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(2.) If such a deposition was made in any British possession,

it shall not be admissible in any proceeding instituted

in the same British possession :
(3.) If the proceeding is criminal it shall not be admissible

unless it was made in the presence of the person

accused : every deposition so made as aforesaid shall be authenticated by the signature of the judge, magistrate, or consular officer, before whom the same is made; and such judge, magistrate, or consular officer shall, when the same is taken in a criminal matter, certify, if the fact is so, and that the accused was present at the taking thereof, but it shall not be necessary in any case to prove the signature or official character of the person appearing to have signed any such deposition; and in any criminal proceeding such certificate as aforesaid shall, unless the contrary is proved, be sufficient evidence of the accused having been present in manner thereby certified; but nothing herein contained shall affect any case in which depositions taken in any proceeding are rendered admissible in evidence by any Act of Parliament, or by any Act or Ordinance of the legislature of any colony, so far as regards such colony, or to interfere with the power of any colonial legislature to make such depositions admissible in evidence, or to interfere with the practice of any court in which depositions not authenticated as hereinbefore mentioned are admissible.'

The prisoner was indicted for larceny alleged to have been com- Depositions mitted in February 1852, on board an English merchant vessel, British Consul

by lying in the Bosphorus, of which the prisoner was mate and the at Constantiprosecutor captain. The principal evidence against the prisoner nople. consisted of the depositions of witnesses still abroad; and the cap

Questions as

to swearing tain proved that he made a charge against the prisoner of stealing the witnesses

, his property before the British Consul at Constantinople. Each translating witness was sworn and examined by the Consul. Each witness their stato:

ments, giving was asked if he could speak English, and if he could not he was the prisoner an sworn in another language; some were sworn in Greek, which the opportunity captain did not understand. They were all sworn on the

examine, and book, which was an English bible. The captain did not know striking out the religion of any of the witnesses sworn in the foreign language. hearsay from The Consul bimself took the examinations, and translated each the depoquestion and answer as it was given, and wrote the depositions in English ; and when the whole of each deposition was taken down it was read to the prisoner, and he was asked what he had to say; and all he said was that he was not guilty. The captain could not be answerable whether the prisoner was asked whether he would ask any witness any question. He could not ask questions of the witnesses, because he did not understand the language, and he did not tell the Consul anything he wished to be asked of the witnesses. The depositions had been transmitted to the Board of Trade by the Consul, and by that Board to the attorney for the prosecution, who produced them, and the captain proved his signature to his information and examination, which were amongst the depositions. The depositions bore the official seal of the English Consul for Constantinople, and were certified to have been taken in the presence of the prisoner. It was objected, 1, that there was no proof that the witnesses were duly sworn ; 2, that there ought to have been an

to cross

same

sitions.

interpreter sworn, and that the Consul could not act as interpreter as he had done, or the depositions ought to have been returned in the language of the witnesses ; 3, that the depositions, not being in the language of the witnesses, were not in fact their depositions ; 4, that the prisoner was not proved to have had a fair opportunity of cross-examination. For the Crown it was contended that the Merchant Shipping Act, 7 & 8 Vict. c. 112, s. 59, made depositions taken before a Consul abroad and certified under his official seal to be the depositions, and that they were taken in the presence of the accused, admissible in courts of criminal jurisdiction, ‘in like manner as depositions taken before any justice of the peace in England,' (n) and that by the Mercantile Marine Act, 13 & 14 Vict. c. 93, s. 115, depositions of any witnesses taken before any consular officer, in any criminal proceeding in the presence of the accused, and certified under his official seal to have been so taken, shall be admissible ; and 'any deposition purporting to be so certified shall be deemed to have been so taken and certified as aforesaid, unless the contrary is proved.' (o) That the deposition so certified is the deposition as it stands on the face of the documents. The 7 & 8 Vict. c. 113, s. 1, was also cited. It was replied that the 13 & 14 Vict. c. 93, s. 115, was answered, because it was proved that the depositions were not properly taken ; and that the 7 & 8 Vict. c. 112, s. 59, only made the depositions receivable where they would have been receivable if taken in England, and that these depositions would not have been so receivable. Greaves, Q. C., consulted Wightman, J., and they agreed that the proper course would be to admit the depositions, but to reserve the points. The depositions were then put in; but on examination they were found to contain a great deal of hearsay evidence. It was then objected that they were inadmissible on this ground; as it was impossible to separate the good and bad evidence, and the statute had made the depositions evidence, and there was no power to strike out any part of them. Greaves, Q. C., was of opinion that he might run his pen through all the objectionable parts of the depositions, (p) and direct the officer to read the remainder. (9)

(n) This Act is repealed by the 17 & 18 Vict. c. 120.

