he was

to works of a veterinary surgeon to show what is unsoundness." "1 So in an action for a libel charging the plaintiff with being a rebel and traitor, "because 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.2 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 cross-examination. It is plain, therefore, on the first principles of evidence, that they are without any of the elements of legal credibility.

3

Ancient writings may be proved by a skilled witness to whom they have been submitted for examination as to their authenticity. And by the 17 & 18 Vict. c. 125, s. 27, comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine, shall be permitted to be made by witnesses; and such writings and the evidence of witnesses respecting the same may be submitted to the court and jury, as evidence of the genuineness or otherwise of the writings in dispute.

1 Per Cur.: Darby v. Ousley, 25 L. J. 232, Ex.

2 Ibid.

3 Roe d. Brune v. Rawlins, 7 East, 279.

66

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.

It was a principle of the common law that large classes of evidence were wholly without the elements of truth and safe guidance. As such, they were withdrawn entirely from the consideration of juries. Hence, in the course of centuries, the basis of legal evidence had widened to one of rigid and irrational exclusion. The contingency, or probability of deception from certain sources of evidence, had made our courts lose sight entirely of the contingency or probability of truth flowing from the same sources. To distinguish good from evil; to adopt the one and reject the other; were faculties and abilities which juries were not supposed to possess; although, inconsistently enough, they were presumed to possess the diagnostic power of pronouncing on the relative value of conflicting evidence, and of drawing inferences which required consummate practical knowledge of inductive logic.

It has been, and will probably long continue to be, the object of the Legislature to lessen and gradually remove these anomalies of the old law. The ancient law of exclusion in matters of evidence has been

abridged about half within the last fifteen years, and the new law is founded entirely on the principle of admission. It is the tendency of the age to permit and to require every description of evidence, from which information may possibly be derived, to be produced and submitted to courts and juries, however contaminated, or doubtful, or remote its source may appear to be. It is still as much as ever an inviolable principle that no man shall be unfairly prejudiced by his own statements, or the careless language of others; but the great object of courts in modern times is to accumulate as much miscellaneous evidence as possible on every issue, and to leave the question of credibilitythe privilege and the duty of distinguishing the gradations of value-to the intelligence of a court or jury of practical men.

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 recognised as the political and social right of every citizen. It was disregarded formerly when the law recognised torture and arbitrary proceedings, such as disgraced the judges before whom Sir Walter Raleigh was tried, when the prisoner was subjected to a system of interrogation such as exists now in France and most continental countries. Such

a system, although revolting to English ideas when it assumes a compulsory form, is perhaps advantageous to the cause of justice when of a voluntary kind; and it is matter of daily observation that a prisoner is exposed to an unfair disadvantage in not being permitted to pledge his own oath against that of the prosecution, which, it may be, rests only on the oath of a single and uncorroborated witness. Nor is the system consistent as it exists; for while a prisoner is not permitted to defend himself on oath, but only to address the jury in a speech, which weighs little, because it is not on oath; his own statements before a committing magistrate, and voluntary confessions, are employed constantly as almost conclusive evidence against him. But with these limitations, it is an established general rule, confirmed by statute, but subject to limitations, that

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 of any kind. This rule is recognised 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.i

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

114 & 15 Vict. c. 99, s. 3. Sup. p. 29.

court. In R. v. Garbett,1 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 the conviction reversed. But in a later case,2 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, where the learned judge indicated his adhesion to the doctrine of R. v. Garbett. In this conflict of authorities this question must be considered to be still unsettled.

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. A judge ought to caution a witness, where a privilege exists, that he is not bound to answer.5

The rule that only the witness in person can claim his privilege, extends to interrogatories; and it is settled that the court will not refuse to grant them, on the affidavit of a party's attorney that they will tend to criminate the party against whom they are sought;6 and generally interrogatories will never be refused on the ground that the party is privileged from answering

1 1 Den. C. C. 236.

2 Fisher v. Ronalds, 22 L. J. 63, C. P.

3 O borne v. London Dock Company, 24 L. J. 140, Ex.

Boyle v. Wiseman, 24 L. J. 160, Ex.

5 Maule, J.: Fisher v. Ronalds, sup. p. 69.

6 Osborne v. London Dock Company, sup. p. 69.