Indictment for

lence.

to marry one of the defendants; and, in another count, for conspiring to take her away by force, being an heiress, and to marry her to one of the defendants; the learned Baron was of opinion that, even assuming the young lady to be at the time of the trial the lawful wife of one of the defendants, she was a competent witness for the prosecution, although there was no evidence to support that part of the indictment which charged force. (1)

The wife is also admitted as a witness against her husband, ex personal vio- necessitate, in a prosecution of him for offences against her person. (m) So her dying declarations are admissible against him in the case of murder. (2) In an indictment of William Whitehouse at Stafford, upon Lord Ellenborough's act, for shooting at his wife, she was admitted as a witness for the prosecution by Mr. Baron Garrow, after consulting Holroyd, J., upon the ground of the necessity of the case; and Mr. J. Holroyd sent Mr. B. Garrow the case of Rex v. Jagger, Yorkshire Assizes, 1797, where the husband had attempted to poison his wife with a cake in which arsenic was introduced, and the wife was admitted to prove the fact of the cake having been given her by her husband; and Mr. J. Rooke afterwards delivered the opinion of the twelve Judges that the evidence had been rightly admitted. Mr. J. Holroyd, however, said, he thought the wife could only be admitted to prove facts which could not be proved by any other witness. So on an indictment against a man for beating his wife, she was held competent. (0) And the wife is always permitted to swear the peace against her husband. (p) And her affidavit has been permitted to be read on an application to the Court of King's Bench for an information against the husband for an attempt to take her away by force after articles of separation; and it would be strange to permit her to be a witness to ground a prosecution, and not afterwards to be a witness at the trial.(q) And it seems to be now settled, that in all cases of personal injuries committed by the husband and wife against each other, the injured party is an admissible witness against the other. (r)

Not competent in cases where there is no personal injury.

But this rule seems to be confined to cases where the charge affects the liberty or the person of the wife. Thus it has been decided, that in an indictment for a conspiracy in procuring a lady, then a ward in Chancery, to marry, the wife was not a good witness for one of the co-defendants, if her evidence might enure to the acquittal of her husband ;(s) and since she could not be admitted in favour of her husband, it follows necessarily that she could not be a witness against him.(t) So on an indictment against the

(1) See the trial, published by Murray, p. 257.

(m) Lord Audley's case, 1 St. Tr.
393. This case has been denied to be
law, but is now established by the
highest authorities. 1 Hale P. C. 301.
2 Hawk. P. C. c. 46. s. 77. Bull. N. P.
287. Rex v. Serjeant, 1 Ry. & Mood.
354.

(n) Woodcock's case, 1 Leach 500.
John's case,
ibid. 504. n. (a).

(0) By Lord Raymond on the au-
thority of Lord Audley's case, Rex

v. Azire, 1 Stra. 633. Bull. N. P. 287. (p) Bull. N. P. 287.

(q) Lady Lawley's case, ibid.

(r) 1 East. P. C. c. 11. s. 5. p. 455. In the Wakefields' case, p. 257, Hullock, B., said, "I take it, it is quite "clear now, that a wife is a compe"tent witness against her husband in respect of any charge which affects "her liberty and person."

(8) Rex v. Locker, 5 Esp. 107.
(t) 1 Ry. & Mood. 354.

wife of W. S. and others, for a conspiracy in procuring W. S. to marry, Abbott, C. J., refused to admit W. S. as a witness in support of the prosecution.(u)

In the case of high treason it has been said, that a wife shall High treason. be admitted against her husband, because the tie of allegiance is more obligatory than any other :(v) but there are high authorities to the contrary. (w)

of a woman

Whether a woman who has cohabited with a man as his wife, Competency but who is ready to swear she is not married to him, will be al- living as a lowed to give evidence on the part of the man, has been consi- wife. dered a doubtful question. (x) On a trial for forgery, Lord Kenyon refused to admit a woman as witness for the prisoner, whom in the course of the trial he had frequently alluded to as his wife, but afterwards, on hearing an objection taken to her competency, denied that they were in fact married.(y)

petent against

In the case of Rex v. Perry, Lord Chief Justice Gibbs stated, A wife comthat he could see no distinction between admitting a wife for and is so for her against her husband. "The King v. Perry," said Lord Chief husband. Justice Abbott, in Rex v. Serjeant, (3) was much talked about at "the time, and Chief Justice Gibbs expressed his surprise that 66 any doubt should have been entertained, that a wife was in all cases a competent witness for her husband, when admissible "against him."

