judicial facts; it is not denied that a modicum of light, though dubious, may be sometimes thereby thrown upon the subject of investigation. In natural-philosophical research such observation is of the highest importance, as must strike the reader of any history of astronomical, chemical, or geological discovery; but the public time requires that some limit should be put to judicial investigation. It is often a task of extreme delicacy to determine whether collateral matter is too remote for admission or not; it is often difficult, if not impossible, to decide a priori, whether it may affect the issue; and in such cases it is usual for the Court to give credit to the pleader who offers it, for his ability to show at a later stage that it is material. To give instances which may illustrate my meaning. A custom in one parish or manor is no evidence of a similar custom in the one adjoining. So I apprehend of adjacent villages in the Mofussil. The fact that the defendant represented herself to several tradesmen as an unmarried woman, is not evidence to prove that she so represented herself to the plaintiff. So too on an indictment for stealing the property of A, and also receiving the property, knowing it to have been stolen, evidence of possession by the prisoner of other property, stolen from other persons, at other times, is not admissible to prove either the stealing or the receiving.(w) This last instance is very apposite; because we are all familiar with the habit of the Police to take up an "old offender;" and though, after conviction, it becomes very material to enquire into the previous character and occupation of the prisoner, he should not, according to the doctrines of the English Law(x) be prejudiced during his trial on a particular charge, by evidence that he is an adept in crime. This must suffice by way of illustration of the principle, the further discussion of which will be taken up under the heads of circumstantial evidence, and the rule that evidence must be confined to the issue.

So again with respect to the character of the witnesses. The cha

(w) R. v. Oddy, 2 Den. C. C. 264. The placitum is as follows:-

"On the trial of an indictment, containing counts for stealing, and for receiving the property of A, knowing it to be stolen, evidence of the possession, by the prisoner, of other property, stolen from other persons, at other times, is not admissible to prove either the stealing or the receiving.

See also R. v. Whitehead, 3 C. and K. 202. On an indictment for man-slaughter by reason of gross negligence, neither the one side nor the other can give evidence of other cases treated by the prisoner, per Maule J.

(x) In this respect, the Continental Courts differ widely from our own. With them it is usual to make inquiry into the whole previous life of the accused, a portion of the investigation of any specific charge with which he stands accused.

racter of a witness is always impeachable, and general evidence is receivable to show that he is not worthy to be believed on oath. But we cannot go into particular facts in his past history, because we should raise a collateral issue, foreign to that which the Court was assembled to try. Hence, where a witness is asked as to such facts or transactions, his answer, even if a denial, is binding, and evidence cannot be called to contradict it.

"There are two reasons," says Parke B., in Attorney General v. Hitchcock:-(y)

"Why collateral questions, such as a witness having committed some particular crime, cannot be entered into at the trial. One is, that it would lead to complicated issues and long enquiries without notice; and the other, that a man cannot be expected to defend all the acts of his life."

And Alderson B. says:-()

"The inconvenience of asking a witness about particular transactions which he might have been able to explain if he had reasonable notice that he would be required to do so, would be great—a man does not come into the witnessbox prepared to show that every act of his life has been perfectly pure: and you therefore compel the opposite party to take his answer relative to the matter imputed, as otherwise you might go on to try a collateral issue; and if you were allowed to try the collateral issue of the witness having committed some offence, you might call witnesses to prove that fact, and they again might likewise be cross-examined as to their own conduct ; and so you might go on proving collateral issue without end before you could come to the main one. The rules of evidence stop this in the first instance for the more convenient administration of justice; and you must therefore take the witness' answer, and indict him for perjury if it is false.”

And Rolfe B. says:—

"The laws of evidence as to what is receivable or not, are founded on a compound consideration of what abstractedly considered is calculated to throw light on the subject in dispute, and of what is practicable. Perhaps if we lived to the age of 1,000 years, instead of sixty or seventy, it might throw light on any subject that came into dispute if all matters which could by possibility affect it were severally gone into; and enquiries carried on from month to month as to the truth of everything connected with it. I do not say how that would be, but such a course is found to be impossible at present; and the rule therefore which has been established is, that you may contradict any part of that testimony only which is given in support or contradiction of the matter in question between the parties.”

But to this there is one exception; for now by Act II. of 1855, Sec. XXXIII.

"A witness in any cause may be questioned as to whether he has been convicted of any felony or misdemeanor, and upon being so questioned, if he either denies the fact or refuse to answer, it shall be lawful for the opposite party to prove such conviction."

Perhaps it has been thought that the character of every witness, although strictly speaking collateral to the issue, is nevertheless highly material; and that when the contradiction can be so very summarily established, as by the simple production of a former conviction, no delay of any importance would be entailed by thus placing the witness in his true light.

