[Volume 5, Page 219]
The King v. Dr. Purnell96 Eng. Rep. 20 K.B. 1748
The defendant was vice chancellor of Oxford; and the Attorney-General had ex officio exhibited against him an information, for not taking the deposition of Blacow the evidence, and for neglect of his duty both as vice chancellor and justice of the peace, in not punishing Whitmore and Dawes, who had spoken treasonable words in the streets of Oxford. The defendant appeared to the first information, upon which a noli prosequi was entered, and a second filed, to which also the defendant appeared and pleaded; and a trial at Bar was appointed November 21, but it was countermanded, and a new day, viz. February 6th was afterwards appointed. And now, the last day of the term, the attorney, without any affidavit, moved for a rule directed to the proper officers of the university to 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.
In the next term, Mr. Wilbraham, standing counsel for the 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, 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. 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 are considered only as trustees, just as lords of manors 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 [Volume 5, Page 220] have been granted to inspect poor's rates; but those are public evidences which every body has a right to. Was there never any prosecution carried on with the same spirit as 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 &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.
Mr. Henley on the same side.--This is a rule of the greatest 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 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 affidavit 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 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, 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. 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, 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; 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, 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 quesiton; 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. 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 to inspect the corporation books; but denied, because they would not force a man to produce evidence against himself. K. and Lee, M. 17 G. 2; information against defendant as 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 information 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. [Volume 5, Page 221] 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, 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 are public and criminal suits. There, rules of this sort are frequent. The case of Bradshaw and Philips was not of a public nature. K. and Blackburn; post-office books are not public, but the King's private books. Benson and Cole; same answer. As to the case of College of Physicians, that was the case of plaintiffs, and the Court will not compel the plaintiff to produce evidence against himself. In The Qu. and Mead, the books were of a private nature, and it appeared that the defendant was the person who kept the books. In The K. and Lee, it was plain, that the defendant was himself the person against whom the motion was made. Not so here; the vice-chancellor is not the person on whom the rule is to be made.
[Hereupon Mr. Henley suggested, that the vice-chancellor had the custody of the original statutes.]
Sir John Strange for the Crown.--Affidavits are not usual in such cases. In the case of The Skinners' Company, the clerk refused to grant inspection, and an attachment was granted; but it was argued, whether the papers required were proper to be seen, and the Court held that they were. So here, if any thing improper be demanded, the inspection may be refused. Strange, that the university should conceal their statutes; since they are of so public a nature, that all the youth there entered, take oaths to observe them, and yet they are secreted from them. The Crown is the founder and lawgiver of the university, and as such has a right to inspect those laws.
[Lee, C.J.--I apprehend this case is argued to differ from all others (as qui tam actions, &c.) because in those the party applying is a stranger; but that in the present case the King is no stranger, because he is the founder. But how does that appear? Another question; is there any instance of an information against an officer of a corporation for breach of by-laws, and a rule granted to inspect those by-laws?]
Murray, Solicitor-General for the Crown.--Four necessary requisites for inspections of this kind. First, that they be public books. Second, that the party applying has an interest in them. Third, that they be material in a suit in this Court. Fourth, that the person in possession be forced to discover nothing to charge himself criminally.--First, these are of a public nature, given by the King, and open to all members of the university. The very youngest have a copy given them at their matriculation. Second, the King has an interest; he gave them, and has an interest in seeing them obeyed; and may enforce that obedience two ways; as visitor, and as King, where an offence at common law is mixed with the breach of them. Third, there is a suit in this Court, and the statutes may be material; and, if it is suggested that they will be so, the Court will grant the rule. Fourth, the objection is, that in criminal suits no one is bound to furnish evidence against himself. Agreed, but a distinction may be made. When a man is a magistrate, and as such has books in his custody; his having the office shall not secrete those books, which another vice-chancellor must have produced. Besides, the statutes are not in the vice-chancellor's custody only, but also in the hands of the custos archivorum.
Sir R. Lloyd, on the same side.--The university is not accused; the university may therefore very safely produce their books. The King is as much related to the Corporation of the University of Oxford, as to that of the City of York, and no more a stranger to one than the other. It is to be hoped, that the King is no stranger to either university. If a man were to be indicted for burning the records of a corporation; no doubt but such a rule would then be granted, and why not now? Per Lee, C.J.--This is quite a new case. There is no precedent to warrant it, I therefore chuse to consider of it.
Afterwards, Lee C.J., delivered the opinion of the Court. This rule has been much narrowed, since it was first moved by Mr. Attorney. But still we are all of opinion, that we cannot, consistently with the rules of this Court, make such a rule. We ground ourselves on what has been done in similar cases, though none so strong as this. No case has been cited to support this application, but The K. and Burkin, which is not apposite. The clerk of the peace ought ex officio to have given a copy of the indictment, and the Court would have granted a rule on him to do it. The cases which we apprehend to be close to this are, 1st. Qu. and Mead, 2 Ann. Ld. Raym. 927. The reasons for denying the motion were, because, 1. The books were of a private nature. 2. Granting such rule would be to make a man produce evidence against himself, in a criminal prosecution. The second case is The K. and Cornelius and Others, Justices of Ipswich, T. 17 & 18 Geo. 2, an information for exacting money from persons for licensing ale-houses: a motion to inspect the corporation books; cause was shewn against it by Sir J. Strange and Sir R. Lloyd. The Court on consideration were of opinion, that the rule could not be granted; as it was in a criminal proceeding, and it tended to make the defendants furnish evidence against themselves. These cases are very similar, only the present is rather stronger; because the information here is for a breach of and crime against the laws of the land, and this is an application to search books, which relate to the defendant's behaviour, as a member of a particular corporation. This case differs much from informations in nature of quo warranto; because these concern franchises, whereof the corporation books are the proper and only evidence, and they concern the Crown and the defendants [Volume 5, Page 222] equally. We know no instance, wherein this Court has granted a rule to inspect books in a criminal prosecution nakedly considered.
The rule was discharged per totam Curiam.
© 1987 by The University of Chicago