1791. LAMBE'S MR. JUSTICE GROSE, at the ensuing Summer Assizes for the county of Surry, delivered the opinion of the Judges to the following effect :-The question referred to the opinion of THE TWELVE JUDGES was, whether the examination containing a confession of the prisoner's guilt, not being signed either by the prisoner or the magistrate, is admissible evidence in point of law. The general rule respecting this species of testimony is, that a free and voluntary confession made by a person accused of an offence is receivable in evidence against him, whether such confession be made at the moment he is apprehended, or while those who have him in custody are conducting him to the magistrates, or even after he has entered the house of the magistrate for the purpose of undergoing his examination. But in the present case, the confession of the prisoner was made not only in the presence of the magistrate, but while he was undergoing a judicial examination; which examination was regularly reduced into writing, read deliberately over to the prisoner, and admitted by him to be true; but which, notwithstanding such admission, he refused to sign. On these circumstances it was contended at the trial, that as this confession was made on an examination taken in pursuance of the statutes 1 & 2 Philip and Mary, c. 13. and 2 & 3 Philip and Mary, c. 10. it could not be received in evidence, because it was not signed; those statutes impliedly requiring, that such examination should be so authenticated. It is therefore important to the true determination of the present question to inquire, FIRST, Whether such an examination or paper-writing as this is would have been admissible evidence previous to the passing of those statutes? and SECONDLY, if it be admissible at common law, whether those statutes have destroyed its admissibility on account of its not being signed either by the magistrate or the prisoner? FIRST, then, to consider this question as it is governed by the rules and principles of the common law. Confessions of guilt made by a prisoner to any person at any moment of time, and at any place, subsequent to the perpetration of the crime and previous to his examination before the magistrate, are at common law admissible in evidence as the highest and most satisfactory proof of guilt, because it is fairly presumed that no man would make such a confession against himself, if the facts confessed were not true (1). It may however be said, that this rule only applies to confession by parol, and not to confession, as in the present case, reduced into writing and afterwards admitted by parol to be true; but surely, if what a man says, though not reduced into writing, may be given in evidence against him, a fortiori what he says, when reduced into writing, is admissible; for the fact confessed being rendered less doubtful by being reduced into writing, it is of course intitled to greater credit; and it would be absurd to say, that an instrument is invalidated by a circumstance from which it derives additional strength and authenticity: and for this reason it is clear, that the present confession having been taken by a magistrate under a judicial examination, can be no objection to receiving it in evidence, for it gains still greater credit in proportion to the solemnity under which it was made. The conclusion from these observations is, that at common law every fact which may be proved against a prisoner by parol testimony, may also, when reduced into writing and admitted by the prisoner, be proved by the paper containing the written evidence of such fact. SECONDLY, It remains to consider, whether this paperwriting, which is clearly receivable in evidence at common law, is rendered inadmissible by the statutes 1 & 2 Philip and Mary, c. 13. and 2 & 3 Philip & Mary, c. 10. The statute 1 & 2 Philip and Mary, c. 13. recites, That it was ordained by the statute 3 Hen. 7. c. 3. that no prisoner arrested for felony should be bailed by one Justice, but by the whole Justices, or at least two of them; but that, since the making of the said statute, one Justice of the Peace, in the name of himself and one other of the Justices' companions, not making the said Justice party or privy unto the case wherefore the prisoner should be bailed, had oftentimes, by sinister labour and means, set at large the greatest offenders; and, to hide their affection in that behalf, had signed the cause of their apprehension to be but only for suspicion of felony-and then it enacts, "That no Justice or Justices of the Peace shall let 1791. LAMBE'S (1) Hard. 139, 1791. LAMBE'S to bail or mainprize any such person or persons which for any offence or offences by them, or any of them committed, be declared not to be replevied or bailed by the statute of sEdw.1.c.15. Westminster the first.”—AND THAT " Any person or persons arrested for manslaughter or felony, or suspicion of manslaughter or felony, being bailable by the law, shall not be let to bail or mainprize by any Justices of the Peace, if it be not in open session, except it be by two Justices of the Peace at the least, the same Justices to be present together at the said bailment or mainprize, which bailment or mainprize they shall certify in writing, subscribed or signed with their own hands, at the next general gaol delivery to be holden within the county where the said person or persons shall be arrested or suspected." And then it goes on thus:-" And that the said Justices, when any such prisoner is brought before them for any manslaughter or felony, before any bailment or mainprize, shall take the examination of the said prisoner, and the information of them that bring him, of the fact and circumstances thereof; and the same or as much thereof as shall be material to prove the felony, shall put in writing before they make the same bailment; which said examination, together with the said bailment, the said Justices shall certify at the next general gaol delivery to be holden within the limits