When witness is privileged on the ground of injurious consequences of a criminal kind. That the witness will be subjected to a criminal charge, however punishable, is clearly a sufficient ground for claiming the protection. Thus a person could not be compelled to confess himself the father of a bastard child, as he was thereby subjected to the punishment inflicted by the 18 Eliz. c. 3, s. 2 (repealed); R. v. St. Mary, Nottingham, 13 East, 58 (n). So a witness cannot be compelled to answer a question which subjects him to the criminal consequences of usury; Cates v. Hardacre, 3 Taunt. 424. And if a witness was improperly compelled, after objection taken by him, to answer questions tending to criminate him, it would appear that such answers would not be admissible in evidence against him should he be subsequently tried on a criminal charge. R. v. Coote, L. R. 4 P. C. 599; 42 L. J. Pr. C. 45, ante, p. 60. But if the time limited for the recovery of the *penalty have expired, the witness may be compelled to answer. Roberts v. Allatt, M. & M. 192.

[*151 Whether or no a witness who has been pardoned is bound to answer questions which tend to show him guilty of the offence for which the pardon has been granted, is perhaps doubtful. The question appears to have been decided in the negative by North, C. J., in R. v. Reading, 7 How. St. Tr. 226; but that case has been much doubted. See Moo. & M. N. P. C. 193 (n), and in R. v. Boyes, 1 B. & S. 311, it was held by the Court of Queen's Bench that a pardon took away the privilege of the witness in such a case.

A

In the case last mentioned an objection was taken on behalf of the witness that though a pardon under the great seal might be a protection in ordinary cases, yet that under the peculiar circumstances of that case it was not so.. The prosecution was for bribery, and the question put to the witness was objected to by him, on the ground that its answer would tend to show that he had received a bribe. pardon under the great seal was thereupon handed to him by the solicitor-general, who was prosecuting for the crown, but the witness still refused to answer, on the ground that, inasmuch as by the express provisions of the 12 & 13 Will. 3, c. 2 (repealed), the pardon would not be pleadable to an impeachment for bribery by the House of Com

1 United States v. Craig, 4 Wash. C. C. 229; Southard v. Rexford, 6 Cow. 254; Grannis v. Brandon, 5 Day, 260; People v. Herrick, 13 Johns. 82; Ward v. People, 3 Hill, 395, 6 Hill, 144; Cloyes v. Thayer et al., 3 Hill, 564; Warner v. Lucas, 10 0. 336; Low v. Mitchell, 18 Me. 372; Poindexter v. Davis, 6 Gratt. 451; Janvrin v. Scammon, 9 Fost. 280; Coburn v. Odell, 10 Fost. 540; Pleasant v. State, 15 Ark. 624; State v. Bilansky, 3 Minn. 246; People v. Kelley, 10 Smith, 74; Printz v. Cheeney, 11 Ia. 469. It is proper to ask a question, the answer to which may criminate the witness, as he may answer it, and the court will carefully instruct the jury that the refusal to answer gives rise to no inference of guilt. Newcomb v. State, 37 Miss. 383. [The privilege must be claimed. If the witness does not object there is no reason why he should not be allowed to testify. Howell v. Parish, 26 La. An. 6.] When a witness was asked, on cross-examination, whether he had not been convicted and punished for an infamous crime, and the judge allowed the witness to elect whether he would answer, and he refused, it was held, that such refusal might be insisted on by counsel, in addressing the jury, as warranting the inference that he was unworthy of credit. State v. Garrett, Busb. Law, 357. Contra, Phelin v. Kenderdine, 20 Pa. St. 354. S.

mons, the privilege still existed; but the Court of Queen's Bench held that the danger to be apprehended must be real, and appreciable; and that an impeachment by the House of Commons for bribery was, under the circumstances, too improbable a contingency to justify the witness in still refusing to answer on that ground.

By the Corrupt Practices Prevention Act, 1883 (46 & 47 Vict. c. 51), s. 59, persons called as witnesses before any election court, or before election commissioners, are not excused from answering; but if they answer every question, they are to receive a certificate, which will be a bar to all proceedings against such persons for any offences under the Corrupt Practices Prevention Acts, and no answer shall, except in the case of any criminal proceedings for perjury be admissible in evidence in any proceeding, civil or criminal. By the interpretation clause of the same Act, s. 64, the word "indictment" includes "information." This interpretation was inserted to meet the case of R. v. Slater, 8 Q. B. D. 267; 51 L. J., Q. B. D. 246; and the words "any criminal proceedings" seem to get rid of the objection raised in R. v. Buttle, L. R., 1 C. C. R. 268; 39 L. J., M. C. 115, where it was held that answers given before a commission could not be used on a trial for perjury committed at the trial of an election petition.

Similar provisions are applied to the case of witnesses examined in respect of any offence against the law relating to explosive substances as contained in the Explosive Substances Act, 1883 (46 Vict. c. 3), s. 6.