$69. The Law further interferes to prevent the reception of certain classes of evidence upon the ground of Public Policy. In these cases it will be found that there is nothing suspicious in the nature of the testimony offered, but it has been thought advisable from a consideration of the convenience of the public, and the peace and safety of society, that such testimony should not be given on compulsion, as in the case of an ordinary witness bound to give his evidence, however unwillingly. Such ground of exclusion operates upon; first, the disclosure of State secrets; secondly, privileged communications between Counsel and Client; thirdly, the testimony of Husband and Wife for or against each other; fourthly, the necessity of replying to criminating questions.

§ 70. Two remarks arise here. First, that it is obvious how intimately the peace and stability of society are concerned in throwing a protection around these subjects: for in what way could the affairs of Government be carried on, if it were liable to have all its secrets revealed at the pleasure of any one who might sue it;(a) how could the

(a) So in the case of Wadeer (Rajah of Coorg) v. The East India Company, 20 Jur., p. 407, which was an appeal from the decision of the Master of the Rolls, it was determined thus: "In a suit instituted against the East India Company to enforce a private right, the Company admitted the possession of documents relating to the matters in the bill, but refused to produce them, on the ground that some of them were political communications which, in the fulfilment of the political duty of the Company and its Governments in India, had passed between the Company and those Governments, solely with a view to the Government of India, and to enable the Company to perform its public duty in that behalf; and that the rest of them were political communications which passed between official agents of the Company in India in fulfilment of their public political duty, and for the purposes of the public Government in India :-Held, that the Court ought not to order production of such documents.

"Held also, that the protection afforded to political documents does not depend upon the question whether the person called on to produce them is a party to the suit, but on the ground of the mischief to the public which would arise from the disclosure of such documents," and Sir G. Turner, L. J., on delivering his Judgment spoke as follows:

"In the course of the argument a number of cases have been cited upon the subject of the obligation to produce documents of this description, and minute distinctions have been attempted to be drawn upon the part of the plaintiff as to the extent to which those cases

man in want of advice as to the security of his person, his character, or his estate, venture to consult his professional adviser(b) if his revelations were to be at the mercy of his adversary: what domestic happiness would not be jeopardized if all the confidence of husband and wife

have gone. I think, however, that it is perfectly obvious, on reading those cases, that they have proceeded upon a broad general principle of public policy. I cannot give my assent to the proposition that those cases have proceeded at all upon the ground that the parties who were called upon to produce the documents were not parties to the suit, and not parties who were sued in respect of the matters which were in question. I think they rest upon a higher and much more important principle, because I think it is impossible for any person not to see that the production of documents of this description is a matter of the greatest public and general importance. If we order the production of the documents in the present case, we must follow out that by ordering the production of documents in every case of a similar description where a civil right may exist against the East India Company; and see what the consequences would be that might follow. Pending political transactions between the Company and the various sovereigns in India, questions of private right may arise between the sovereigns of those dominions and the Company, or between the Company and the subjects of those dominions. A bill may be filed in this Court with reference to these transactions, and if this order which has been made by the Master of the Rolls be maintained upon that bill, all the official communications which have passed between the Company and their agents and their Governments in India might be produced, and this Court would be made the medium of the production of documents which may be of the utmost importance upon the question of peace or war, and upon the question of whether a war which has been instituted by the Government of India has been a just or an unjust war. Now, nothing could be more prejudicial to the public interests than such a course as that, and I am quite satisfied that the cases which have been decided have proceeded upon the principle of the danger to the public interests which would result from the production of such documents in cases of this description. I am satisfied that there is in this Court at least, a further principle applying to cases of this description, namely, that with matters of political relations between State and State, this Court, as I take it, has nothing whatever to do. They are matters which are excepted from municipal jurisdiction; and when, therefore. this Court is called upon to order the production of documents relating to such matters, it is, in truth, called upon to order the production of documents relating to matters which in their nature are not subject to the jurisdiction of the Court. I think that principle applies as much as the other principle. But the more important and more general principle is the ground of public policy, and of the prejudice to the interests of the public which would arise by the production of such documents." Two recent cases have to be added to the authorities on this point: Dickson v. The Earl of Wilton (1 F. and F. 419) and Beatson v. Skene (6 Jur. N. S., p. 751) which will be considered when we come to the subject of privileged communications. Post, § 355a.