(0) This Act is also repealed by the 17 & 18 Vict: c. 120.

(p) See Small v. Nairne, 13 Q. B. 840. Hutchinson v. Bernard, 2 M. & Rob. 1 Steinkeller v. Newton, 9 C. & P. 313.

(9) Reg. v. Russell, MSS. C. S. G., S. C. 6 Cox, C. C. 60. On attempting to strike out the objectionable parts, it appeared so clear that the depositions had been taken by a person very little conversant with law, that Greaves, Q. C., told the counsel

for the prosecution that it was very difficult to presume that such a person had properly administered the oath or given the prisoner a proper opportunity of cross-examination; and, thereupon, the prosecution was abandoned. Wight. man, J., thought that as the witnesses had taken the oath without objection, it might perhaps be presumed that they were properly sworn; but on the other points he entertained grave doubts. Greaves, Q. C., was strongly inclined to think that all the objections were good.

CHAPTER THE FIFTH.

OF WITNESSES.—WHAT FACTS WITNESSES MAY DISCLOSE, AND WHAT

ARE PRIVILEGED COMMUNICATIONS, p. 539.—HOW WITNESSES
ARE BE EXAMINED, p. 557.—HOW THE CREDIT OF WITNESSES
MAY BE IMPEACHED, p. 572.-HOW MANY WITNESSES ARE SUFFI-
CIENT, p. 594.—HOW THE ATTENDANCE OF WITNESSES IS TO BE
COMPELLED AND REMUNERATED, p. 595.—OF ACCOMPLICES, p.
600.—AND WHAT WITNESSES ARE COMPETENT TO GIVE EVI-
DENCE, p. 611.

SEC. I.
Of Privileged Communications, and other Matters which a Wit-

ness may not Disclose. A WITNESS is to be sworn to speak the truth, the whole truth, Privileged and nothing but the truth. But this form of oath, absolute as it communica

tions. seems, must be taken with an implied reservation, that the witness is not to disclose any facts within his knowledge, which, by the law of the land, founded on considerations of justice, and of public policy, he is forbidden to make known. Of such a nature are professional communications between a client and his solicitor, or counsel, and matters connected with the government of the country. (a)

The law attaches so sacred an inviolability to communications Between client between a client and his legal advisers, that it will neither oblige or counsel.

and solicitor, nor suffer persons so employed to reveal any facts confidentially disclosed to them at any period of time, neither after their employment has ceased by dismissal or otherwise, nor after the cause in which they were engaged is entirely concluded. (b). The privilege of not being examined on such subjects is the privilege of the client, and not of the solicitor or counsel; (c) and it never ceases. 'It is not sufficient,' said Mr. J. Buller, (d) 'to say that the cause

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(a) See Spark v. Middleton, 12 Vin. Abr. Ev. B. a, 4, p. 38. 1 Keb. 505.

(6) Lord Say and Seale's case, 10 Mod. 41. Wilson v. Rastall, 4 Term Rep. 753, in the judgment of Buller, J. Sloman v. Herne, Esp. N. P. C. 695. Rex v. Withers, 2 Campb. 578. Parkhurst v. Lowten, 2 Swanst. 194, 221. Richards v. Jackson, 18 Ves. 474.

(c) 10 Mod. 41. Bull. N. P. 284. But if the client waive his privilege, the witness may be examined. Merle v. More, R. & M. N. P. C. 390. But he is not considered as waiving it by calling his solicitor as a witness. 1 Phill. Ev. 163, citing Waldron v. Ward, Styl. 449. Vail

lant v. Dodemead, 2 Atk. 524.

