as stated by Mr. Phillipps, and Jervis, C. J., in his judgment, said :

"It is said in 2 Phillipps, 417" (488, 10th ed.) " that a witness is exempted, by his privilege, from answering not only what will criminate himself, but also what has any tendency to criminate him; the reason given for this is because, otherwise, question might be put after question, and though no single question may be asked which directly criminates, yet enough might be got from him by successive questions whereon to found against him a criminal charge.' The witness must be allowed to judge for himself." And Maule, J. observed during the argument,

"It is for the witness to exercise his own judgment in the matter, and to say whether the answer will criminate him."

It was also held that a judge is right in cautioning a witness who is about to answer a question which may have a tendency to criminate him. This case may, therefore, be considered to have extended the principle which had been laid down by the Court of Queen's Bench in Reg v. Garbett, 1 where it was decided that a witness is not compellable to answer a question, if the court be of opinion that the answer might tend to criminate him. This latter case also decided that the court may compel a witness to answer any such question; but 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.

A witness may waive his privilege and answer at his peril. 2

The same privilege extends to cases where an answer might subject the witness to penalties or forfeitures, 3 but not to cases where the answer might render him liable only to a civil action.

The 46 Geo. 3, c. 37, declares that a witness cannot,

1 1 Den. C. C. 236.

8 Cates v. Hardacre, 3 Taunt. 424.

22 Phill. 490.

by law, refuse to answer a question relevant to the matter at issue, on the sole ground that the answering of such question may establish, or tend to establish, that he owes a debt, or is otherwise subject to a civil suit, either at the instance of Her Majesty, or of any other persons or persons.

It has always been disputed whether a witness is bound to answer questions which are intended to degrade him. The cases on this head are conflicting; but it seems to be understood that such questions may be put to a witness, but he is not compellable to answer them. The current of ancient authority is against the right of enforcing an answer to such questions;1 but modern authority has shown a disposition to permit them at least to be asked. 2 This subject will be referred to again in the chapter on the examination of witnesses; but we may here mention that this doctrine has been recently elucidated by the 17 & 18 Vict. c. 125, s. 25, by which it is enacted that a witness may be asked, for the purpose of discrediting him, whether he has been convicted of any felony or misdemeanor, and if he denies the fact or refuses to answer, the interrogant may prove the conviction.

SECT. 4. Incompetency of Husbands and Wives as Witnesses for or against each other.

The concluding words of the 3rd section of the 14 & 15 Vict. c. 99, declare that nothing contained in the act

XVIII. "Shall in any criminal proceeding render any husband competent or compellable to give evidence for or against his wife, or any wife competent or com

1 Cook's case, 13 How. St. Tr.; Layer's case, 16 How. St. Tr. 2 Frost v. Holloway. K. B. 1818, cor. Lord Ellenborough; Roberts v. Allatt, M. & M. 192.

pellable to give evidence for or against her husband."

The first question which arose on the construction of this clause was as to the competency and compellability of husbands and wives to give evidence for or against each other in civil proceedings. It was held, in two cases, that they were severally incompetent; but it appeared that it was the intention of the Legislature to make them competent. And now, by the 16 & 17 Vict. c. 83, husbands and wives are rendered competent and compellable, in all civil cases, to give evidence "on behalf of any or either of the parties to the said suit, action or proceeding"; but this provision does not extend to criminal cases, nor to cases of adultery (s. 2); and neither husband nor wife is competent or compellable to disclose any communication made to him or her by the other during marriage (s. 3.)

Previously to the 14 & 15 Vict. c. 99, husbands and wives had been rendered competent and compellable to give evidence for and against each other in the new County Courts, under the 9 & 10 Vict. c. 95, s. 83. The exceptions, therefore, to the existing rule of their competency are to be sought only in criminal cases, and cases of adultery. In criminal cases the general rule has always been that husbands and wives are not competent to give evidence for or against each other.2 Nor can a wife or husband be a witness for or against any person who is indicted jointly with the husband or wife ;3 nor, on an indictment for a conspiracy, can the wife of one of the conspirators give evidence in favour of the others; because their acquittal must enure to the benefit of the husband. But in high

1 Barbat v. Allen, 21 L. J. 155, Ex.; Stapleton v. Crofts, ibid. Q. B. 247.

2 Co. Litt. 6, b.

3 R. v. Smith, 1 Mood. C. C. 289.

4 R. v. Locker, 5 Esp. 107.

treason it has been doubted whether a wife may not be made a witness against her husband.1 And in all cases where the husband is indicted for a personal injury to the wife, or the wife for a personal injury to her husband, the injured party is a competent witness against the other.2 The dying declarations of a wife who has been murdered by her husband, if not otherwise inadmissible, are evidence against him.3

It has also been held that, propter bonos mores, neither husband nor wife is competent to prove non access, in order to bastardize the issue; but it may be doubted whether the rule could be upheld since the late act; unless the 4th section, which we are about to consider, may be considered to confirm the exception. The 4th section of the 14 & 15 Vict. c. 99, is as

follows:-
:<-

XIX. "

Nothing herein contained shall apply to any action, suit, proceeding, or bill in any Court of Common Law, or in any Ecclesiastical Court, or in either House of Parliament instituted

in consequence of adultery or breach of promise of marriage.

This section is to be read as the last material exception to the 1st section of the statute, by which,

XX. On the trial of any issue, the parties thereto, and the person on whose behalf the proceedings is, shall be competent and compellable to give evidence. (s. 1.)

Thus, in actions for criminal conversation, neither

1 R. v. Griggs, T. Raym. 2.

2 R. v. Audley, 1 St. Tr. 393; R. v. Ayze, 1 Str. 635.

3 R. v. John, 1 East P. C. 357.

the husband, nor the wife, nor the defendant, can be examined; nor can the wife's letters or confessions be made evidence for the husband. But what the husband and wife say to each other, and their general demeanour before the criminal connection has been suspected, is evidence to show the terms on which they lived with each other, in order to estimate damages.3

We have now stated the general principles by which the competency and incompetency of witnesses are tested. And although we have unavoidably anticipated some of the excluding principles of evidence, which will be discussed more fully in a subsequent part of the work, we may now proceed to consider the fundamental rules by which evidence must be received or rejected. We have considered who may be witnesses : we now proceed to consider what they ought to say; what they may say; and what they must not say.

3 Per Lord Ellenborough; Trelawny v. Coleman, 1 B. & Ald. 90.