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CHAPTER THE THIRD.
OF WRITTEN EVIDENCE.
Of the Proof and Effect of-1. Public Documents, p. 407.-2.
1ST. Of the proof and effect of public documents.
Acts of Parliament are either public or private. The printed statute book is evidence of a public statute. (a) A private Act of Statutes. Parliament was usually proved formerly by a copy examined with the Parliament roll. (b) But now, by the 8 & 9 Vict. c. 113, s. 3, 'all copies of private, and local and personal Acts of Parliament not public Acts, if purporting to be printed by the Queen's printers, and all copies of the journals of either House of Parliament, and of royal proclamations, purporting to be printed by the printers to the Crown, or by the printers to either House of Parliament, or by any or either of them, shall be admitted as evidence thereof by all courts, judges, justices and others, without any proof being given that such copies were so printed.'
By the 13 & 14 Vict. c. 21, s. 7, 'Every Act made after (A.D. 1850) shall be deemed and taken to be a public Act, and shall be judicially taken notice of as such, unless the contrary be expressly provided and declared by such Act.' A private Act may contain clauses of a public nature, and then the Act, as far as those are concerned, is to be regarded as a public Act. Thus a clause relating to a public highway, occurring in a private Enclosure Act, has been holden provable in the same way as a public Act. (c) In some Acts of Parliament not relating to the kingdom at large, a special clause is often inserted declaring them to be public Acts, and that they shall be taken notice of as such, without being specially pleaded; in which case they are to be proved in the same manner as public Acts; it is not necessary to prove them by an examined copy, or to show that the printed copy was printed by the Queen's printer. (d) The clause referred to was intended for the facility of proof; it will not give the Act the effect of a public Act for other purposes, as with regard to the recital of facts contained in it. (e). A clause was often formerly inserted in private Acts, providing that they shall be printed by the King's printer, and that a copy so printed shall be admitted as evidence of the Act. In such cases, a copy, purporting to be printed by the King's printer, will be admissible in evidence: it is not necessary to prove that the Act was purchased at the King's printer. (f) By the 41 Geo. 3,
(a) Gilb. Ev. 10. 2 Phil. Ev. 127, 1 Stark. Ev. 274.
(b) Bull. N. P. 225, (c) Rex v. Utterby, 2 Phill. Ev. 128, per Holroyd, J. And see Hob. 227.
(d) 2 Phill. Ev. 128, citing Beaumont v. Mountain, 10 Bingh. R. 404. 4 M. & Sc. 177. Woodward v. Cotton, 1 C. M. & R. 44. 4 Tyrw. 689.
(e) 2 Phill. Ev. 129, citing Brett v. Beales, M. & M. 421.
(f) 2 Phill. Ev. 129, Lincoln Sum. Ass. 1832, by Park, J. A. J. R. v. Wallace, 10 Cox, C. C. 500. Where the copy of an Act is incorrect, the court will be governed by the Parliament roll. Rex v. Jeffries, 1 Str. 446. Spring v. Eve, 2 Mod. 240.
Preamble proof of facts recited.
Journals of the
c. 90, s. 9, copies of the statutes of Great Britain and Ireland prior to the Union, printed by the printer duly authorized, shall be received as conclusive evidence of the several statutes in the courts of either kingdom.
The preamble of a public Act of Parliament, reciting that certain outrages had been committed in particular parts of the kingdom, was adjudged by the Court of King's Bench to be admissible in evidence, for the purpose of proving an introductory averment in an information for a libel, that outrages of that description had existed. (g)
The journals of the House of Lords or of the House of Commons are evidence in criminal cases as well as in civil, and may be proved by examined copies; but the printed journals were not formerly evidence. (h) But now, by the 8 & 9 Vict. c. 113, s. 3, noticed ante, p. 407, copies of the journals of either House of Parliament, purporting to be printed by the printers to the Crown, or by the printers to either House of Parliament, or by any or either of them, shall be admitted as evidence thereof, without any proof being given that such copies were so printed.'
