§ 71. The second is, that the Law rather in these cases interferes to protect than to shut out. The privilege is that of the party (except in the case of the husband and wife in criminal cases) and may be waived at his option. Thus, though the Government may resist the production of its State Records, they will be admissible, if it chooses to produce them. So if the client elects to forego his privilege, it will be no breach of confidence on the part of his adviser to divulge the communications which have passed between them: he may be compelled to give his evidence, where his client has offered himself as a witness. Section

Attorney is not called upon to disclose matters which he can be said to have learned by communication with his client or on his client's behalf, matters which were so committed to him in his capacity of Attorney, and matters which in that capacity alone he had come to know."

In Bolton v. Corporation of Liverpool 1 M. and K. p. 94, Lord Brougham observes that no man would dare to consult a professional adviser for defence, or protection of rights, if the Law were otherwise; and in Pearse v. Pearse (1 De Gex and Small, p. 28) Ld. Justice Knight Bruce said,

"Truth, like all other good things" says he may be loved unwisely-may be pursued too keenly-may cost too much. And surely the meanness and the mischief of prying into a man's confidential consultations with his legal adviser, the general evil of infusing reserve and dissimulation, uneasiness, suspicion, and fear, into those communications which must take place, and which, unless in a condition of perfect security, must take place, uselessly or worse, are too great a price to pay for Truth itself."

But it should be borne in mind that the refusal of a client to allow his professional adviser to disclose his confidence is not to be treated like the case of a party refusing to produce a document in his possession. No hostile inference can be drawn against him for his refusal. In Wentworth v. Lloyd, 10 (Jur: N. S., p. 962) Lord Chelmsford said,

"I cannot forbear noting the manner in which the Master of the Rolls throws the weight of the testimony of Mr. Wright, the former Solicitor of the plaintiff, into the scale of his opponents, which, with great respect, appears to me to proceed upon entirely erroneous principles. In the course of the examination of Mr. Wright he was asked, "Did Mr. Wentworth ever say anything to you on the subject of any dealings with Mr. Mort;" and before any answer could be given, the plaintiff interposed with this question, "Were the circumstances between me and you professional?" And, upon a reply in the affirmative, the question was no further pressed. Under these circumstances, his Honor treated the refusal of a client to allow his Solicitor to disclose professional communications in the same manner as if he had kept a material witness out of the way, or refused or prevented the production of a document in his possession; and he likened it to the case of Armory v. Delamirie, in Strange's Reports, contrasting it with the refusal of a witness to answer a question, on the ground that he is not bound to criminate himself. The use which the Master of the Rolls made of the exercise of the plaintiff's right to prevent the disclosure of confidential communications seems to me so entirely at variance with principle, and so utterly destructive of the well-known and invariably recognized privilege of professional confidence, that I cannot pass it by in silence; and, without dwelling upon the case, I think it would be found, upon examination, that the presumptions in the two instances to which his Honor referred are exactly the reverse of what he assumed them to be. I confess that I am unable to perceive the analogy between a client closing the mouth of his Solicitor upon a question as to professional communications and the conduct of the jeweller in Armory v. Delamire, who, upon a jewel which had been fourd being brought to him, took it out and returned the empty socket to the finder, and not producing the jewel at the trial, was made to pay damages-the value of a jewel of the finest water which would fit the socket-upon the rule of "omnia presumuntur contra spoliatorem." But a person who refuses to allow his Solicitor to violate the confidence of the professional relation cannot be regarded in that odious light. The law has so great a regard to the preservation of the secrecy of this relation, that even the party himself cannot be compelled to disclose his own statements made to his Solicitor with reference to the professional business. "If," as Lord Brougham says, in Bolton v. The Corporation of Liverpool (1 My. and K. 94,95), "such communications were not protected, no man would dare consult a professional adviser with a view to his defence, or to the enforcement of his rights, and no man could safely come into a court, either to obtain redress or to defend himself. The exclusion of such evidence is for the general interest of the community; and therefore to say, that when a party refuses to perinit professional confidence to be broken, everything must be taken most strongly against

XXIV., Act II. of 1855. Even before the late change in the law,(c) a witness, though protected, could of course throw off his protection, and answer any question, however tending to criminate, or directly criminating himself: and even now that a husband and wife can give evidence for or against each other in civil cases, communications between them are to be deemed privileged, and not to be divulged except with the consent of the party making them.(d)

§ 71a. A question has been raised whether a husband or wife can be evidence for or against each other in criminal cases in a Mofussil Court. Previous to Act II. of 1855, they could not have been in any case. Sec. XX. makes them competent in civil cases: and criminal cases are impliedly excluded, for expressio unius est exclusio alterius.