competency;

Anciently the rule was, that if there were any objection to the Objections to competency of a witness, he should be examined on the voire when to be dire, (a) and it was too late after he was sworn in chief. (b) But taken; for the convenience of the Court, and the furtherance of justice, (as the incompetency may not at first be suspected,) the rule is now so far relaxed, that if it is discovered at any part of the trial, that a witness is incompetent, his evidence will be struck out. (c) With

how to be supported;

respect, however, to the power of questioning a witness for the purpose of discovering his incompetency, there is still a material difference, which will presently be pointed out, between an examination on the voire dire, and one after the witness has been sworn in chief.

The party against whom a witness is called, may examine him respecting his interest on the voire dire, or may call another witness, and produce other evidence in support of the objection.(d) The old rule is said to have been, (e) that if the witness were examined by the opposite party as to the fact of the objection, and denied it upon his oath, the party would not be at liberty to call afterwards another witness to prove it, in order to repel him from giving evidence, unless the other side acquiesced. But the modern and more convenient practice seems to be, that if the fact of incompetency is satisfactorily proved, the witness will be incompetent, although he may have ventured to deny it on the voire dire. And if the opposite party raise the objection of interest by independent evidence, and without putting a question to how repelled. the witness, then the party who has called him cannot be allowed to put a question to him in order to repel the objection. (ƒ)

Mode of examination on voire dire.

Ân examination on the voire dire is allowed to be conducted without strict regard to the general rule of evidence, which requires the best possible proof of a fact, and admits no other. Thus a witness may be examined as to the contents of a written document without a notice to produce; (g) for the party objecting could not know previously that the witness would be called, and consequently might not be prepared with the best evidence to establish his objection.(h) And the same relaxation is allowed in removing an objection of incompetency as in raising it. Thus, where in an action brought by a chartered company, a witness for the plaintiffs admitted, on the voire dire, that he had been a freeman of the company, but added that he was then disfranchised, Lord Kenyon ruled, that it was not necessary to prove the disfranchisement by the regular entry in the company's books, and that the witness was competent. (i) So where a witness was objected to as next of kin in an action by an administrator, but

expresses his opinion, that a party
who is cognizant of the interest of
the witness at the time he is called, is
bound to make his objection in the
first instance. Ev. Pt. IV. p. 757.

(d) Per Hullock, B., Wakefield's
case, p. 157.

(c) By Lord Hardwicke in Lord Lovat's case, 9 St. Tr. 647. See also the observations of Parker, C. J., in Rex v. Muscot, 10 Mod. 193., in which case it was asserted, but overruled, that in criminal cases there could be no examination on the voire dire.

(f) 1 Phil. Ev. 123.

(g) Howell v. Locke, 2 Campb. 15. (h) But if the witness produces the instrument on which the objection to his competency rests, it ought to be

read. By Abbott, C. J., Butler v. Carver, 2 Stark. 434.

(i) Butcher's Company v. Jones, I Esp. 162. See also Botham v. Swingler, 1 Esp.164. S.C. Peake N. P.C.219. where the witness was allowed to remove an objection of interest raised on the voire dire by his own statement that he had become a bankrupt, and his estate had been assigned. See also Rex v. Gisburn, 15 East. 57. So where a bankrupt called as a witness stated on the voire dire that he had obtained his certificate and released his assignees, Park, J., held him competent, without production of the release. Carlisle v. Eady, 1 Carr. & P. 234. See also Bunter v. Warre, 1 B. & C. 689.

on re-examination answered that he had released all his interest, this was held by Lord Ellenborough to remove the objection.(k)