The public Acts of Government, and Acts by the King in his political capacity, are commonly announced in the Gazette, published by the authority of the Crown; and of such Acts announced to the public in the Gazette, the Gazette is admitted in courts of justice to be good evidence. (i) A proclamation for reprisals, published in the Gazette, is evidence of an existing war. (j) Proclamations for a public peace, or for the performance of a quarantine, and any acts done by or to the King in his regal character, may be proved in this manner, or by printed copies under the 8 & 9 Vict. c. 113, s. 3; (k) and, upon the same principle, articles of war, purporting to be printed by the King's printer, are allowed to be evidence of such articles. (1) A gazette, in which it was stated that certain addresses had been presented to the King, has been adjudged to be proper evidence to prove an averment of that fact in an information for a libel; (m) for they are addresses, said Lord Kenyon, C. J., of different bodies of the King's subjects, received by the King in his public capacity, and they thus become acts of state. And in Rex v. Forsyth, (n) the twelve judges seemed to think that the production of the Gazette would be sufficient, without proof of its being bought of the Gazette printer, or where it came from. In Rex v. Sutton (o) the Court of King's Bench determined that the King's proclamation (which recited that it had been represented that certain outrages had been committed in
(g) Rex v. Sutton, 4 M. & S. 532.
(i) 2 Phill. Ev. 107, 108. 1 Stark. Ev 279.
(k) See this clause, ante, p. 407. See also the Documentary Evidence Act, 1868, post, p. 409.
(7) 2 Phill. Ev. 108, 109. See the 27 & 28 Viet. c. 119, as to the articles of war for the Navy.
(m) Rex v. Holt, 5 T. R. 436. S. C. 2 Leach, 593.
(n) R. & R. 274. R. v. Wallace, 10 Cox, C. C. 500. Ante, vol. 2, p. 461. See 31 & 32 Vict. c. 37, post, p. 409. (0) 4 M. & S. 532.
Recital in pro
roof of facts
different parts of certain counties, and offered a reward for the dis-
The 31 & 32 Vict. c. 37, after reciting that it is expedient to amend the law relating to Evidence enacted as follows:
Sec. 1. This Act may be cited for all purposes as the Docu- Documentary Evidence Act, mentary Evidence Act, 1868.
Sec. 2. Prima facie evidence of any proclamation, order, or regu- Proof of cerlation issued before or after the passing of this Act by Her Majesty, tain proclamaor by the Privy Council, also of any proclamation, order, or regula- tions, orders, tion issued before or after the passing of this Act by or under the and regulaauthority of any such department of the Government or officer as is mentioned in the first column of the schedule hereto, may be given in all courts of justice, and in all legal proceedings whatsoever, in all or any of the modes hereinafter mentioned, that is to say: (1). By the production of a copy of the Gazette, purporting to contain such proclamation, order, or regulation. (2) By the production of a copy of such proclamation, order, or regulation purporting to be printed by the Government printer, or where the question arises in a court in any British colony or possession, of a copy purporting to be printed under the authority of the Legislature of such British colony or possession. (3) By the production, in the case of any proclamation, order, or regulation, issued by Her Majesty or by the Privy Council, of a copy or extract, purporting to be certified to be true by the Clerk of the Privy Council, or by any one of the Lords or others of the Privy Council, and in the case of any proclamation, order, or regulation issued by or under the authority of any of said department or officers, by the production of a copy or extract purporting to be certified to be true by the person or persons specified in the second column of the said schedule in connection with such departments or officer.
Any copy or extract made in pursuance of this Act may be in print or in writing, or partly in print and partly in writing. No proof shall be required of the handwriting or official position of any person certifying, in pursuance of this Act, to the truth of any copy of or extract from any proclamation, order, or regulation.
Sec. 3. Subject to any law that may be from time to time made by the Legislature of any British colony or possession, this Act shall be in force in every such colony and possession.
Sec. 4. If any person commits any of the offences following, that Punishment of is to say: (1) Prints any copy of any proclamation, order, or regu- forgery. lation which falsely purports to have been printed by the government printer, or to be printed under the authority of the Legislature of any British colony or possession, or tenders in evidence any copy of any proclamation, order, or regulation, which falsely purports to have been printed as aforesaid, knowing that the same was not so printed; or, (2) Forges, or tenders in evidence, knowing the same to have been forged, any certificate by this Act authorized to be annexed to a copy of or extract from any proclamation, order, or regulation, he shall be guilty of felony, and shall, on conviction, be liable to be sentenced to penal servitude for such term as is prescribed by the Penal Servitude Act, 1864, as the least term to
Act to be cumulative.
which an offender can be sentenced to penal servitude, or to be imprisoned for any term not exceeding two years, with or without hard labour.
