1775.

RUDD'S CASE.

Trinity Term, 15 Geo. III.

Perreau of Harley-street, and upon a Mrs. Rudd, who lived with Daniel Perreau. On the 15th and 17th March Mrs. Rudd made information before Sir John Fielding and two other Justices of the Peace, by which she confessed that she had signed the bond of 7500l. but that she had done it under very particular solicitations from Robert Perreau; and that he and Daniel Perreau, holding a penknife to her throat, had violently threatened her life in case she refused, by which mean she was forced to comply. The Magistrates, conceiving this to be a confession of her own guilt, admitted her, in the character of an accomplice, a general witness for the Crown as to all the forgeries; telling her, that if she would speak the truth, and the whole truth, not only in respect of the bond in question, but of all other forgeries, that then she should be safe: she denied however having any knowledge of, or concern in, any of the other bonds. On the 1st June 1775, Robert Perreau was convicted at the Old Bailey for uttering the bond of 7500l. knowing it to be forged, with intention to defraud Messrs. Drummonds the Bankers. On the ensuing day Daniel Perreau was convicted of knowingly uttering the bond of 3300l. with intention to defraud Dr. Brooke. It appeared upon Robert Perreau's trial, from the evidence of Mr. Drummond, that Mrs. Rudd had confessed to him, that she was guilty of forging the bond of 7500l. and that Robert Perreau was innocent. Upon this information the Justices of Gaol Delivery issued a warrant against her, by virtue of which she was committed to Newgate, to answer all such matters and things as should be objected against her, touching the said felony and forgery. On the 7th June a detainer was lodged against her upon the oath of Sir Thomas Frankland, for forging the bond for 5300l. and on 3d July another detainer was lodged against her on the oath of Robert Perreau's wife, for having forged the bond of 7500. Under these circumstances she obtained a Habeas Corpus to the Court of King's Bench, with a view to be admitted to bail, and the above commitments were accordingly returned to the Court.

WALLACE, LUCAS, and HOWARTH, shewed cause against admitting her to bail; and they contended, First, That

Justices of the Peace have no power to admit an accom- 1775. plice in forgery a witness for the Crown; forgery not being

one of the offences mentioned in the statutes of 10 and RUDD'S CASE. 11 Will. III. c. 23. or 5 Ann. c. 31. Secondly, That supposing forgery were an offence within those statutes, yet the confession of the defendant had gone no further than to the bond of 7500l. and was silent as to the other two; and as she had not complied with the condition which the statute imposes, of making a full disclosure and discovery of all she knew, she was not intitled to any favour or protection in respect of the other two bonds.

DAVENPORT, for the defendant, contended, that as she had been admitted a witness for the Crown by the Justices of Peace, and had, under the faith and confidence of that admission, made a disclosure of the facts with which she was acquainted, it would be a breach of public faith to deprive her of the benefits she was thereby led to expect. He also urged that the circumstances of the defendant's health, were such as might in all probability endanger her life by the confinement, if she was remanded.

LORD MANSFIELD, C. J. It appears by the return to this writ, that the prisoner is detained in custody by two orders of the Court of Sessions and Gaol Delivery at the Old Bailey, for the forgery of two several bonds. It appears also, that she is further detained by a warrant from a Justice of Peace for uttering one of these bonds knowing it to be forged: therefore, though this Court has undoubtedly a discretionary power to bail in all cases whatsoever, yet as the Sessions are so near, and the offence committed by the prisoner is of such a magnitude as that of repeated forgery, there is no colour for the present application upon the ground of that general discretion. As to the next allegation, that her state of health is such as to be endangered by the confinement, it is not of itself a sufficient circumstance, in such a case, to induce the Court to interpose in her behalf. A third ground which has been urged in support of the present application is this; that the prisoner has been drawn in by promises and assurances to answer to an examination, and to swear to it

1775.

on oath, which she would not have done, but from a confidence that those promises and assurances would have been RUDD'S CASE. kept and performed. The instance has frequently happened, of persons having made confessions under threats or promises: the consequence as frequently has been, that such examinations and confessions have not been made use of against them on their trial. But it has been urged, that the prisoner in this case is an accomplice who has been admitted as a witness to give evidence; that she has already given evidence; that she is further ready to give evidence to convict her partners in this business; and that she is therefore entitled by law to the King's pardon, and to a pardon which would operate in bar of her own crime. If she have such a right, we shall be bound ex debito justitiæ to bail her; if she have not such legal right, but yet come under circumstances sufficient to warrant the Court in saying that she has a title of recommendation to the King for a pardon, we should bail her for the purpose of giving her an opportunity of applying for such pardon. There are three ways in law and practice which give accomplices a right to a pardon; and there is one mode which entitles them to a recommendation to the King's mercy. The three legal ways are, FIRST, in the case of approvement, which still remains a part of the common law, though, by long discontinuance, the practice of admitting persons to be approvers is now grown into disuse (a): SECONDLY, the case of persons who come within the statutes 10 and 11 Will. III. c. 23. s. 5. and 5 Ann. c. 31. s. 4.: and THIRDLY, the case of persons to whom the King has, by special proclamation in the Gazette or otherwise, promised his pardon. Approvers have a right to a pardon; persons within the statutes of King William and Queen Anne have a right to a pardon; and the other class of offenders who come in under the royal faith and promise have a right to a pardon; and in all these cases the Court will bail them, in order to give them an opportunity of applying for a pardon. There is beside a practice which indeed does not give a legal right;