(d) 4 T. R. 759. The first duty of a solicitor is to keep the secrets of his clients,' per Gaselee, J. Taylor v. Black. low, 3 B. N. C. 235. He ought, therefore, 'to consider his lips sealed with a sacred silence'as to all confidential communications, per Tindal, C. J., ibid. And see Petrie's case and Madam du Barrè's case, cited 5 T. R. 756. А solicitor, therefore, who without his cli. ent's consent discloses a confidential communication, is 'guilty of a gross breach of a great moral duty,' per Vaughan, J., Taylor v. Blacklow, and is liable to an action for any injury that

is at an end; the mouth of such a person is shut for ever.' And it makes no difference that the client is not in any shape party to the cause before the court. (e)

The privilege is strictly confined to communications made to counsel, solicitors, and attorneys. (f) No others, however confidential, or whatever be the relation or employment of the party entrusted, are privileged. Therefore all other professional persons, whether physicians, surgeons, or clergymen, are bound to disclose the matters confided to them. (g) Thus where the prisoner, being a Papist, had made a confession before a Protestant clergyman of the crime for which he was indicted, that confession was permitted by Buller, J., to be given in evidence on the trial, and the prisoner was convicted and executed. (1) So a confession to a Popish priest has been held not to be privileged. (*)

Rule confined to legal ad. visers.

So a

may arise from such disclosure. Ibid.
Or he may be punished by the court to
which he belongs, admitted arguendo.
Ibid. Two learned barons, however, in
Hibberd v. Knight, 2 Exc. R. 11, expressed
an opinion that if an attorney chose volun.
tarily to disclose a confidential commu-
nication, the Court would receive the
evidence. These observations were merely
obiter dicta, and seem to have arisen
from an erroneous impression of the facts
in Marston v. Downes, 6 C. & P. 381. 1
A. & E. 31. The former of these reports
correctly states what occurred on the
trial, and certainly the attorney did not
volunteer any statement of the contents
of any dced ; and upon the observations
in Hibberd v. Knight being cited in New-
ton v. Chaplin, 10 C. B. 356, Maule, J.,
said, 'I presume that the learned barons
did not mean that the attorney may in
all cases betray his own client.' The
matter, however, seems to be set at rest
by Cleave v. Jones, 7 Exch. 421, as it
was there held that an attorney could not
give in evidence on his own behalf a
confidential communication in an action
against his client. In Volant v. Soyer,
13 C. B. 231, Jervis, C. J., raised a doubt
whether the 14 & 15 Vict. c. 99, had not
taken away the ground of objecting to
the production of a document on the
ground of its having been received pro-
fessionally ; but Maule, J., said that “The
right, which a client has always enjoyed,
of being protected from a breach of pro-
fessional confidence, remains the same. I
think the protection still continues unim-
paired, so far as regards the prohibition
to the attorney to give evidence of the
contents of, or to produce documents be-
longing to, his client.'

(e) Rex v. Withers, 2 Campb. 578.

(f) 4 T. R. 758. Rex v. Duchess of Kingston, 11 St. Tr. 246.

(g) Ibid.

(h) Rex v. Sparkes, cited in Du Barre v. Livette, Peake R. 78, in which latter case Lord Kenyon said he should have paused before he admitted such evidence. But the point, that confessions to clergymen are not privileged, has been fully

established by the decision in Rex v. Gilham, ante, p. 456. In Broad v. Pitt, 3 C. & P. 518, Best, C. J., after recog. nising this decision, said, 'I, for one, will never compel a clergyman to disclose communications made to him by a prisoner, but if he chooses to disclose them I shall receive them in evidence.' In Reg. y. Griffin, 6 Cox, C. C. 219, the chaplain of a workhouse was called to prove certain conversations be had had with the prisoner as to injuries she had inflicted on her child, for whose murder she was being tried, when he visited her as her spiritual adviser; Alderson, B., '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 any proper legal means of 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.' No case was cited.