Sec. 5. The following words shall in this Act have the meaning hereinafter assigned to them, unless there is something in the context repugnant to such construction (that is to say): "British Colony and Possession" shall for the purposes of this Act include the Channel Islands, the Isle of Man, and such territories as may for the time being be vested in Her Majesty by virtue of any Act of Parliament for the government of India, and all other Her Majesty's dominions. "Legislature" shall signify any authority other than the Imperial Parliament or Her Majesty in Council competent to make laws for any colony or possession. "Privy Council" shall include Her Majesty in Council and the Lords and others of Her Majesty's Privy Council, or any of them, and any Committee of the Privy Council that is not specially named in the schedule hereto. "Government Printer" shall mean and include the printer to Her Majesty, and any printer purporting to be the printer authorized to print the statutes, ordinances, Acts of State, or other public Acts of the Legislature of any British colony, or possession, or otherwise, to be the Government printer of such colony or possession. "Gazette" shall include the London Gazette, the Edinburgh Gazette, and the Dublin Gazette, or any of such gazettes.
Sec. 6. The provisions of this Act shall be deemed to be in addition to, and not in derogation of, any powers of proving documents given by any existing statute, or existing at common law.
Name of Department or Officer.
The Commissioners for executing the office
Secretaries of State.
Committee of Privy Council for Trade.
The Poor Law Board.
(oo) By the Elementary Education
By the Post-office Act, 1870 (33 & 34
Names of Certifying Officers.
Any Secretary or Under Secretary of
Any member of the Committee of Privy
Any Commissioner of the Poor Law Board
Evidence Act, 1868, shall have effect as if the Postmaster-General were mentioned in the first column, and any secretary or assistant secretary of the post-office were mentioned in the second column of the schedule to that Act; and any approval of the Treasury under this Act shall be deemed an order within that Act.
See 33 & 34 Vict. c. 14 (the Naturalization Act, 1870), s. 12; 34 & 35 Vict. c. 70 (the Local Government Board Act, 1871), s. 5; 36 & 37 Vict. c. 71 (the Salmon Fishery Act, 1873), s. 64.
Certain documents to be evidence without proof of
ture, &c., of
By the 8 & 9 Vict. c. 113, s. 1, whenever by any Act now in force or hereafter to be in force any certificate, official or public document, or document or proceeding of any corporation or joint stock or other company, or any certified copy of any document, bye-law, entry in any register or other book, or of any other pro- seal or signaceeding, shall be receivable in evidence of any particular in any person signing court of justice, or before any legal tribunal, or either House of the same. Parliament, or any committee of either House, or in any judicial proceeding, the same shall respectively be admitted in evidence, provided they respectively purport to be sealed or impressed with a stamp, or sealed and signed, or signed alone, as required, or impressed with a stamp and signed, as directed by the respective Acts made or to be hereafter made, without any proof of the seal or stamp where a seal or stamp is necessary, or of the signature or of the official character of the person appearing to have signed the same, and without any further proof thereof in every case in which the original record could have been received in evidence.'
Sec. 2. All courts, judges, justices, masters in chancery, masters of courts, commissioners judicially acting, and other judicial officers shall henceforth take judicial notice of the signature of any of the equity or common law judges of the Superior Courts at Westminster, provided such signature be attached or appended to any decree, order, certificate, or other judicial or official document.' A certificate of a conviction made at the quarter sessions for a borough within the Municipal Corporations Act, purporting to be signed by a person described thereon as deputy clerk of the peace of the said borough, and having the custody of the records of the said quarter sessions, is admissible in evidence, under the 8 & 9 Vict. c. 113, s. 1, as purporting to be made by an officer having the custody of the records of the court where the conviction was made, within the 5 Geo. 4, c. 84, s. 24, although the Municipal Corporations Act (5 & 6 Will. 4, c. 76) gave no power to appoint a deputy clerk of the peace for a borough within that act. Per Bramwell, B., 'A person de facto filling an office, carrying with it the custody of the records of the court, may lawfully give such a certificate, although he may not hold such office de jure. (p)
Courts, &c., to take judicial notice of signature of equity or
common law judges, &c.
By 23 & 24 Vict. c. 127, s. 22, any list of attorneys, solicitors, Law list eviand conveyancers, purporting to be published by the authority of dence. the Commissioners of Inland Revenue, and to contain the names of attorneys, solicitors, and conveyancers, who have obtained stamped certificates for the current year, on or before the first day of January in the same year, shall, until the contrary be made to appear, be evidence in all courts, and before all justices of the peace and others, that the persons named therein as attorneys, solicitors, or conveyancers, holding such certificates as aforesaid for the current year, are attorneys, solicitors, or conveyancers holding such certificates, and the absence of the name of any person from such list shall, until the contrary be made to appear, be evidence as aforesaid, that such person is not qualified to practise as an attorney, solicitor, or conveyancer under a certificate for the current year; but in the case of any person being an attorney or solicitor, whose name does not appear in such list, an extract from the roll
(p) R. v. Parsons, 35 L. J. M. C.167.