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men,1 or clergymen.2 But the judges have shown an indisposition to receive communications which have been made to clergymen as such. Best, C. J., is reported to have said that he would never compel a clergyman, if he objected, to disclose such communications;3 and in a late case, where a woman was indicted for the murder of her child, Alderson, B., objected to hear the chaplain of the prison as a witness to conversations which he had had with the prisoner in his spiritual capacity. The learned judge said: “I think these conversations ought not to be given in evidence. The principle upon which an attorney is prevented from divulging what passes with his client, is because without an unfettered means of communication the client would not have proper legal assistance. The same principle applies to a person, deprived of whose advice the prisoner would not have proper spiritual assistance. I do not lay this down as an absolute rule, but I think such evidence ought not to be given." Bodkin (for the prosecution), said that after such an intimation, he should not tender the evidence.
SECT. 2. On Evidence Excluded on grounds of Public Interest.
XXXIII. A witness cannot be compelled, and will not be allowed to state facts, the disclosure of which may be prejudicial to any public interest.
On Hardy's trial for high treason,5 a witness for the crown was asked on cross-examination by Mr.
1 Duchess of Kingston's case, 20 How. St. Tr. 613; R. v. Gibbons, 1 C. & P. 97.
Erskine, whether the person to whom he had communicated a report of the proceedings of the society to which the prisoner belonged, was a magistrate of any species or description, from a justice of peace to a secretary of state. It was held by Eyre, C. J., that he might say whether the communication was made to a magistrate or not. The witness said, "It was not to a magistrate." Mr. Erskine then asked, "Then to whom was it?" The Attorney-General objected to the question. Eyre, C. J., said: "It is perfectly right that all opportunities should be given to discuss the truth of the evidence given against the prisoner; but there is a rule which has universally obtained, on account of its importance to the public for the detection of crimes, that those persons who are the channels by means of which that detection is made, should not be unnecessarily disclosed; if it can be made appear that really and truly it is necessary for the investigation of the truth of the case, that the name of the person should be disclosed, I should be very unwilling to stop it; but it does not appear to me that it is within the ordinary course to do it, or that there is any necessity for it in this particular case." The point was subsequently discussed before the other judges, and the majority concurred with Eyre, C. J., who thus laid down the rule:1 "My apprehension is, that among those questions which are not permitted to be asked, are all those questions which lead to the discovery of the channel by which the disclosure was made to the officers of justice; that it is upon the general principle of the convenience of public justice, that they are not to be disclosed; that all persons in that situation are protected from the discovery; and that, if it is objected to, it is no more competent for the defendant to ask who the person was that advised him to make the disclosure, than it is to whom he made the disclosure in consequence of the advice-than it is to ask any other
1 24 How, 11. Tr. 815.
question respecting the channel of communication, or all that was done under it."
It was held by Lord Ellenborough,' that a member of Parliament or the speaker may be called on to give evidence of the fact of a member of Parliament having taken part or spoken on a particular debate; but that he cannot be asked what he then delivered in the course of the debate. It has also been held, that communications in official correspondence relating to matters of state cannot be produced as evidence in an action against a person holding an office for an inquiry charged to have been done in the exercise of the power given to him as such officer; not only because such communications are confidential, but because their disclosure might betray secrets of state policy. So it has been held that communications between a governor of a province and his attorneygeneral are privileged.3
But the courts have occasionally shown a disposition to limit the rule. Thus in an action for a penalty for acting as a parish committee-man, being at the same time a collector of the property tax: a clerk to the commissioners of the property tax was called, and directed to produce his books, to prove the defendant's appointment. The witness refused, on the ground that he had been sworn, on his own appointment, not to disclose anything he should hear in that capacity respecting the property tax, except with the consent of the commissioners, or by force of an act of Parliament. But Lord Ellenborough said :-"I clearly think the oath contains an implied exception of the evidence to be given in a court of justice, in obedience to a writ of subpoena. The witness must produce the book, and answer all questions respecting the collection of the tax, as if no such oath had been administered to him."
appears also that a grand juror may be compelled, either in civil or criminal cases, to disclose what has passed before a grand jury.1
SECT. 3.-Evidence excluded on ground of indecency.
Evidence may be excluded on the ground of indecency. But this rule only holds in civil cases. Thus it is an established rule that parties shall not be permitted after marriage to say that they have had no connection.2 And Gibbs, C. J., refused to try an action on a wager, whether an unmarried woman had had a child. But although a wife cannot prove nonaccess in order to bastardize her issue; yet it appears that, if that fact is proved by other evidence, she may be examined as to collateral facts, such as the name of an adulterer, or the time of a birth. In criminal cases no objection can be taken to evidence on the ground of indecency; and in civil cases the rule is restricted to such as involve considerations of domestic morality; or cases in which the admission of such evidence would only tend to encourage the shameless or morbid outrage of conventional propriety.
Sykes v. Dunbar, 2 Selw. N. P. 1059; 4 Bl. Comm. 126, note by Mr. Christian of a case at York.
2 Per Lord Denman; R. v. Inhabitant of Courton, 5 A. & E. 188. 3 Ditchburn v. Goldsmith, 4 Camp. 152.
4 R. V.
Luffe, 8 East 193.
ON HEARSAY EVIDENCE.
EVIDENCE is said to be hearsay when it purports to be the oral or written statement of a witness who is not produced in court. It is a general rule that :
XXXIV. Hearsay Evidence is inadmissible.
The ground for its rejection lies in the fundamental principle that evidence has no claim to credibility unless it is given on oath, and unless the party to be affected by it has an opportunity of cross-examining the witness. The distinction between direct and hearsay evidence is of the widest possible kind, when they are considered as elements of, and guides to, moral certainty. When a witness states something which he himself has either seen or heard directly affecting the parties to a proceeding, such a statement contains clearly the requisite principles of presumptive truth. But when he states something which he has heard from a third party, who is not present in court, the statement affords no satisfactory or reasonable information. A multitude of probable contingencies annihilate its value. Thus, it is not improbable that the witness may have misunderstood or imperfectly remembered the words of the third party; or that the latter may have spoken hastily, inaccurately, or even falsely. It would be unjust and unreasonable that either life or property should be placed in jeopardy by the vague and commonly prejudiced and exaggerated language of daily life; and therefore a witness is always stopped