Since this was written, a case in which the Court of Foujdaree sentenced a man found guilty of murder to be hung on the sole evidence of his own wife has led to some discussion. Strictly this evidence was properly received for Act II of 1855, Sec. 58, provides that the Act shall not render inadmissible in any Court any evidence which would have been receivable in such Court before the Act. Mr. Arbuthnot in his Preface to the Select Decrees, while admitting that the English Law of Evidence gives the general rule, states that there are some exceptions, and specifically points out that the evidence of a wife may still be received against the husband in the Mofussil Courts. There is a Circular Order of the Court of Foujdaree Adawlut, issued in March 1830, which expressly sanctions the receipt of such evidence. It may have been thought that the legal fiction that husband and wife are one person does not apply to the status of marriage among Natives in India. And certainly where there is a plurality of wives, or even husbands, as obtains in certain parts of India, the state of society would seem to require a modification of

him, what is it but to deny him the protection which, for public purposes, the law affords him, and utterly to take away a privilege which can thus only be asserted to his prejudice?"

(c) Act II. of 1855, Sec. XXXII. This Section goes farther than the corresponding English Act and it may admit of doubt whether the Indian provision really affords a witness adequate protection: especially in a place where society is limited. It is all very well to say that his answer shall not be used as evidence against him; but suppose that in Madras a witness had on a civil trial been forced to admit that he had been guilty of forgery, for which he was indicted at the next Sessions (independently of his own disclosure) can it be supposed that his own admission, known as it would be to every man on the Jury, would not have the most prejudicial effect upon his case, however carefully it was excluded at the trial? Is it consistent with the maxim "Nemo tenetur seipsum prodere?"

(d) Act II. of 1855, Sec. XX. Here again the Indian goes farther than the English Act, though this evidence is admissible in the County Courts, 9 & 10 Vic, c. 95, s. 83.

the English Law of Evidence in this particular. The case alluded to above arose in Malabar, where a woman has plurality of husbands. It may be anomalous that there should be one rule of evidence in the High Court of Madras, and another in the Courts in the Mofussil; and it may possibly lead to some inconveniences and difficulties. But this is matter for Legislative interference; it may be left to the Judges to take care that the state of the Law in the interior shall not work a wrong. Even in England, for some purposes, husband and wife are not one: for instance a wife can hold separate property: a man killing his wife would not be guilty of suicide. When parties come to the tribunal of a country, they are bound by all the law ad litis ordinationem-procedure--of which evidence is a part: though in all matters ad litis decisionem, it is not the lex fori but the lex loci that obtains. (See Ante, § 23, note p). And therefore, but for the express exception in Act II. of 1855, in favor of the reception of husband or wife's evidence against each other in criminal cases, such testimony would be rejected in all Courts in which the English Law of Evidence obtains.

§ 716. In cases of treason, husband and wife may be witnesses against each other. Where the charge is one of personal ill-treatment, of course the evidence is receivable, for cessante ratione cessat lex: and they are not "one person" in the eye of the law where one ill-treats the other. Thus the dying declaration of a wife has been received against her husband on a charge of murder. R. v. Woodcock,(e) and see R. v. Lord Audley.(f) So on a charge of forcible abduction and marriage. The well-known case of the two Wakefields will occur to the reader. But observe that in this case, as in the case of the second wife in bigamy, the evidence is good on another ground, namely, that force or fraud annuls the contract ab initio, and in fact the witness is not the wife or husband, as the case may be.

$72. These four heads will be discussed in their appropriate place Here it is only necessary to point out the principles affecting them.

§ 73. It has been already shown that the legal grounds of exclusion on the score of interest and infamy are now abolished.(g) Disquisitions of considerable nicety and volume on these topics are there

(e) 2 Leach. 393.

(ƒ) See § 28.

(g) See § 28.

SEC. 716-80.] OPERATION OF LAW IN ANNEXING ARTIFICIAL EFFECTS. 43

fore obsolete, and we have thus exhausted our consideration of the principles of the Law of Evidence, so far as they operate by way of exclusion.

§ 74. It may not be out of place to note here that by Act II. of 1855, Sec. XIV., the following persons only shall be incompetent to testify:

"1st. Children under seven years of age, who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly.

"2nd. Persons of unsound mind, who, at the time of their examination, appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly; and no person who is known to be of unsound mind shall be liable to be summoned as a witness, without the consent previously obtained of the Court or person before whom his attendance is required.",

CHAPTER VI.

OPERATION OF LAW IN ANNEXING ARTIFICIAL EFFECTS.

§75. There remains to be considered the second branch of the subject laid down in § 38, the operation of the Law upon ordinary evidence that is to say, how it operates by annexing artificial effects to evidence which it has not excluded.