As to compelling witnesses to answer in cases of bankruptcy, and fraudulent agents, bankers, etc., see post, p. 161.

Right to decline answering-how decided. Of course the judge is to decide whether or not the witness is entitled to the privilege, subject to the correction of a superior court.1 What inquiries he ought to

1 The witness and not the court is the proper judge whether a question put to him has a tendency to criminate. State v. Edwards, 2 N. & McC. 13. The court will instruct him to enable him to determine, and if the answer form one link in a chain of testimony against him he is not bound to answer. Id. The following principles were laid down by C. J. Marshall, in Burr's Trial:

It is the province of the court to judge whether any direct answer to the questions, which may be proposed will furnish evidence against the prisoner. If such answer may disclose a fact which forms a necessary and essential link in the chain of testimony which would be sufficient to convict him of any crime, he is not bound to answer it so as to furnish matter for that conviction. In such a case the witness must himself judge what his answer will be, and if he say on oath he cannot answer without accusing himself he cannot be compelled to answer. 1 Burr's Trial, 245; Parkhurst v. Lowton, 3 Swanst. 215. The witness (with the instruction of the court when necessary) must decide when his answer will tend to criminate him, and his decision is upon oath and at the peril of perjury. Poole v. Perrit, 1Sp. 128. A witness who declines to answer, on the ground that the answer sought may tend to criminate him, must state under oath that he believes that would be the tendency of the answer. And after that answer it is for the court to decide whether the question will have that tendency. Kirschner v. State, 9 Wis. 140. If a witness is exempt, by statute, from liability for any offence of which he is compelled to give evidence, or if the offence, as to him, is barred by the statute of limitations, he cannot claim the privilege of not answering ordinarily incident to such a case. Floyd r. State, 7 Tex. 215. If a statute provides that what a witness testifies shall not be given in evidence against him, his privilege is gone. People v. Kelley, 10 Smith, 74. One of two persons concerned in

Nature of privilege

*PRIVILEGE OF WITNESSES.

When witness privileged on the ground of injurious consequences

of a criminal kind

Right to decline answering-how decided
Questions tending to degrade a witness

[*149

PAGE
149

of a civil kind

of an ecclesiastical kind

149

150

150

151

152

153

153

153

Proof of previous conviction of witness may be given
Privilege of husband and wife

When the witness is privileged on the ground of confidence

(1) Persons in a judicial capacity

(2) Disclosures by informers, etc.

Use which may be made of answer where privilege not claimed or

Nature of privilege. We have already considered what questions may be put to a witness; every such question the witness is bound to answer, unless he can show that he is privileged from so doing, from some peculiarity in his situation.

There is a great difference between privilege and incompetency, though the difference has not always been kept in view. An incompetent witness cannot be examined, and, if examined inadvertently, his testimony is not legal evidence; but a privileged witness may always be examined, and his testimony is perfectly legal if the privilege be not insisted on.

If a witness be compelled to answer in cases where he claims and ought to have been allowed his privilege, that is not a ground for reversing a conviction upon complaint of a party to the suit, as the only person injured is the witness. R. v. Kinglake, 11 Cox, C. C. (Q. B.)

499.

The privilege of a witness arises in three ways: first, on the ground that to answer the question would expose him to consequences so injurious that he ought to be allowed to decline doing so; secondly, that to answer the question would be a breach of confidence, which he ought not to be forced to commit; thirdly, that to compel the witness to answer the question would be against public policy.

When the witness is privileged on the ground of injurious consequences of a civil kind. It has generally been considered that a witness is privileged from answering any question, the answer

to which might directly subject him to forfeiture of estate.1 [*150

*

1 1A witness may be compelled to testify against his pecuniary interest. Quinlan v. Davis, 6 Whart. 169. A witness may be compelled to give testimony, the tendency of

Forfeiture is now abolished except as to outlawry (see 33 & 34 Vict. c. 23, s. 1). And it is considered by Mr. Phillips (2 Phill. Ev. 492, 10th ed.), that the existence of this rule is impliedly recognized by the 46 Geo. 3, c. 87, which, after reciting that "doubts had arisen whether a witness could by law refuse to answer a question relevant to the matter in issue, the answering of which had no tendency to accuse himself, or to expose him to any penalty or forfeiture, but the answering of which might establish, or tend to establish that he owed a debt, or is otherwise subject to a civil suit at the instance of his majesty or of some other person or persons," it was declared and enacted, "that a witness cannot by law refuse to answer any question relevant to the matter in issue, the answering of which has no tendency to accuse himself and to expose him to a penalty or forfeiture of any nature whatsoever, by reason only or 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 his majesty or any other person or persons.'

It will be seen that this statute also excepts cases where the witness is exposed to a penalty. A doubt might arise whether this exception extends to penalties to be recovered by a common informer, or otherwise in a civil manner. In none of the reported cases since the statute does the question seem to have arisen, nor is there any very clear indication of what was considered to be the law before the passing of the above statute; the question therefore remains yet to be discussed.