(b) The leading case is that of Greenough v. Gaskell, 1 M. and K. 101, and the remarks of Lord Brougham are so important that they must be quoted somewhat at large. He says:--"We are here to consider not the case which has frequently arisen in Courts of Equity, and more than once since I came into this Court, of a party called upon to produce his own communications with his professional advisers. How far he may be compelled to do so, has, at different times, been a matter of controversy. And in two cases before Lord Lyndhurst, and once since I sat here, the principle has been acted upon, that even the party himself cannot be compelled to disclose his own statements made to his Counsel or Solicitor in the suit pending, or with reference to that suit when in contemplation. But the party has no general privilege or protection; he is bound to disclose all he knows, and believes, and thinks respecting his own case; and the authorities therefore are, that he must disclose also the cases he has laid before Counsel for their opinion, unconnected with the suit itself. "Here the question relates to the Solicitor, who is called upon to produce the entries he had made in accounts, and letters received by him, and those written (chiefly to his own agent) by him, or by his direction, in his character or situation of confidential Solicitor to the party; and I am of opinion that he cannot be compelled to disclose papers delivered, or communications made to him, or letters, or entries made by him in that capacity. To compel a party himself to answer upon oath, even as to his belief or his thoughts, is one thing; nay to compel him to disclose what he has written or spoken to others, not being his professional advisers, is competent to the party seeking the discovery; for such communications are not necessary to the conduct of judicial business, and the defence or prosecution of men's rights by the aid of skilful persons. To force from the party himself the production of communications made by him to professional men, seems inconsistent with the possibility of an ignorant man safely resorting to professional advice, and can only be justified if the authority of decided cases warrants it. But no authority sanctions the much wider violation of professional confidence, and in circumstances wholly different, which would be involved in compelling Counsel or Attorneys or Solicitors to disclose matters committed to them in their professional capacity, and which, but for their employment as professional men, they would not have become possessed of.

might at any moment be violated; what unfair advantage might be taken indirectly of a witness coming forward compulsorily, or in the discharge of a public duty, and in obedience to the law, if he were forced to give information, the substratum of his own future indictment?

"As regards them, it does not appear that the protection is qualified by any reference to proceedings pending or in contemplation. If, touching matters that come within the ordinary scope of professional employment, they 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. If this protection were confined to cases where proceedings had commenced, the rule would exclude the most confidential, and it may be the most important of all communications;-those made with a view of being prepared either for instituting or defending a suit, up to the instant that the process of the Court issued.

If it were confined to proceedings begun or in contemplation, then every communication would be unprotected which a party makes with a view to his general defence against attacks which he apprehends, although at the time no one may have resolved to assail him. But were it allowed to extend over such communications the protection would be insufficient, if it only included communications more or less connected with judicial proceedings; for a person often times requires the aid of professional advice upon the subject of his rights and his liabilities, with no reference to any particular litigation, and without any other reference to litigation generally than all human affairs have, in so far as every transaction may, by possibility, become the subject of judicial enpuiry. "It would be most mischievous," said the learned Judges in the common Pleas, if it could be doubted whether or not an Attorney, consulted upon a man's title to an estate, was at liberty to divulge a flaw." "The foundation of this rule is not difficult to discover. It is not (as has sometimes been said) on account of any particular importance which the law attributes to the business of legal professors, or any particular disposition to afford them protection, though certainly it may not be very easy to discover why a like privilege has been refused to others, and especially to medical advisers.

"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. If the privilege did not exist at all, every one would be thrown upon his own legal resources; deprived of all professional assistance, a man would not venture to consult any skilful person, or would any dare to tell his counsellor half his case. If the privilege 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. From the terms in which I have stated the proposition, it is manifest that several cases may arise, which, though apparently they are exceptions, yet do in reality come within it. Thus the witness, or the defendant treated as such, and called on to discover, must have learned the matter in question only as a Solicitor or Counsel, and in no other way if therefore he were a party, and especially to a fraud (and the case may be put of his becom ing informer after being engaged in a conspiracy), that is, if he were acting for himself though he might also be employed for another, he would not be protected from disclosing: for in such a case his knowledge would not be acquired solely by his being employed professionally. So if you examine the cases in which the protection has been refused, until the late Nisi Prius cases (of which I shall presently speak more in detail), you will find that they all range themselves within one or other of the following heads, which are deducible from the proposition and in strict consistency with its terms. Those apparent exceptions are, where the communication was made before the Attorney was employed as such, or after his employment had ceased; or where, though consulted by a friend because he was an Attorney, yet he refused to act as such, and was therefore only applied to as a friend; or where there could not be said in any correctness of speech, to be a communication at all; as where, for instance, a fact, something that was done, became known to him, from his having been brought to a certain place by the circumstance of his being the Attorney, but of which fact any other man, if there, would have been equally conversant (and even this has been held privileged in some of the cases); or where the matter communicated was not in its nature private, and could in no sense be termed the subject of a confidential disclosure; or where the thing disclosed had no reference to the professional employment, though disclosed while the relation of Attorney and client subsisted; or where the Attorney made himself a subscribing witness, and thereby assumed another character for the occasion, and, adopting the duties which it imposes, became bound to give evidence of all that a subscribing witness can be required to prove. In all such cases, it is plain that the