:

§ 76. On this subject our remarks for the present will be brief, as more convenient opportunities will hereafter present themselves for entering into detail on the various heads of evidence here glanced at.

§ 77. The Law of Evidence in certain cases annexes artificial effects to written Instruments and Facts, when once they have been satisfactorily proved and declared admissible.

78. First, as to the artificial effects annexed to written Instruments. § 79. Written instruments are divided into Public and Private, according to their nature.

§ 80. As to written instruments of the former class, i. e., Public; the Law attaches to some of these universally an artificial effect; to others only under special circumstances.

§ 81. Of the first class are Acts of Parliament) or of the Legislature, Acts of State such as Proclamations, Public Registers of births and marriages. These are of public notoriety, or of such a nature that all may be privy to them; and therefore when the Law has provided certain forms for authenticating and preserving such records, by means of its own duly delegated officers; it sanctions their solemn character, by annexing to them the artificial effect that they shall be considered depositories and evidences of the truths which they record, upon their production, and without the guarantee of the ordinary legal tests of truth. On this principle even books of History are admissible to prove public and notorious historical facts.()

(h) See Act II. of 1855, Sec. 2-13. See R. v. Sutton, 4 M. & S. 542, where Lord Ellenborough says:-" Public Acts of Parliament are binding upon every subject, because every subject is, in judgment of law, privy to the making of them, and therefore supposed to know them, and formerly the usage was for the Sheriff to proclaim them at his County Court; and yet what every subject is supposed to know, and what the Judge is bound judicially to take notice of, it is said the jury cannot advert to; for if this evidence was inadmissible, it must be because the jury could not be charged with it. Next, as to the proclamation, I consider it as an Act of State."

(i) See Act II. of 1855, Sec. XI. In De Haber v. The Queen of Portugal, 16 Jur., p. 167, Lord Campbell cites a passage from Selden's Table Talk, in which the author says he was Counsel in a case in which the King of Spain was outlawed in Westminster Hall. The same authority was cited by Counsel in The Duke of Brunswick v. King of Hanover, 6 Beav., p. 12, 20, and by the Master of the Rolls, p. 38. In Darby v. Ousley, 20 Jur., p. 497, the following instructive conversation took place between Mr. Kenealy (moving for a new trial) and the Bench.

"These things were not offered as evidence in the cause, but to show the speculative opinions of the Church by whose doctrines the plaintiff acknowledged himself bound. Would it not be allowable to state the doctrines of Thugs, Chartists, &c.? The works of writers, such as Hume, Paley, Bolingbroke, Bacon, Shakspeare, Milton, &c, are frequently cited to show their speculative opinions. [Alderson, B.-If you had stated this generally as being the doctrine of the Church of Rome, I should not have stopped you; but when you refer to Canon A., B., C. or D.--to a decree made at such a time and place, establishing so and so, it is very different. There you are stating a law which governs some other countries-not this; God forbid it should.] There is a case of Wakley v. which must be

cited ex relatione, said to have been decided before the Lord Chief Baron. [Pollock, C. B.— I have no recollection of it. Bramwell, B.-I was then at the bar, and in that case. It was an action by the plaintiff against The Medical Times' for libelling him in his occupation. The Editor defended himself, and in the course of his defence read several extracts from 'The Lancet,' written by the plaintiff's father many years before. This was allowed, though objected to. Pollock, C. B.-The defendant there defended himself, and such persons are allowed more license than would be allowed to the Bar. Besides, up to the passing of the late Act, you never could compel a defendant's Counsel to say whether he would call witnesses or not until he had concluded his address to the jury. That makes the defendant's Counsel bind himself on the subject before the plaintiff concludes his case. Here you stated your intention not to call witnesses.] Taylor's Medical Jurisprudence and Wills on Circumstantial Evidence are constantly cited in criminal cases. Pollock, C. B.-It has been decided over and over again that you cannot cite medical books. So in a horse case you cannot produce a book on farriery. You may indeed on cross-examination ask a medical man if he has read a certain medical book. Alderson, B.--Within reasonable license you may state facts, as for instance that a person has been improperly convicted on circumstantial evidence. In Reg. v. O'Connell, in Ireland in 1843, the defendant's Counsel, without objection read to the jury extracts from newspapers published in 1831, containing accounts of the political unions at Birmingham and York, also speeches in Parliament, &c. [Pollock, C. B.-A much more remarkable case is that of Rex. v. Hone, in the time of Lord Ellenborough. The defendant there brought volume after volume to show that publications had issued from the press over and over again of the same character as his own-to show that parodies, instead of being a contempt of the thing parodied are a tribute to its merits. He showed in particular that Luther had parodied the Lord's Prayer and