CONFESSIONS OF ACCOMPLICES-OF AGENTS.

613

qualifying or explaining the act of delivery, is to be rejected. And if, in consequence of the confession of the prisoner thus improperly induced, and of the information by him given, the search for the property or person in question proves wholly ineffectual, no proof of either will be received. The confession is excluded, because, being made under the influence of a promise, it cannot be relied upon; and the acts and information of the prisoner, under the same influence, not being confirmed by the finding of the property or person, are open to the same objection. The influence which may produce a groundless confession, may also produce groundless conduct (k).

§ 656. As to the prisoner's liability to be affected by the confessions of his accomplices, it may be laid down as a general rule of law, that such confessions are not admissible against him (1). So strictly has this rule been enforced, that where the prisoner was indicted for receiving stolen goods, a confession by the principal that he was guilty of the theft, was held by all the judges to be no evidence of that fact as against the receiver (m); and the decision, it seems, would be the same, if both parties were indicted together, and the principal were to plead guilty (n).

§ 657. The same doctrine prevails in cases of agency. In general, no person is answerable criminally for the acts of his servants or agents, whether he be the prosecutor or the accused, unless a criminal design is brought home to him. The act of the agent or servant may be shown in evidence, as proof that such an act was so done; for a fact must be established by the same evidence, whether it is to be followed by a criminal or civil consequence; but it is a totally different question, in the consideration of criminal as distinguished from civil justice, how the principal may be

(k) R. v. Jenkins, R. & Ry. 492.

(1) So is the Roman law. "Confessio unius non probat in præjudicium alterius, quia aliàs esset in manu confitentis dicere quod vellet, et sic jus alteri quæsitum auferre, quando omninò jura prohibent; etiamsi talis confitens esset omni exceptione major. Sed limitabis, quando inter partes convenit parere confessioni et dicto unius alterius." Mascard. de Prob. Concl. 486, vol. 1, p. 409. See ante, § 405. (m) R. v. Turner, 1 Moo. C. C. 347.

(n) Id. 348, citing an anonymous decision of Wood, B.

614

CONFESSIONS IMPLIED FROM ACQUIESCENCE.

affected by the fact, when so established. For though the act of the agent may involve his principal civilly, it cannot convict him of a crime, unless it be further shown that the principal has directed, or, at least, assented to such act (g). Where it was proposed to show that an agent of the prosecutor, not called as a witness, had offered a bribe to a witness, who also was not called, the evidence was held inadmissible; though the general doctrine, as above stated, was recognised (r). To the rule thus generally laid down, there is an apparent exception in the case of the proprietor of a newspaper, who is, primâ facie, criminally responsible for any libel it contains, though inserted by his agent or servant without his knowledge. But Lord Tenterden considered this case as falling strictly within the principle of the rule; for "surely," said he, "a person who derives profit from, and furnishes means for carrying on, the concern, and intrusts the conduct of the publication to one whom he selects, and in whom he confides, may be said to cause to be published what actually appears, and ought to be answerable, though you cannot show that he was individually concerned in the particular publication" (s). Yet even here the defendant may prove, if he can, that the publication was made by his servant without his authority, consent, or knowledge, and that it did not arise from want of due care or caution on his part (†).

§ 658. It remains only to be observed, that confessions, like admissions, may be inferred from the conduct of the prisoner, and from his silent acquiescence in the statements of others, made in his presence, respecting himself (u); provided they were not made either before a magistrate, when the prisoner, from a sense of decorum, might have felt himself restrained from interposing, or under any other circumstances, which would naturally have prevented him from replying (v).

(2) Lord Melville's case, 29 How. St. Tr. 764; The Queen's case, 2 B. & B. 306, 307; ante, § 509. (r) The Queen's case, 2 B. & B. 302, 306–309. (s) R. v. Gutch, M. & M. 433, 437. See further as to the acts of agents, ante, § 93. (t) 6 & 7 Vict. c. 96, § 7.

(u) R. v. Bartlett, 7 C. & P. 832, per Bolland, B.; R. v. Smithies, 5 C. & P. 332, per Gaselee and Parke, Js. ; ante, §§ 574-581.

(v) R. v. Appleby, 3 Stark. R. 33, per Holroyd, J.; Melenr. Andrews, M. & M. 336, per Parke, B.; Joy on Confess. 77-80; ante, § 579.

EVIDENCE EXCLUDED FROM PUBLIC POLICY.

615

CHAPTER XVI.

OF EVIDENCE EXCLUDED ON GROUNDS OF PUBLIC POLICY.

§ 659. THERE are some kinds of evidence which the law excludes or dispenses with, on grounds of public policy; because it is thought that greater mischiefs would probably result from requiring or permitting their admission, than from wholly rejecting them. This rule of law has respect, in some cases, to the person testifying, and, in others, to the matter concerning which he is interrogated; thus referring, on the one hand, to the testimony of a party to the suit, and of the husband or wife of a party; and, on the other, to professional communications, awards, secrets of State, and some other species of proof of a cognate character. The former branch of this rule, as relating more properly to the Competency of Witnesses, will hereafter be treated under that head. The latter we shall now proceed briefly to consider.

§ 660. In the first place, as regards professional communications, the rule is now well settled, that, where a barrister, solicitor, or attorney, is professionally employed by a client, all communications which pass between them in the course and for the purpose of that employment, are so far privileged, that the legal adviser, whether he be called as a witness, or be made a defendant in equity on a bill of discovery being filed against him, cannot be permitted to disclose them, whether they be in the form of title-deeds, wills (a), documents, or other papers delivered, or statements made, to him, or of letters, statements, or entries made by him, in that capacity (b).