of their commission (a)." It is evident, from the whole scope (a) The statute goes on to enact, "That every Coroner, upon any inquisition before him found, whereby any person or persons shall be indicted for murder or manslaughter, or as accessary or accessaries to the same before the murder or manslaughter committed, shall put in writing the effect of the evidence given to the Jury before him, being material; and as well the said Justices as the said Coroner shall have authority by this Act to bind all such by recognizance or obligation, as do declare any thing material to prove the said murder or manslaughter, offences or felonies, or to be accessary or accessaries to the same as is aforesaid, to appear at the next general gaol delivery to be holden within the county, city, or towncorporate, where the trial thereof shall be, then and there to give evidence against the party so indicted at the time of his trial; and shall certify, as well the same evidence as such bond or bonds in writing as he shall take, together with the inquisition or indictment before him taken and found, at or before the time of his said trial thereof to be had or made. And likewise the said Justices shall certify all and every such bond taken before of this statute, that the only intention of the Legislature in passing it was to prevent Justices of Peace from admitting offenders improperly to bail. The statute 2 & 3 Philip and Mary, c. 10. recites that the former statute 1 & 2 Philip and Mary, c. 13. " does not extend to such prisoners as shall be brought before any Justice of Peace for manslaughter or felony, and by such Justice shall be committed on the suspicion of such manslaughter, felony, &c. and not bailed; in which case the examination of such prisoner, and of such as shall bring him, is as necessary, or rather more, than where such prisoner shall be let to bail." And therefore it enacts, "That the Justice or Justices before whom any person shall be brought for manslaughter or felony, or for suspicion thereof, before he or they shall commit or send such prisoner to ward, shall take the examination of such prisoner, and the information of those that bring him, of the fact and circumstances thereof; and the same, or as much thereof as shall be material to prove the felony, shall put in writing within two days after the said examination; and the same shall certify in such manner and form, and at such time as they should and ought to do, if such prisoner, so committed or sent to ward, had been bailed, or let to mainprize. And that the said Justices shall have authority by this Act to bind all such by recognizance or obligation as do declare any thing material to prove the said manslaughter or felony against such prisoner as shall be so committed, to appear at the next general gaol delivery, &c. then and there to give evidence against the party; and that the said Justices shall certify the said bond taken before them, in like manner as they should and ought to certify the bonds mentioned in the 1 & 2 Phil. and Mary, c. 13." In this statute also the intention of the Legislature in passing it is clear and obvious. Its only object is to enable Justices them, in like manner as before is said of bailments and examination, &c. provided that Justices of Peace and coroners within the city of London and the county of Middlesex, and in other cities, boroughs, and townscorporate within this realm and Wales, shall within their several jurisdictions have authority to let to bail felons and prisoners, in such manner and form as they have been heretofore accustomed." 1791. LAMBE'S CASE, 1791. LAMBE'S CASE. (1) For it is of the Peace to take such information (1), and to transmit what passes before the committing Magistrate to the Court of Oyer and Terminer, or Gaol Delivery, to enable the Judge and Jury before whom the prisoner is tried to see whether said by L.C.J. the offence is bailable, and whether the witnesses are consistBRIDGEMAN, that Justices ent or contradictory in the evidence they give. These are of the Peace the motives which seem to have urged the Legislature to pass were not enthese two statutes. There is not a single expression in either of them from which it is to be collected, that the examination was directed to be taken merely as evidence against the prisoner; nor, indeed, is the examination in practice ever given in evidence, as a matter so required by the statutes; but containing a detail of circumstances, taken under the solemnity of a public examination for a different purpose, it is abled to take more authentic on account of the deliberate manner in which it is taken; and when it contains A CONFESSION, is admitted, not by force of the statutes, but by the common law, as strong evidence of that fact. Consider for a moment what an absurdity would follow, if the manner and form in which a confession is reduced into writing were to be the ground of an objection against receiving the confession in evidence. The confession of a fact by the prisoner to the Constable, the moment before they entered the office of the Magistrate, might, on the vivû voce testimony of the Constable, be given in evidence; but a confession made on the other side of the officedoor, in the presence and hearing of the Magistrate, could not be given in evidence if reduced into writing, unless such writing were signed by the prisoner. A proposition which needs only to be stated to shew its weakness and absurdity! The Legislature has not, by even a remote expression in either of the statutes, signified an intention to alter the nature of evidence, or to prevent that from being received as evidence against a prisoner now, which was receivable as evidence before. The intention was merely to compel Justices of the Peace to return the examination of the prisoners, and the information of those who appeared against them, for the purposes, and very wise ones they are, apparent on the face of the statutes. As matter of future evidence it was not even |