Sessions, and it was proposed to examine one of the grand jury who had acted as chairman at such sessions; Patteson, J., said, "this is a new point, but I should advise the grand jury not to examine him. He is the president of a court of record, and it would be dangerous to allow such an examination, as the judges of England might be called upon to state what occurred before them in court.' Gazard's case, 8 C. and P. 595 (a). It is however no exception against a person's giving evidence, either for or against a prisoner, that he is one of the judges appointed to try him. 2 Hawk. P. C. c. 46, s. 17. Bac. Ab. Evid. (A. 2.) In Hacker's case, two of the persons in the commission for the trial, came off the bench and were sworn, and gave evidence, and did not go up to the bench again during his trial. Kel. 12. Sid. 153.

A juror may give evidence of any fact material to be communicated in the course of a trial, but then he must be sworn, ante, p. 117; 3 Com. 375. In a criminal prosecution the jury may use that general knowledge which any man may bring to the subject matter of the indictment without being sworn, but if any one of the jurors has a particular knowledge on the subject arising from being in the trade; as for instance, as to the value of a watch in a case where it is essential to prove what it is worth; he ought to be sworn and examined as a witness. Rosser's case, 7 C. and P. 648 (b).

[ *182 ] *What other matters are privileged-disclosures by informers, &c.] Another class of privileged communications, are those disclosures which are made by informers, or persons employed for the purpose, to the government, the magistracy, or the police, for the purpose of detecting and punishing offenders. The general rule on this subject is thus laid down by Eyre, C. J. "It is perfectly right that all opportunities should be given to discuss the truth of the evidence given against a prisoner; but there is a rule, which has universally obtained, on account of its importance to the public for the detection of crimes, that those persons who are the channel by means of which that detection is made, should not be unnecessarily disclosed; if it can be made to appear that it is necessary to the investigation of the truth of the case, that the name of the person should be disclosed, I should be very unwilling to stop it; but it does not appear to me that it is within the ordinary course to do it, or that there is any necessity for it in the present case." Hardy's case, 24 How. St. Tr. 808.

What matters are privileged-disclosures by informers, &c.—to whom.] It is not of course every communication made by an informer, to any person to whom he thinks fit to make it, that is privileged from being inquired into, but those only which are made to persons standing in a certain situation, and for the purposes of legal investigation or state inquiry. Communications made to government respecting treasonable matters are privileged, and a communication to a member of government, is to be considered as a communication to government itself; and that person cannot be asked whether he has conveyed the information to government. Watson's case, 2 Stark. N. P. C. 136 (c). So a person employed by an officer of the executive government, to collect information at a

(a) Eng. Com. L. Rep. xxxiv. 542. (b) Id. xxxii. 670. (c) Id. iii. 283.

meeting, supposed to be held for treasonable purposes, was not allowed to disclose the name of his employer, or the nature of the connection between them. Hardy's case, 24 How. St. Tr. 753. Watson's case, Gurney's Rep. 159, 32 How. St. Tr. 100.

The protection extends to all communications made to officers of justice, or to persons who form links in the chain by which the information is conveyed to officers of justice. A witness, who had given information, admitted on a trial for high treason, that he had communicated what he knew to a friend, who had advised him to make a disclosure to another person. He was asked whether that friend were a magistrate, and on answering in the negative, he was asked who was the friend? It was objected, that the person by whose advice the information was given to one standing in the situation of magistrate, was in fact the informer, and that his name could not be disclosed. The judges differed. Eyre, C. J., Hotham, B. and Grose, J., thought the question objectionable, Macdonald, C. B., and Buller, J., were of opinion it should be admitted. Eyre, C. J. said, "Those questions which tend to the discovery of the channels by which the disclosure was made to the officers of justice, are not permitted to be asked. Such matters cannot be disclosed, *upon the general [*183] principle of the convenience of public justice. It is no more competent to ask who the person was that advised the witness to make a disclosure, than it is to ask to whom he made the disclosure in consequence of that advice; or than it is to ask any other question respecting the channel of information, or what was done under it." Hotham, B., said, that the disclosure was made under a persuasion, that through the friend it would be conveyed to a magistrate, and that there was no distinction between a disclosure to the magistrate himself, and to a friend to communicate it to him. Macdonald, C. B. said, that if he were satisfied that the friend was a link in the chain of communication, he should agree that the rule applied, but that not being connected either with the magistracy or the executive government, the case did not appear to him to fall within the rule; and the opinion of Buller, J. was founded on the same reason. Hardy's case, 24 How. St. Tr. 811.

