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The People against McMahon.

Warickshall's case; Rex v. Lockhart, 1 Leach C. C., 386; Regina v. Gould, 9 Car. & Pa., 364.)

The doctrine of the American courts is the same. In the case of Commonwealth v. Knapp (9 Pick., 496), MORTON, J., speaking of the grounds upon which the statements of prisoners are excluded as not voluntary, after remarking that it is not because their admission would be a breach of good faith, nor because they have been illegally extorted, says: "but the reason is that, in the agitation of mind in which the party charged is supposed to be, he is liable to be influenced by the hope of advantage or fear of injury to state things which are not true."

It scarcely needed this array of authority to prove that all extrajudicial statements and confessions of an accused party, when not regarded as voluntary, are excluded because they cannot be relied upon as evidence of guilt, and for no other reason. No dictum to the contrary can be found. Now, the inquiry I would make is this: Are such statements, when made in the course of some judicial proceeding, rejected on totally different grounds? The supposition that they are, has given rise to all the difficulty which exists on this subject.

It will be seen that the words used to test their admissibility are the same in both cases: was the statement voluntary? This is the inquiry, as well when it was made upon a judicial examination, as when it was not. If made under oath, by the party charged, upon a judicial inquiry as to the crime, it is rejected as not being voluntary. The use of the word voluntary in this connection, has suggested the idea that it is the compulsory nature of the oath, which prevents the statement from being received; and hence, that its rejection is based, not upon the uncertain nature of the evidence, but upon a supposed violation of that principle of the common law which is embodied in the maxim, nemo tenetur accusare se ipsum. But the law, I apprehend, is not so wanting in that precision of language which is essential to

The People against McMahon.

every science, as to use the same word in relation to the same subject in two such different senses. This question is not one to be passed slightly over. On the contrary it underlies the whole law on this subject, and must be determined before any court can give an intelligent judgment, in a case involving new circumstances.

The case of Wheater (2 Moody C. C., 45), affords a striking illustration of the difficulty which arises from the different interpretations of the word voluntary. This being a leading case, and one which is supposed to have settled the law on this subject, it having been carried before the fifteen judges, is deserving of special attention. The prisoner had been convicted of the forgery of an acceptance to a bill of exchange, which, with other forged bills, had been found in his possession. His father, through whose hands the bill had passed, having become bankrupt, the prisoner had been examined on oath before the commissioners in regard to all the bills. Upon the trial his examination before the commissioners had been given in evidence against him, and the question was whether it was properly received. He had previously been discharged by the lord mayor upon a complaint made before him for the forgery.

The argument of Mr. DUNDAS for the prisoner is worthy of notice for its alternation between the two positions that the evidence should have been rejected as unreliable, and because it was compulsorily obtained. He evidently hesitated as to the true interpretation of the word voluntary, as applied to statements made under oath, but inclined to that for which I contend; as plainly appears from his language. After asking whether it could be said "that the examination was voluntary," he adds: "It is submitted that he was under duress, his mind disturbed, by the extraordinary situation in which he found himself placed, and called on in the midst of these trying circumstances, to weigh and consider the nature of each question, and the consequences of his answers, and if so, the law cannot estimate the exact degree of influence of

The People against McMahon.

the duress upon the human mind." Again he says: "The prisoner knew he was under an imputation of felony, and his mind was in that plight, that he was not in a situation to resist any impression made on it."

This shows that it was the disturbing effect of the oath upon the prisoner's mind, taken in connection with the consciousness that he was suspected of the crime; and not its compulsory nature, upon which the counsel mainly relied for excluding the evidence.


The court also was embarrassed by the equivocal meaning of the term voluntary, and it was this embarrassment which caused the dissent of Lord ABINGER and Mr. Justice LITTLEThis appears clearly from the case. Lord ABINGER said in the course of the argument: "I understand, if a prisoner's examination be on oath, it shall not be received in evidence, without reference to a duress or threat. I see no reason for it; in principle the answer may be quite voluntary."