(a) See the Law respecting Approvers, Hawkins's Pleas Crown, book 2. ch. 24. 2 Hale's Pl. 229. 8 Inst. 129. Stamford's P. C. 142.

and that is, where an accomplice having made a full and 1775. fair confession of the whole truth, is in consequence thereof admitted a witness for the Crown, and his evidence is after- RUDD's case. wards made use of to convict the other offenders. If in that

pro

case he act fairly and openly, and discover the whole truth, though he is not entitled of right to a pardon, yet the usage, the lenity, and the practice of the Court is, to stop the secution against him; he having an equitable title to a recommendation for the King's mercy. The statutes of William and Anne are to be laid out of this case: FIRST, because they are confined to the discovery of particular offences only, of which forgery is not one (a): SECONDLY, because they relate only to persons who are at large; beside which, to entitle offenders to a pardon, they must actually convict two offenders at least; for if their confcssion be such on their trial as the Jury give no credit to, they are liable to prosecution. These statutes are therefore quite foreign to the present case; as are likewise all promises of pardon from the Crown by proclamation. There remains, therefore, only the equitable practice which gives a title of recommendation to the mercy of the Crown. The LAW of APPROVEMENT (in analogy to which this other practice has been adopted, and so modelled as to be received with more latitude) is still in force, and is very material. A person desiring to be an approver, must be one indicted of the offence, and in custody on that indictment: He must confess himself guilty of the offence, and desire to accuse his accomplices: He must likewise upon oath discover not only the particular offence for which he is indicted, but all treasons and felonies which he knows of: and after all this, it is in the discretion of the Court, whether they will assign him a Coroner, and admit him to be an approver or not; for if on his confession it appears that he is a principal, Fitz. Cor. 50,

(a) By 10 and 11 Will. III. c. 23. against privately stealing in a shop, an offender discovering two or more accomplices is entitled to a pardon; and by 5 Ann. c. 31. s. 4. burglars discovering two accomplices are entitled to pardon.

2 Hawk. 94.

251, 441.

1775.

RUDD'S CASE.

10 Co. 76.

and tempted the others, the Court may refuse and reject him as an approver. When he is admitted as such, it must appear that what he has discovered is true; and that he has discovered the whole truth. For this purpose, the Coroner puts his appeal into form; and when the prisoner returns into Court, he must repeat his appeal without any help from the Court, or from any by-stander. And the law is so nice, that if he vary in a single circumstance, the whole falls to the ground, and he is condemned to be hanged: if he fail in the colour of a horse, or in circumstances of time, so rigorous is the law, that he is condemned to be hanged; much more if he fail in essentials. The same consequences follow, if he do not discover the whole truth: and in all these cases the approver is convicted on his own confession: this doctrine is to be seen more at large in Hale's Pleas of the Crown, vol. 2. page 226 to 236. Staundf. Pl. Cr. lib. 2. c. 52 to c. 58. 3 Inst. 129.-A further rigorous circumstance is, that it is necessary to the approver's own safety that the Jury should believe him; for if the partners in his crime be not convicted, the approver himself is executed. Great inconvenience arose out of this practice of approvement; and there is no doubt, if it were not absolutely necessary for the execution of the law against notorious offenders that accomplices should be received as witnesses, the practice is liable to many objections. And though, under this practice, accomplices are clearly competent witnesses (a), their single testimony alone is seldom of sufficient weight with a Jury to convict the offender; it being so strong a temptation to a man to commit perjury, if by accusing another he can escape himself. Let us see then what has come in the room of this practice of APPROVEMENT: it is a kind of hope, that accomplices who behave fairly and disclose the whole truth, and bring others to justice, should themselves escape punishment, and be pardoned. This is in the nature of a recommendation to mercy.

(a) It has been long settled that it is no exception against a witness that he has confessed himself guilty of the same crime. See Hawk. P. C. book 2. c. 46. Rex v. Atwood, post.