But it is only on the voire dire that the general rules of evidence are thus relaxed, for although objections to the competency of a witness may now be made at any stage of the trial, yet they are not to be attended with the privileges of an examination the voire dire. Thus a witness cannot be cross-examined, for the upon purpose of shewing him incompetent, as to what interest he takes under a will, for the will itself should be produced. (7) So where a party, who calls a witness, attempts to remove the objection by other independent proof, and not on the voire dire, he will then be subject to all the general rules of evidence. Thus where an objection, on the ground of interest, had been raised by the defendant to a witness of the plaintiff, who called another to prove that the former witness had been released, it was held that he could not be allowed to speak of the contents of the release, but the release itself, if not lost or destroyed, must be produced. (m) So where the objection is not raised on the voire dire, but appears in evidence in any other manner, the other party in answering it is bound by the usual rules of evidence.(n)

It is no exception against a person giving evidence for or against Judge or juror a prisoner, that he is one of the judges or jurors who is to try competent. him. (0) And in the case of Hacker, two of the persons in the commission for the trial, came off from the bench, and were sworn, and gave evidence, and did go up to the bench again during his trial.(p)

SECTION II.

Of Privileged Communications, and other Matters which a
Witness may not Disclose.

tions.

A witness when free from all the preceding objections to his Privileged competency, is to be sworn to speak the truth, the whole truth, communicaand nothing but the truth. But this form of oath, absolute as it 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 attorney, solicitor, or counsel, and matters connected with the government of the country.(q)

(k) Ingram v. Dade, MS. 1 Phil. Ev. 124.

37.

(1) Howell v. Lock, 2 Camph. 14.
(m) Corking v. Jarrard, 1 Campb.

(n) Botham v. Swingler, 1 Esp. N. P. C. 165, by Lord Kenyon.

VOL. II.

2 R

(0) 2 Hawk. P. C. c. 46. s. 83.
(p) Ibid.

(q) It seems, however, to have once
been thought necessary to vary the
form of the oath on an occasion of
this sort. In the case of Spark v.
Middleton, 12 Vin. Abr. Ev. B. a. 4. p.

Between client

or counsel.

The law attaches so sacred an inviolability to communications and attorney, between a client and his legal advisers, that it will neither oblige 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.(r) The privilege of not being examined on such subjects is the privilege of the client, and not of the attorney or counsel;(s) and it never ceases. "It is not sufficient," said Mr. J. Buller, (t) "to say that the cause "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.(u)

Rule confined to legal advisers.

Arbitrator.

The privilege is strictly confined to communications made to counsel, solicitors, and attorneys. (x) No other, 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.(y) 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.(z) So a steward, servant, or private friend, is bound to disclose a communication, however confidential.(a) And in a case 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 propertytax, 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.(b) An arbitrator cannot be permitted to disclose, in an action for a malicious holding to bail, what trans

38. 1 Keb. 505, Mr. Aylott having been
counsel for the defendant, desired to
be excused to be sworn on the gene-
ral oath as witness for the plaintiff
to give the whole truth in evidence,
which the Court, after some dispute,
granted, and that he should only re-
veal such things as he either knew
before he was counsel, or that came
to his knowledge since by other per-
sons; and the particulars to which he
was to be sworn, were particularly
proposed, viz. what he knew concern-
ing the will in question; whether he
knew any thing of his own knowledge.

(r) Lord Say and Seale's case, 10
Mod. 41. Wilson v. Rastall, 4 Term
Rep. 759. in the judgment of Buller,
J. Sloman v. Herne, 2 Esp. N. P. C.
695. Rex v. Withers, 2 Campb. 578.
Parkhurst v. Lowten, 2 Swanst. 194,
221. Richards v. Jackson, 18 Ves.
474,

(z) Rex v. Sparkes, cited in Du Bonne v. Levette, Peake N. P. C. 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 recent decision of the twelve Judges, on a case reserved. See Gilham's case, post. Chap. II. s. 1.

(a) Vaillant v. Dodemead, 2 Atk. 524. Lord Falmouth v. Moss, 11 Price 455. (2) Lee v. Birrell, 3 Campb. 337.