(a) Doe v. James, 2 M. & Rob. 47. There the attorney of a party claiming as devisee under a will, was not allowed to produce it, though it was suggested that the will related also to personalty, and ought therefore to be deposited in the Ecclesiastical Court, and to be open for public inspection.

(b) Herring v. Clobery, 1 Phill. 91, 96; Cromack v. Heathcote, 2 B. & B. 4 ; Greenough v. Gaskell, 1 My. & K. 101. Brougham, L. Ch., was assisted in this last decision, by consultation with Lord Lyndhurst, Tindal, C. J., and Parke, J., 4 B. & Ad. 876; and the case is mentioned by Lord Abinger, as one in which all the authorities had been reviewed, 2 M. & W. 100.

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PROFESSIONAL COMMUNICATIONS INADMISSIBLE.

§ 661. This rule equally applies, though the attorney be employed in the character, either of a scrivener to raise money (c), or of a conveyancer to draw deeds of conveyance (d); or though the conversation relate only to the sale of an estate, and to the amount of the bidding to be reserved (e). In fact it extends to all communications between a solicitor and his client, relating to matters within the ordinary scope of a solicitor's duty (f). It seems, also, that the legal adviser cannot be asked whether the conference between him and his client was for a lawful or an unlawful purpose (g); though, if from independent evidence it should clearly appear that the communication was made by the client for a criminal purpose, as, for instance, if the attorney was questioned as to the most skilful mode of effecting a fraud, or committing any other indictable offence, it is submitted that, on the broad principles of penal justice, the attorney would be bound to disclose such guilty project (h).

§ 662. Where the professional adviser is the party interrogated, it is quite immaterial whether the communication relate to any litigation commenced or anticipated (i); for as Lord Chancellor Brougham observed, in a case of high authority, "If the privilege

(c) Turquand v. Knight, 2 M. & W. 100, per Lord Abinger; Harvey v. Clayton, 2 Swanst. 221, n.; Anon., Skinn. 404, per Lord Holt. But here it is necessary that the attorney should have been consulted as the party's own solicitor, R. v. Farley, 2 C. & Kir. 313, 318. See post, § 670, ad fin.

(d) Cromack v. Heathcote, 2 B. & B. 4. (e) Carpmael v. Powis, 1 Phill. 687.

(f) Id. 692, per Lord Lyndhurst.

(g) Doe v. Harris, 5 C. & P. 594, per Parke, J. (h) See R. v. Farley, 2 C. & Kir. 313; and R. v. Avery, 8 C. & P. 596. In Annesley v. Earl of Anglesea, 17 How. St. Tr. 1229, Serjt. Tindall, in argument, lays down the rule thus: "If the witness is employed as an attorney in any unlawful or wicked act, his duty to the public obliges him to disclose it; no private obligations can dispense with that universal one, which lies on every member of society, to discover every design which may be formed, contrary to the laws of the society, to destroy the public welfare. For this reason, I apprehend that if a secret, which is contrary to the public good, such as a design to commit treason, murder, or perjury, comes to the knowledge of an attorney, even in a cause wherein he is concerned, the obligation to the public must dispense with the private obligation to the client." Two of the learned judges, who tried that remarkable case, Bowes, C. B., and Mounteney, B., expressed the same sentiments, see pp. 1240-1243. See post, § 674.

(2) Lord Walsingham v. Goodricke, 3 Hare, 124; Desborough v. Rawlins, 3 My. & Cr. 515; Sawyer v. Birchmore, 3 My. & K. 572; Herring v. Clobery,

WHERE LEGAL ADVISER INTERROGATED.

617

were confined to communications connected with suits begun, or intended, or expected, or apprehended, no one could safely adopt such precautions, as might eventually render any proceedings successful, or all proceedings superfluous" (j); and again, “This protection is not qualified by any reference to proceedings pending or in contemplation. If touching matters that come within the ordinary scope of professional employment, legal advisers receive a communication in their professional capacity, either from a client, or on his account and for his benefit in the transaction of his business, or, which amounts to the same thing, if they commit to paper, in the course of their employment on his behalf, matters which they know only through their professional relation to the client,—they are not only justified in withholding such matters, but bound to withhold them, and will not be compelled to disclose the information or produce the papers in any court of law or equity, either as party or as witness" (k).

§ 663. "The foundation of this rule,” adds his Lordship, “is not on account of any particular importance, which the law attributes to the business of legal professors, or any particular disposition to afford them protection. But it is out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on, without the aid of men skilled in jurisprudence, in the practice of the courts, and in those matters affecting rights and obligations, which form the subject of all judicial proceedings" (1). If such communications were not protected, no man, as the same learned judge remarked in another case, would dare to 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 (m).

1 Phill. 91; Jones v. Pugh, id. 96; Greenough v. Gaskell, 1 My. & K. 98; Carpmael v. Powis, 9 Beav. 16, 20, per Lord Langdale. These cases overrule Williams v. Mudie, 1 C. & P. 158; Ry. & M. 34, S. C.; Clark v. Clark, 1 M. & Rob. 3; Broad v. Pitt, M. & M. 233; 3 C. & P. 518, S. C.; and Wadsworth v. Hamshaw, 2 B. & B. 5, note. (j) Greenough v. Gaskell, 1 My. & K. 103.

(k) Id. 101, 102.

(m) Bolton v. Corp. of Liverpool, 1 My. & K. 94, 95.

(7) Id. 103. "This rule seems to be