(i) Butler v. Moore, M'Nall. Ev. 253, as cited 1 Phill. Ev. 165. In Reg. v. Hay, 2 F. & F. 4, Hill, J., committed a Roman Catholic priest for refusing to state from whom he received a stolen watch, which he stated he had received in connexion with the confessional. But the priest was not asked to disclose anything that had been stated to him in the confessional, and therefore no question arose as to that. Where a witness had taken an oath to a prisoner that he would not reveal what the prisoner should tell him, Patteson, J., said, “These oaths are very wrong and wicked, but still they are not binding, and every person, except counsel and attorneys, is compellable to reveal what they may have heard ; and counsel and attorneys are only excepted because it is absolutely necessary, for the sake of their clients, that commun tions to them should be protected ;' and admitted the confession." Rex v. Shaw, 6 C. & P. 372.

a

banker, (1) steward, servant, or private friend, is bound to disclose a communication, however confidential. (1) And where a clerk to the commissioners of the property-tax was required to prove the defendant to be a collector, and he objected, because he had taken an oath of office not to disclose what he should learn as clerk concerning the property-tax, except with the consent of the commissioners, or by force of an Act of Parliament, it was held that he was bound to give his testimony, and that the evidence which a witness was called upon to give in a court of justice was to be considered as an implied exception in the Act. (1) An arbitrator may be called to Arbitrator. prove what matters were claimed before him on a reference: (m) he cannot, however, be admitted or called on to give evidence of any concessions made by one party during the reference for making his peace and getting rid of the suit, although, as to regular admissions by the parties, there is no objection to his testimony. (n) A person Interpreter.

.

. who acts as an interpreter, (o) or agent, (p) between the solicitor Agent. and his client, or the solicitor's clerk, (q) cannot be called on to Clerk. reveal a confidential communication ; for they stand precisely in the same situation as the solicitor himself, and are considered as his organs.

It has been held that a person who is consulted confidentially Person conon the supposition of his being a solicitor, when in fact he is not attorney, not

, one, is compellable to answer. (7) And propositions which the being one. solicitor of one party has been professionally entrusted to make to another party may be proved by another witness who was present when they were delivered. (8) And a solicitor may be called upon by a plaintiff to state a conversation in which the defendant proposed a compromise to the plaintiff, although the witness attended on that occasion as solicitor for the defendant. (t) So where the Communicaplaintiff and defendant went together to the plaintiff's attorney's tions in the office, and had a conversation in the presence of the attorney's clerk, both parties.

presence of it was held that this conversation was not a privileged communication, but might be proved by the clerk, and that a letter written by the clerk in consequence of instructions given by the defendant in the course of that interview was admissible, as that was an act done. (u) So where an act is done in pursuance of a bargain between two parties and in the presence of the solicitors of each of them, the communication made by one party to his solicitor, relating to that act in the presence of the other party and his solicitor is not privileged. The defendant, in the presence of his solicitor,

(1) Lloyd v. Freshfield, 2 C. & P. 329. (r) Fountain r. Young, 6 Esp. 113 ;

(k) Valliant v. Dodemead, 2 Atk. 524. sed quære, whether this would be so Lord Falmouth v. Moss, 11 Price, 455. where the client has acted bond fide and

(1) Lee v. Birrell, 3 Campb. 337. without negligence.

(m) Martin v. Thornton, 4 Esp. 181, (s) Gainsford v. Grammar, 2 Campb. 10. by Lord Alvanley. Duke of Buccleuch (t) Griffith v. Davies, 5 B. & Ad. 502. v. Metropolitan Board of Works, 41 And per Parke, J., “This is not a confi. L. J. Ex. 137.

dential disclosure, but an open commu(n) Slack v. Buchannan, Peake N. P. C. nication from one adversary to another, 6. Westlake v. Collard, Bull. N. P. 236. witnessed by the attorney of one party. Martin v. Thornton, 4 Esp. 181. Bull. In Gainsford v. Grammar, the Lord Chief N. P. 284.

Justice might properly reject the attor. (0) Du Barrè v. Livette, Peake N. P.C. ney's evidence of what his client said to 78, S. C. 4 T. R. 756.

him, but not his statement of what he (p) Parkins v. Hawkshaw, 2 Stark. himself afterwards said to the opposite

party.' (9) Taylor v. Forster, 2 C. & P. 195. (u) Shore v. Bedford, 5 M. & G. 271. See Webb v. Smith, 1 C. & P. 337.

239.

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