What matters are privileged-official communications.] Upon the same principle it has been held, that communications between the governor and law officers of a colony, Wyatt v. Gore, Holt, N. P. C. 299 (a), between the governor of a colony and one of the secretaries of state, Anderson v. Hamilton, 2 Br. and Bingh. 156 (b), between a governor of a colony and a military officer, Cooke v. Maxwell, 2 Stark. 183 (c), are. privileged. In the latter case the communication was in writing, and Bayley, J., said, "if the document cannot on principles of public policy be read in evidence, the effect will be the same as if it were not in existence, and you may prove, not the contents of the instrument, but that what was done, was done by the orders of the defendant."

But where the information has been given, not to the government, or to any person connected with the administration of justice, nor to any other, for the purpose of being conveyed to such person, a disclosure of the circumstances attending it may be required. See the opinion of Macdonald, C. B., and Buller, J., Hardy's case, supra.

(a) Eng. Com. L. Rep. iii. 111. (b) Id. vì. 49, n. (c) Id. iii. 306.

So communications, though made to official persons, are not privileged so as to justify the exclusion of the evidence, where they are not made in the discharge of any public duty; as, for instance, a letter from a private individual to the Secretary of the Postmaster General, complaining of the conduct of the guard of a mail. Blake v. Pilfold, 1 Moo. and R. 198.

What matters are privileged-matters of state.] Matters communicated confidentially, in furtherance of the administration of justice, are, as it has been stated, privileged from disclosure, and upon the same grounds, matters of state, as official communications between different members or officers of government receive a like protection (1). Some cases of this kind have been already mentioned, ante, p. 182. So where, on a trial for high treason, Lord Grenville was called upon to produce a letter, intercepted at the post-office, and which was supposed to have come to his hands, it was ruled that he could not be required to produce it, for [*184] that secrets *of state were not to be taken out of the hands of his majesty's confidential subjects. Case cited by Lord Ellenborough, Anderson v. Hamilton, 2 Br. and Bingh. 157, (n.) (a). What passes in parliament is in the same manner privileged. Thus, on a trial for a libel upon Mr. Plunkett, a member of the Irish parliament, the speaker of the Irish house of commons being called and asked, whether he had heard Mr. Plunkett deliver his sentiments in parliament on matters of a public nature, Lord Ellenborough said that the speaker was warranted in refusing to disclose what had taken place in a debate in the house of commons. He might disclose what passed there, and if he thought fit to do so, he should receive it as evidence. As to the fact of Mr. Plunkett having spoken in parliament, or taken any part in the debate, he was bound to answer. That was a fact containing no improper disclosure of any matter. Plunkett v. Cobbett, 5 Esp. 136, 29 How. St. Tr. 71, 72, S. C. On the same ground, viz. that the interests of the state are concerned, an officer of the Tower of London was not allowed to prove that a plan of the Tower, produced on behalf of the prisoner, was accurate. Watson's case, 2 Stark. N. P. C. 148 (b) (2).

The two following cases, however, are at variance with the rule above stated. Upon the trial of Lord Strafford, the confidential advice given by that nobleman to the king, at the council table, was allowed to be disclosed, and given in evidence against him. Strafford's case, 1 St. Tr. 723, fo. ed. And in the case of the Seven Bishops, 4 St. Tr. 346, fo. ed., the clerk of the privy council was compelled to state what passed at the council-board, and even what the king himself said, although the counsel for the crown objected to it. However, in Sayer's case, 6 St. Tr. 288, fo. ed., it seems to have been considered, that minutes taken before the privy council were not to be divulged, and it cannot be doubted that at

(1) The officer, who apprehended the prisoner, is not bound to disclose the name of the person from whom he received the information which led to the prisoner's apprehension. The U. S. v. Moses, 4 Wash. C. C. Rep. 726. But a police officer will be compelled to answer at the instance of the commonwealth. Trial of Mina, Pamph. p. 9.

(2) The secretary of state is not bound to disclose any official confidential communications. But the fact whether a commission has been in his office or not, he is bound to disclose. Marbury v. Madison, 1 Cranch, 142. See 1 Burr's Trial, 180. Gray v. Pentland, 2 S. & R. 23.

(a) Eng. Com. L. Rep. vi. 49, n. (b) Id. iii. 288.

the present day the practice adopted in the case of Lord Strafford and of the Seven Bishops would be overruled, as contrary to the principles of the law of evidence, and injurious to the public interests.

