mr. Ford, on the same side.— The College of Physicians v. Dr. West(K), H. 2 G. 1; action for practising sans licence; motion to inspect the public books of the college; denied, because the defendant is a stranger to the college. Cox and Copping, 5 Mod. 395(l); dispute about the glebe: Court would not grant rule to inspect the churchwardens' books; because it was a private dispute. There is no reason to grant this inspection, because the Vice-Chancellor is a justice. Is it because he is Vice-Chancellor? Why?. Not on account of his supposed visitatorial power; for in Dr. Walker's Case (m), the Court quashed a rule because they would not take upon themselves to act the part of visitors. The Court will not assist visitors, but only in support of their visitatorial authority. The visitatorial authority is not now in question; the Vice-Chancellor is prosecuted for a supposed offence at common law. If a witness has a question put to him that may affect himself, the Court will not oblige him to answer it (n). Qu. and Mead, 2 Lord Raym. 927; defendant was an attorney, and with others incorporated by act of Parliament as surveyors of highways, &c. Action against him, for not taking the oaths to qualify. Motion
(h) Reported as Crewe qui tam v. Saun, may shew his own infamy, or tend to deders, 2 Stra. 1005.
grade his character; Cooke's Ca. 4 St. Tr. (i) See also Abery v. Dickenson, Say. 748, 1 Salk. 153; R. v. Lewis, 4 Esp. 225; R. 250.
Macbride v. Macbride, Id. 242; Dodd v. (k) Gilb. Rep. B. R. 134.
Norris, 3 Camp. 319; R. v. St. Mary's, (1) 1 Ld. Raym. 337. S. C.
Nottingham, 13 East, 57, n. (a): but see (m) Ca. temp. Hard. 212.
R. v. Edwards, 4 T. R. 440, and also (n) A witness is not compellable to an. Harris v. 7'ippet, 2 Camp. 637; R. v.Watswer a question, the answering of which son, 2 Stark. R. 149—or that might submay expose him to penalties, punishment, ject him to a forfeiture of his estate; or a criminal charge; Sir J. Freind's Ca. 1 Phillips' Ev. 278 (ed. 1822). But by 4 Harg. St. Tr. 605-6; Ld. Macclesfield's 46 G. 3, c. 37, he cannot refuse to answer Case, 6 St. Tr. 649; R. v. Ld. G. Gordon, a question, the answering of which may 2 Doug. 593; Paxton v. Douglas, 16 Ves. tend to establish, that he owes a debt, or Jun. 239; Cates v. Hardacre, 3 Taunt. 424; is subject to a civil suit. Maloney v. Bartley, 3 Camp. 210; or that
to inspect the corporation books; but denied, because they The King would not force a man to produce evidence against himself. K. and Lee, M. 17 G. 2; information against defendant as
DR. PURNELL. overseer, for making rate without churchwardens. Rule obtained by surprise, to inspect papers: not obeyed. Motion against Lee for an attachment. LEE, C. J., cited Bradshaw and Philips; Court refused to grant attachment, enlarged the rule, and it was dropped. The K. and Burkins only shews the tenderness which the Court always shews for persons under prosecution, and was to let him know his accusers. If the present defendant has evidence in his custody, and refuses to obey the rule, an attachment must issue; which would be as strange, as to grant one against a man, for not confessing his crime.
Mr. Evans on the same side.-* Had this been an informa- [ *42 ] tion for exercising the office of Vice-Chancellor, motion might have been regular. In ecclesiastical jurisdictions, they used to compel a man to furnish evidence against himself: but by stat. Car. 2, oaths ex officio are taken away. On indictment for coining, the Attorney might as well move, to have a prisoner discover all his correspondence. 'Tis true, the crimes are less, and the punishment less; but the barrier of liberty is the same. If this rule be granted, the Court of K. B. would be no longer a court of justice, but an aid to an inquisition of state. This is an information ex officio, and all legal stops should be put to such informations. This Court sits to hear, not to furnish evidence. Mr. Morton, on the same side would not repeat.
Ryder, Attorney-General, in support of the rule. This prosecution is out of favour to the University; to keep up a spirit of religion and loyalty there. Hard, that the University should interest themselves, to vindicate a member of their body that is under prosecution. If the prosecution be just, or unjust, it cannot hurt the University. Motion relates only to the public records, not to MSS. letters, &c. therefore cannot be so prejudicial as is represented. The intent is to see the statutes of the University, to which the motion shall be confined. The information is for not taking depositions against an enormous crime, as Vice-Chancellor and as justice of the peace: and these statutes direct the conduct of the Vice-Chancellor. The Court grants motions of course to inspect public books. It is as reasonable that public records should be produced for public justice, as private papers for private justice. It is not desired that the Vice-Chancellor but the public officer should produce them: should he prove to be the public officer, that is no reason against the motion; for it does not respect him as * defendant, [ "43 J but as public officer. The public is interested in the University statutes. We do not apply on behalf of the King as visitor, but as guardian of the public peace. In K. and Burkins, there was a rule of this kind made in a penal prosecution; a rule on a public officer, keeping a public record, for an inspection in a criminal prosecution. Informations in nature of quo warranto