When witness is privileged on the ground of injurious consequences of an ecclesiastical kind. Questions subjecting a witness to ecclesiastical penalties have been generally considered as coming within those which he is entitled to decline answering, as under the 2 & 3 Edw. 6, c. 13, s. 2, for not setting out tithes. Jackson v. Benson, 1 Y. & J. 32; on a charge of simony, Brownswood v. Edwards, 2 Ves. Sen. 244; or incest, Chetwynd v. Lindon, Id. 403.

But there cannot be a doubt that a judge, in deciding whether or not a witness is entitled to the privilege, would consider whether the danger suggested by the witness was real and appreciable; R. v. Boyes, infra, p. 151; and the mere chance of an obsolete jurisdiction being set in motion would very likely not be considered as entitling the witness to his privilege.

which may be to subject him to pecuniary loss. Ward v. Sharp, 15 Vt. 115. That a mere civil inability does not render the witness incompetent, see Gorham v. Carroll, 5 Litt. 221; Black v. Crouch, Id. 226; State v. McDonald, 1 Coxe, 332; Stoddart's Lessee v. Manning, 2 H. & J. 147; Bull v. Loveland, 10 Fick. 9; Baird v. Cochran, 4 S. & R. 397; Nass v. Swearingen, 4 S. & R. 192; Copp v. Upham, 3 N. H. 159; Hays v. Richardson, 1 G. & J. 316; Naylor v. Simmes, 7 Id. 273; Commonwealth v. Thruston, 7 J. J. Marsh. 63; Taney v. Kemp, 4 H. & J. 348; Planters' Bank v. George, 6 Mart. 679, overruling Navigation Co. v. New Orleans, 1 Mart. 23. Contro, Benjamin v. Hathaway, 3 Conn. 528; Storrs v. Wetmore, Kirby, 203; Starr v. Tracey et al., 2 Root, 528; Cook v. Corn, 1 Over. 240; and see Mauran v. Lamb, 7 Cow. 174. A witness is compellable to produce a paper, though it may subject him to pecuniary loss. Bull v. Loveland, 10 Pick. 9. S.

By 28 Vict. c. 18, s. 6, a witness may be questioned as to whether he has been convicted of any felony or misdemeanor. See the section, post, p. 166.

Privilege of husband and wife. A doubt has arisen whether the principle of law which considers husband and wife as one person, extends to protect persons who stand in that relation to each other from answering questions which tend to criminate either, even although they are neither of them upon trial, or in a situation in which the evidence can be used against them. It was indeed, at one time, held that a husband or wife was an incompetent witness to prove any fact which might have a tendency to criminate the other. R. v. Cliviger, 3 T. R. 263; but that decision is no longer law; all the subsequent cases, with one exception, treat the husband or wife as a competent witness under such circumstances; R. v. All Saints, Worcester, 6 M. & S. 194; R. v. Bathwick, 2 B. & Ad. 639, 22 E. C. L.; R. v. Williams, 8 C. & P. 284, 34 E. C. L. The case the other way is that of R. v. Gleed, 3 Russ. Cri. 623, 5th ed., in which, on a charge of stealing wheat, Taunton, J., after consulting Littledale, J., refused to allow a wife to be called in order that she might be asked whether her husband, who had absconded, was not present when the wheat was stolen ; but that case would hardly prevail against the two decisions of the Court of Queen's Bench, above referred to. In the well-known prosecution against Thurtell, Mrs. Probert, whose husband had been previously acquitted, was the principal witness, and the evidence does not even seem to have been objected to. See per Alderson, B., in R. v. Williams, ubi supra. Husband and wife are now competent witnesses for and against one another in certain cases. See ante, p. 129.

But though the husband or wife be competent, it seems to accord with principles of law and humanity that they should not be compelled to give evidence which tends to criminate each other; and in R. v. All Saints, Worcester, supra, Bayley, J., said that if in that case the witness had thrown herself on the protection of the court on the ground that her answer to the question put to her might criminate her husband, he thought she would have been entitled to the protection of the court. A similar opinion is expressed in 1 Phill. & Arn. Ev. 73, 10th ed.; and see Cartwright v. Green, 8 Ves. 405. By the 16 & 17 Vict. c. 83, s. 3, "No husband shall be compelled to disclose any communication made by him by his wife during the marriage," and vice versa; see O'Connor v. Majoribank, 4 M. & Gr. 435, 43 E. C. L.; see ante, P. 126.

Of course, if the husband or wife have been already convicted, acquitted, or pardoned, there will be no ground for claiming the privilege. R. v. Williams, supra.1

nation was asked, "Do your neighbors call you lying Josh ?" held that the question was inadmissible. Nerson r. Henderson, 3 Fost. 498. S.

Under the Georgia code, a witness need not testify to facts which degrade him. Gravett v. State, 74 Ga. 191.

1 Under the Iowa code a wife is permitted to testify for her husband in a criminal case; and her credibility is to be tested by the same rules which apply to all other wit