What matters are privileged-where oath of office has been taken not to divulge. Where, for revenue, or other purposes, an oath of office has been taken not to divulge matters which have come to the knowledge of a party in his official capacity, he will not be allowed, where the interests of justice are concerned, to withhold his testimony. Thus, where the clerk to the commissioners of the property tax being called to produce the books containing the appointment of a party as collector, objected on the ground that he had been sworn not to disclose any thing he should learn in his capacity of clerk, Lord Ellenborough clearly thought that the oath contained an implied exception of the evidence to be given in a court of justice, in obedience to a writ of subpæna. He added that the witness must produce the books, and answer all questions respecting the collection of the tax, as if no such oath had been administered to him. Lee q. t. v. Birrell, 3 Campb. 337.

Proof of acts of parliament, &c.] The courts will take notice of public acts of parliament without their being specially proved, but private acts of parliament must be proved by a copy examined with the parliament roll, B. N. P. 225, unless the mode of proof be provided for by the act (1). Where there is a clause in the act, declaring that it shall be taken to be a public act, and shall be taken notice of as such by all judges, &c., without being specially pleaded, it is not necessary to prove a copy examined with the roll, or a copy printed by the king's printer, but it stands upon the same footing as a public act. Beaumont v. Mountain, 10 Bingh. 404 (a); Woodward v. Cotton, 4 Tyr. 689; 1 C. M. & R. 44. For other

(1) 1 Starkie on Ev., 196, n. 2. Ibid. n. 1. New Ed.

(a) Eng. Com. L. Rep. xxv. 183.

purposes, however, as with regard to the recital of facts contained in it, this clause does not give the statute the effect of a public act. Brett v. Beales, Moo. and M. 421 (a).

A private act may contain clauses of a public nature, and then the act, [*186] as far as these clauses are concerned, is to be regarded as a *public act. Thus a clause relating to a public highway, occurring in a private inclosure act, was held by Holroyd, J., to be provable in the same way as a public act. Utterby's case, Phill. Ev. 610.

By statute 41 G. 3, c. 90, s. 9, the statutes of England and (since the union with Scotland) of Great Britain, printed by the king's printer, shall be received as conclusive evidence of the statutes enacted prior to the union of Great Britain and Ireland, in any court of civil or criminal jurisdiction in Ireland; and in like manner the copy of the statutes of the kingdom of Ireland, made in the parliament of the same, printed by the king's printer, shall be received as conclusive evidence of the statutes enacted by the parliament of Ireland, prior to the union of Great Britain and Ireland, in any court of civil or criminal jurisdiction in Great Britain.

The journals of the lords and commons must be proved by examined copies. Lord Melville's case, 24 How. St. Tr. 683: Lord G. Gordon's case, 2 Dougl. 593 (1).

Proof of records.] Where there is a plea of nul tiel record, the record is proved by its production, if it be a record of the same court, Tidd. Pr. 801 if of an inferior court, by the tenor of the record, certified under a certiorari, issued by the superior court; if of a concurrent superior court, by the tenor certified under a writ of certiorari issued out of chancery, and transmitted thence by mittimus. Id.

Where nul tiel record is not pleaded, a judgment is proved either by an exemplification under the seal of the court, or by an examined copy. Such exemplifications under the seal of a public court in this country, are evidence without proof of the genuineness of the seal. Tooker v. Duke of Beaufort, Sayer, 297. But the genuineness of the seal of a foreign court must be proved. Henry v. Adey, 3 East, 221.

A record is not complete until delivered into court in parchment. Thus the minutes made by the clerk of the peace at sessions, in his minute book, are neither a record nor in the nature of a record so as to be admissible in evidence as proof of the names of the justices in attendance. Bellamy's case, Ry. and Moo. 172 (b). And where, to prove an indictment for felony found by the grand jury, the indictment itself, (which was in another court) indorsed "a true bill," was produced by the clerk of the peace, together with the minute book of the proceedings of the sessions, at which the indictment was found, the Court of King's Bench held that in order to prove the indictment, it was necessary to have the record regularly drawn up, and that it should be proved by an examined copy. Smith's case, 8 B. and C. 341 (c). Cooke v. Maxwell, 2 Stark. 183 (d). So an allegation that the grand jury at sessions found a true bill, is not proved by the production of the bill itself with an indorsement upon it, but a record regularly made up must be produced. Porter v. Cooper, 6 C. and P. 354 (e). 4 Tyr. 456. 1 C. M. and R. 388, S. C. So it has been ruled, on

(1) 1 Starkie on Ev., New Ed. 198, n. 1.

(a) Eng. Com. L. Rep. xxii. 344. (b) Id. xxi. 406. (c) Id. xv. 232. (d) Id. iii. 305. (e) Id. xxv. 435.