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the plaintiff with being a rebel and traitor, "because he was a Roman Catholic," the defendant was not allowed to justify by citing books of authority among the Roman Catholics, which seemed to show that their doctrines were inimical to loyalty (n). In all such cases, as also in the proof of foreign law, the evidence is matter of science, which must be given by expert and scientific witnesses in court. Books are only hearsay often of the most vague, inconsistent and remote character; statements made by absent, perhaps anonymous, witnesses, who wrote without being under the fear of the spiritual or secular penalties of an oath, and without being subject to crossexamination. It is plain, therefore, on the first principles of evidence, that they are without any of the elements of legal credibility.

In short, the rule will not be construed to exclude from the consideration of a jury anything which would assist them in making up their minds upon the facts in dispute, but is intended simply to prevent the functions of the jury being usurped by the witness, which would be done, were he allowed to lead their opinion by his own.

In equity the rule has little force. In the first place, when the evidence is taken by affidavit, as it usually is, the deponent is entitled to speak as to his "knowledge and belief;" though, when he deposes as to facts and circumstances not within his personal knowledge, he is obliged to state his means of knowledge (o). Where the evidence is taken vivâ voce at

(n) Per Cur. Darby v. Ousley, 1 H. & N. 12.
(0) Consol. Order, 5 Feb. 1861, rule 23.

the hearing, or where a witness is examined or crossexamined before the examiner, a much greater latitude in respect of this rule is allowed than at common law. The object at equity being to elicit from the witness everything with respect to which he is competent to testify, leaving the weight to be attached to all evidence to the discretion of the court.

CHAPTER VII.

ON PRIVILEGED KNOWLEDGE AND COMMUNICATIONS.

HITHERTO We have been considering chiefly the principles by which evidence is admitted in courts of justice. We are now to consider, 1st, the principles by which certain classes of evidence are excluded; and 2nd, the principles by which certain real or apparent exceptions to these rules of exclusion are re-admitted in evidence.

Except when some positive rule intervenes, a witness may be asked, and will be compelled to answer, any question that may be put to him. It seems also to be understood now, that a witness may be asked any question; but there are many questions which he will not be compellable, and some which he will not be permitted, to answer. So in documentary evidence every writing is admissible, except when it is excluded by a similar principle of law.

But there are still many kinds of evidence which, from principles of public policy, are altogether excluded from the consideration of courts and juries; and the first and most important is that by which a witness may refuse to answer any question which tends to expose him to a charge of a criminal nature. This privilege rests on the fundamental maxim of the common law, nemo tenetur seipsum prodere, and is the intuitive principle of self-defence recognized as

the political and social right of every citizen. Consequently, it is an established general rule, confirmed. by statute, but subject to limitations, that—

SECTION 1.

A witness is not compellable to answer any question tending to criminate himself.

He cannot be compelled to answer any question, the answer to which may expose, or tend to expose, him to a criminal charge, penalty, or forfeiture of any kind. This rule is recognized and expressed by the Law of Evidence Amendment Act, 1851, which, after making the parties to civil actions and suits competent and compellable witnesses on behalf of either party, enacts that nothing in the act shall render any person compellable to answer any question tending to criminate himself or herself (p).

Some difficulty has arisen in the application of this rule, and some diversity of opinion appears to exist as to its construction and extent. It is still doubtful in some measure whether the witness is entitled to his privilege as of right, or only under the sanction of the court. In R. v. Garbett (q), it was held that a witness is not compellable to answer a question, if the court be of opinion that the answer might tend to criminate him. It was also held in the same case that the court may compel a witness to answer any such question; but that if the answer be subsequently used against the witness in a criminal proceeding, and a conviction obtained, judgment will be respited and

(p) 14 & 15 Vict. c. 99, s. 3. Supra, p. 37.

(g) 1 Den. C. C. 236.

L

the conviction reversed. But in a later case (r), Maule, J., and Jervis, C. J., held that it is for the witness to exercise his own judgment, and to say whether the answer will criminate him, and that if he thinks that it will, he may refuse to answer. This view was doubted by Parke, B., in a later case (s), where the learned judge indicated his adhesion to the doctrine of R. v. Garbett. But the Court of Queen's Bench has since held that a witness can only claim the right of refusing to answer a question when the court is satisfied that there is any real danger of a prosecution if he does answer (†).

It is settled that it is no ground for a witness to refuse to go into the box, that the question will criminate him, and that he will refuse to answer it. The privilege can be claimed only by the witness himself after he has been sworn and the objectionable question put to him (u). A judge ought to caution a witness, where a privilege exists, that he is not bound to answer (x).

The question whether a wife is bound to answer questions criminating her husband is not in a satisfactory state. It was held at common law, in R. V. Claviger (y), that a wife could not be compelled to answer questions criminating her husband. In R. v. Worcester (z), Lord Ellenborough held that a wife

(r) Fisher v. Ronalds, 12 C. B. 762.

(s) Osborne v. London Dock Company, 10 Ex. 698.

(t) R. v. Boyes, 1 B. & S. 311.

(u) Boyle v. Wiseman, 10 Ex. 647.

() Maule, J., Fisher v. Ronalds, sup. ; Paxton v. Douglas, 16

Ves. 242.

(y) 2 T. R. 268.

(z) 6 M. & S. 194.

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