This shows it to have been Lord ABINGER's impression, that it was the compulsory nature of the oath which excluded the evidence. He was perfectly consistent, therefore, in dissenting, as he did, from the opinion of the majority of the the court; for certainly, so far as its compulsory character was concerned, there could be no difference between the oath administered by the commissioners, and one which might have been administered by the lord mayor, upon the examination of the prisoner before him, when charged with the forgery. The prisoner would have been equally at liberty in either case to decline answering any question which might tend to criminate him. It is not surprising, therefore, that Lord ABINGER should have remarked, that he could "see no reason" for the rule to which he adhered. As understood by him there certainly could be no reason for it.

It is apparent, too, that LITTLEDALE, J., who also dissented, acted under a similar impression as to the foundation of the rule; because the case shows that, upon a previous

The People against McMahon.

occasion, he had gone so far, even in a civil case, as to hold that an admission "obtained under a compulsory examination" before commissioners in bankruptcy, was not evidence of an account stated.

Of the fifteen judges thirteen were present at the hearing of this case, and all, except ABINGER, C. B., and LITTLEDALE, J., were of opinion that the evidence was properly received. Had the majority concurred with Lord ABINGER in the assumption that the objection afforded by an oath, in such cases, arises, not from its tendency to disturb the mind of the prisoner and thus weaken the force of the evidence, but purely from its compulsory character, they must have decided the other way.

It may well be doubted whether that celebrated maxim, nemo tenetur prodere se ipsum, has itself any other substantial foundation than the uncertainty and doubt which must ever attend all extorted confessions. If deserving of the commendation it has received, it must, I think, be based upon the idea of protection to the innocent, and not that of mercy to the guilty. But whatever may be the truth on this subject, I hold it to be clear, that when the law rejects a disclosure made under oath by a person charged with crime, it does so, not because any right or privilege of the prisoner has been violated, but because it is deemed unsafe to rely upon it as evidence of guilt. This is strongly to be inferred from that class of cases in which it has been held, that although a confession has been obtained by stratagem, by fraud, by violation of confidence or even of an oath, still, if reliable, the law will avail itself of it.

In Burley's case, the prisoner was told falsely, and as an artifice, that his accomplices were in custody, in consequence of which he confessed; and this confession was received in evidence. (Joy on Con., 42.) In Rex v. Derrington (2 Car. & Pa., 418), the prisoner, while in jail, having written a letter to his father, asked the turnkey to put it into the post, which he promised to do; but, instead of this, the turnkey delivered

The People against McMahon.

it to the magistrates. The letter was offered in evidence and objected to, but admitted. So, in Rex v. Sraw (6 Car. & Pa., 372), where the person to whom the confession. was made had taken an oath that he would not reveal it; this was held to be no objection to the evidence. If the law was scrupulous about the means of arriving at the truth would it have received such evidence? Is fraud more honorable than force? These cases show this: that the question always is, whether the evidence can be relied upon, and not how it was obtained.

If we look through the authorities by the light of this rule, we shall find them, with few exceptions, harmonious and consistent. It is unnecessary to refer farther to any cases except such as relate to judicial examinations, under oath. The first distinction in relation to such examinations to be deduced from the cases is, that the statement or confession will not be rejected on account of its having been made under oath, unless that oath was administered in the course of some judicial enquiry in regard to the crime itself, for which the prisoner is on trial.

This distinction may be regarded as fully established, by the case of Wheater already referred to. But the case of Rex v. Merceron (2 Stark, 366) decided by Lord TENTERDEN is to the same effect. The prisoner was a London magistrate, and was indicted for misconduct in office. Upon the trial his examination before a committee of the House of Commons, appointed to enquire into the police of the metropolis, was offered in evidence by the prosecution. This was objected to, but admitted notwithstanding his appearance before and examination by the committee was compulsory. The only ground for distinguishing between this case and those where the examination relates directly to the crime would seem to be, the greater mental agitation supposed to exist in the one case than in the other.

Another rule which may now be regarded as settled is, that the statement, although made under oath, and upon a judi

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